#### CHARLES R. STRAYHORN v. WYLANTA R. AYCOCK.

(Filed 1 February, 1939.)

1. Insurance § 36a—

A policy payable to insured’s estate, nothing else appearing, vests upon delivery in insured, and upon his death, in his personal representative, who may collect same only in her representative capacity.

*442. Executors and Administrators § 15a — Claim oí funds from insurance policy payable to the estate is a claim against the estate.

Claimant contended that he took out and paid the first premiums on a policy of life insurance on his brother to secure sums advanced for his brother’s education, that by mistake his brother’s estate was named beneficiary instead of himself, that he surrendered the policy for collection to his brother’s executrix. *Held:*The executrix could collect the proceeds of the policy only in her representative capacity, and the claim constitutes a claim against the estate and not against the executrix personally.

3. Executors and Administrators § 19 — Action against estate for proceeds of insurance funds held barred by laches.

This action was based upon plaintiff’s claim to the proceeds of an insurance policy payable to the estate, plaintiff contending that the policy was taken out by him to secure him for funds advanced testator, and that he turned the policy over to the executrix for collection under an agreement with her to collect same and pay the proceeds of the policy to him. It appeared that the executrix used none of the funds personally, but expended same in payment of debts of the estate, and that this action was not instituted until some fourteen years after testator’s death, plaintiff claiming disabilities preventing the bar of the statute. *Held:*The rights of creditors having intervened, the record discloses conduct on the part of the plaintiff barring the action for laches under the maxim that equity aids the vigilant, not those who have slept upon their rights.

4. Trusts § 15 — Parol trust fails upon failure of pi*oof that alleged constructive trustee received benefit of funds.

The evidence considered in the light most favorable to plaintiff tended to show that he delivered an insurance policy payable to the estate to the executrix under an agreement that she would collect same and turn the proceeds over to him, plaintiff claiming an equitable right in the proceeds under his contentions that he took out the policy and paid the first premiums thereon to secure him for money advanced to his brother, the insured. The evidence tended to show that the proceeds of the policy were used to pay creditors of the estate, and there was no evidence that the executrix used any of the funds personally. *Held:*Proof of a parol trust fails, and plaintiff may not recover same against the executrix in her individual capacity.

Appeal by defendant from *Parlcer, J.,*at May-June Term, 1938, of Durham:.

Civil action to recover proceeds of life insurance policy on tbe life of, and payable to the estate of Isaac R. Strayhorn, deceased, allegedly collected upon parol agreement of defendant to collect and pay over same to plaintiff for whose alleged benefit the policy was issued.

Isaac R. Strayhorn, younger brother of plaintiff, and former husband of defendant, died 3 September, 1923, in Nice, France, as result of injuries received in wreck of public bus in which he and his wife were traveling. He left a last will and testament in which, after directing payment *45of his debts, he gave all his property to his wife, the defendant, and named her as executrix. At time of his death, Policy No. 31980 of insurance for $1,000, issued by Jefferson Standard Life Insurance Company in 1913, payable to his estate, was in effect.

Evidence introduced by plaintiff tends to show: That he advanced to his brother, Isaac E. Strayhorn, for his college education approximately $2,000; that during Isaac’s senior year in college plaintiff had said policy of insurance taken out for his protection; that he received the policy from insurance company and, without reading it, filed it in his safe in the office of clerk of Superior Court of Orange County, N. O., which position he then held; that he paid the premiums for three or four years until Isaac “got on his feet”; that the policy remained in said safe until after the death of Isaac E. Strayhorn; that, upon writing to the insurance company with respect to paying the insurance, he was informed that the policy was payable to the estate of insured and that the company would only make payment to proper representative of the estate; that this was the first information or knowledge he had that he was not named as the beneficiary; that in November, 1923, after the body of his brother was brought home and buried, he told defendant the circumstances under which he had taken out the policy; that he could not collect it; that he was advised that the only way he could collect would be through and by the executor, and that he said to her: “Wylanta, I would like for you to collect this money now, and turn it over to me because I took it out on Ike to help him reimburse me for money spent on him for his education,” and that she said: “Charles, I will be glad to do it”; that he went off and had no further conversation with her, but in a few days from Hillsboro, N. C., wrote her a letter in which he said, in part: “I enclose herewith the Jefferson Standard Life Insurance Company policy for $1,000 about which I was speaking to you the other day. Isaac was indebted to me in sum of about $2,000 for his education, for which he had promised to reimburse, however I never took any note from him or had him to secure me in any way, believing that he would some day be financially able to meet all his obligations, inasmuch as I had great faith in his ability and his possibilities as a lawyer. If in your opinion the above is a true statement, and the proceeds of Isaac’s estate are sufficient to meet his obligations, I would be glad to talk the matter over with you as I am sure we can come to a satisfactory adjustment of the same”; that he filed no claim with defendant other than this; that in December, 1924, he suffered a nervous breakdown and was confined to his room almost continuously from then until two years ago, except for time he was in Tucker Sanitarium at Eichmond; that he didn’t get out of doors for eleven years and did no work of any kind during that period until July, 1937; that he made no further demand *46upon ber for payment until be bad bis attorney write letter 13 September, 1937, in which there was set forth a rehearsal of plaintiff’s contention of the circumstances under which the policy of insurance was issued and of the alleged promise of defendant to collect same for plaintiff, and of her failure to do so, with demand for payment.

