174 La. 482

#### Succession of DUMESTRE.

No. 31262.

Supreme Court of Louisiana.

Feb. 29, 1932.

Rehearing Denied March 30, 1932.

Paul W. Maloney and J. A. Morales, both •of New Orleans, for appellants Joseph Drumm and others.

Weiss, Yarrut & Stich, of New Orleans, for appellees.

ST. PAUL, J.

This is an action to set aside a will made in due form by the deceased before a notary and the requisite' number of witnesses. The only grounds set up for alleged insanity of the deceased are that he was a very sick man at the time the will was made and for some time before that, and that he died some 12 hours after making the' will; and the testimony of two physicians who never saw the deceased and testified only from the chart kept at the hospital where he died, that in their opinion the deceased was incapable of making the will which he did.

But the will itself bears no sign of an incapacitated mind; it merely passes over distant relatives and leaves the estate to close friends of long standing. And the testimony of the physicians who attended him, of the hospital attendants, of the'friends who visited him, and of the notary and witnesses, is that the deceased was possessed of all his faculties when he made the will, and did in fact make it of his own free choice and desire.

The district judge saw no merit in plaintiff’s contention; nor do we.

Plaintiffs’ contention that the proceeds of certain life insurance policies form no part of the estate of the deceased and therefore should not be distributed under his will, is without the least merit. If they form no part of the estate, then plaintiffs, the legal heirs of the deceased, have themselves no legal right to those proceeds. But the fact is that the proceeds of life insurance policy form no part of the estate of the deceased only when the policy is made payable to some designated beneficiary and not to the estate of the deceased. See Sherwood v. New York Life Ins. Co., 166 La. 829, 118 So. 35, and authorities there cited. Otherwise, that is to say, when the policy is payable to the estate of the deceased, the proceeds thereof form ipsissimis verbis part of said estate, and inure, of course, to the benefit of the heirs, legal or testamentary; even though such proceeds be not available for the payment of the creditors of the deceased. See Act No. 88 of 1916. If this were not so, the proceeds of such life insurance would belong to nobody, and might be taken by the state or retained by the insurance company, to the prejudice of all heirs both legal and testamentary; which is, of course, untenable. The expression in Succession of Aronson, 168 La. 887, 123 So. 608, 610, that the proceeds of life insurance in favor of the estate of a deceased “formed no part of his estate,” was somewhat too broad. Such proceeds, it is true, are not available for the *36payment of the debts of the deceased (Act No. 88 of 1916); and it is in that sense only that they “form no part of his estate.” Thus:

What the court meant to say [in Succession of Aronson, 168 La. 887, 123 So. 608] was that the proceeds or avails of life insurance policies with respect to creditors and quoad the creditors of the insured, formed no part of the estate of the deceased. Succession of Erwin, 169 La. 877, 126 So. 223. Cf. Succession of Cotton, 170 La. 828, 129 So. 361.

Decree.

For the reasons assigned, the. judgment appealed from is affirmed.