On cross-examination plaintiff testified: That he guessed he had changed his tune, and now claims that he has security; that his recollection now, fourteen years later, may be better than it was in 1923; that he is unable to explain statements in his letter of November, 1923; that he does not know why he has waited so long to bring this lawsuit.

Defendant denies that plaintiff claimed the policy of insurance was taken out for his benefit, denies any promise to collect insurance for plaintiff, denies that plaintiff filed any claim against the estate, and pleads the 7-year statute of limitations, C. S., 438, the 12-months statute of limitations, 0. S., 101, and the statute of frauds, C. S., 987, in bar of plaintiff’s right to recover.

Defendant introduced in evidence, among others, these portions of plaintiff’s complaint: “That plaintiff did not file with defendant as administratrix for the amount due him by his brother, the defendant’s husband,” and “That on August 2, 1925, the defendant filed a final report as executrix of the estate of her deceased husband which showed the total disbursements to be $1,831.02, which left a net deficit after deducting the receipts of $811.02, which she stated in her report had been paid from her own private funds.”

Defendant further offered evidence tending to show: That in due course she filed inventory and annual and final accounts and same were duly recorded; that in inventory she listed as an asset of the estate “life insurance policy No. 31980, issued by Jefferson Standard Life Insurance Co. on life of Isaac R. Strayhorn payable to his estate for $1,000”; that in her annual report and final account as executrix she listed as receipts $1,012.80, specifying as part thereof the $1,000 from the said insurance policy, and showed disbursements in approximately the sum of $811.02 more than she had received; that she paid debts of the estate from the estate funds as long as same lasted and then, as a matter of pride and out of respect for her husband, from her own private funds; and that final report was audited and approved by the clerk on 11 August, 1926.

The case was submitted on these issues, which the jury answered as follows:

“1. Did the plaintiff take out a policy of life insurance in the sum of $1,000 with the Jefferson Standard Life Insurance Company on the life of Isaac Strayhorn in November, 1913, to protect himself for advances made to Isaac Strayhorn while in college, with instructions to the agent that it should be made payable to himself, and by mistake it was made *47payable to tbe estate of Isaac Strayborn, and did tbe plaintiff pay tbe annual premiums on said policy for first four or five years only? Answer : ‘Yes.’

“2. After Isaac Strayborn’s death and after tbe defendant bad qualified as executrix of bis estate, did tbe plaintiff and tbe defendant enter into an agreement tbat tbe plaintiff would turn over tbe said life insurance policy on tbe life of Isaac Strayborn for $1,000 to tbe defendant and tbat tbe defendant would collect tbe same and pay it over to tbe plaintiff? Answer: ‘Yes.’

“3. Is tbe plaintiff’s action barred by tbe statute of limitations? Answer: ‘No.’

“4. In wbat amount, if any, is tbe defendant indebted to tbe plaintiff ? Answer: ‘$1,000.00.’ ”

From judgment tbereon defendant appealed to tbe Supreme Court, and assigns error.

*S. M. Gattis, Jr., and B. O. Everett for plaintiff, appellee.*

*Guthrie & Guthrie for defendant, appellant.*

WiNBORNE, J.

Careful consideration of tbe entire record on tbis appeal leads to tbe conclusion tbat tbe court below erred in refusing to allow motions for judgment as in case of nonsuit, made by defendant in apt time, to wbicb exceptions are preserved, and bere assigned as error.

While plaintiff states bis alleged cause of action against tbe defendant as an individual, tbe proof shows tbat in dealing with her with respect to tbe alleged agreement to collect on tbe insurance policy and pay over tbe proceeds to him, be, of necessity, dealt with her in her representative capacity as executrix of tbe last will and testament of tbe insured. Tbe policy, on its face and nothing else appearing, being payable to tbe estate of tbe insured, as soon as delivered vested in him and “like any other chose in action became an integral part of bis estate, subject to every rule of property known to tbe law,” *Burton v. Farinholt,*86 N. C., 260, and, upon bis death, vested in tbe executrix, *Price v. Askins,*212 N. C., 583, 194 S. E., 284; *Linker v. Linker,*213 N. C., 351, 196 S. E., 329, in wbicb capacity only bad she tbe right to make tbe collection. When she collected, she received the money as executrix. Eights of creditors then intervened, and if plaintiff bad superior rights tbe way was then open to him to assert them in orderly and legal procedure. Having bad years of experience as clerk of Superior Court in supervising and handling of estates and trust funds, be must have known tbat defendant as an individual bad no legal right to collect tbe proceeds of tbe insurance policy and pay them over to plaintiff. If she bad *48agreed to do so, be would have been a party to tbe wrong, and could not take advantage of it.

If it be conceded tbat plaintiff bad an equitable interest in tbe policy, and tbat tbe conversation between bim and defendant transpired as stated by bim, and tbat tbe policy was delivered to defendant in consequence thereof, taking tbe evidence in tbe light most favorable to plaintiff and giving to bim tbe benefit of every reasonable intendment and reasonable inference to be drawn therefrom, tbe most tbat appears is tbat plaintiff appointed tbe defendant bis agent to collect tbe policy and pay over tbe money to bim. There is no evidence tbat she, in her individual capacity, collected or received any of tbe proceeds of tbe policy. Hence, proof of parol trust fails.

In any event, tbe conduct of tbe plaintiff portrayed in this record manifests such laches as would bar tbe action. Equity aids tbe vigilant, not those who have slept upon their rights.

Tbe judgment below is

Reversed.