As to this policy, the only beneficiaries at Mr. Jose's death were the widow, Harriet, and his only surviving child, Helen. Each of these is entitled to receive one-half of the $10,000 received from the New England Mutual Life Insurance Company. 2. In the policy issued by the Massachusetts Mutual Life Insurance Company, for $400, the insurance was expressed to be payable to Mr. Jose's executors, after his death, and was expressed to be "for the express benefit of Nancy B., Helen M., and Jessica H., wife and children of the said Horatio N. Jose." At the date of the policy, Mr. Jose had a wife, Nancy B., and two children, Helen M. and Jessica H., the three persons named in the policy. His wife, Nancy B., and his daughter, Jessica H., died before him, so that, at the time of his own death, the only surviving person named as beneficiary in the policy was Helen M. The executors make no claim that the death of Nancy B., the wife, and of Jessica, the daughter, before the death of Mr. Jose, operated to turn their shares into his estate, to be disposed of under his will. Helen M., the survivor, now claims-First, the whole sum, as the only surviving beneficiary, on the ground of her survivorship; second (if her first claim is overruled), one-third in her own right, and another third (her mother's share) as the sole legatee under her mother's will, duly probated. The husband and daughter (the one as legatee, and the other as heir) of Jessica, deceased, claim one-third as Jessica's share, and also one-half of Nancy B., the mother's share, on the ground that her share was not capable of being devised, but fell to the shares of the other two beneficiaries upon her death. The presumption, naturally, is that the original beneficiaries were to take equal shares, one-third to each. This presumption is not disputed by any of the parties. There is nothing in the language of the policy indicating any intention that the surviving beneficiaries should succeed to the shares of the deceased beneficiaries. The exe. cutors make no claim that the shares of those deceased before Mr. Jose lapse to his estate. Where then do they go? If Mr. Jose had placed $400, or securities for that amount, in the hands of trustees, for the benefit of his wife and two children, to be turned over to them, or to his executors, for them, upon his decease, the right of each beneficiary therein would at once become a vested. right, capable of transmission, at least, in equity, and so firmly vested that even Mr. Jose could not have taken it from them: Kekewich vs. Manning, 1 De Gex, M. & G., 179; Stone vs. Hackett, 12 Gray, 227. What Mr. Jose did do was to contract with the life-insurance company to pay over that sum to his executors upon his death, for the benefit of his wife and children. He only varied the mode of providing a fund for the beneficiaries. Their right to the fund, as vested, will be recognized, in equity, as readily in the actual case as in the supposed case: Insurance Co. vs. Haley, 78 Me., 268. A few cases will sufficiently illustrate the principle. In Insurance Co. vs. Baldwin (15 R. I., 106), one Fifield procured an insurance upon his life, payable to his executors for the benefit of his wife and children. The wife joined in an assignment of the policy, and died before her husband. Held, that her right vested on the issuance of the policy, and passed by her assignment to her assignee. In Harley vs. Heist (86 Ind., 196), one Snyder insured his life for the benefit of his wife. She died before her husband, without disposing of her right under the policy. Held, that the administrator upon the wife's estate was entitled to the insurance money. The opinion of the Indiana court considers at length, with many citations of authorities, the transmissibility of such a right. See, also, Hooker vs. Sugg (N. C.) and notes; Bliss, Ins., § 318. We think it clear, both upon principle and authority, that the right of each beneficiary in this case became vested and transmissible upon the issuance of the policy. The counsel for Gwendolyn, the daughter of Jessica, further contends, however, that the share of Nancy B. did not pass by her will to Helen M., because not specifically named therein. The language in the will is "all the estate, real, personal, and mixed." The testatrix evidently meant all kinds of rights that were transmissible. The cases in which a special designation has been held necessary to dispose of life-insurance money by will are those of wills by the assured himself. In such cases, the statute makes special provision for the distribution of such money, and, if the assured wishes by will to change such disposition, it has been held he should make specific expression of such intention: Hathaway vs. Sherman, 61 Me., 466. The will we are considering here is not that of the assured, Horatio N. Jose, but that of Nancy B. Jose, the beneficiary. No such statute affects her will. Her right under this policy passed by her will to her daughter Helen. The result is that Helen M. is entitled to two-thirds, and Gwendolyn is entitled to one-third, of the $400 received from the Massachusetts Mutual Life Insurance Company. No order is made about costs. The executors can charge theirs to the estate of Mr. Jose, and be allowed the same in their accounts. Case remanded for decree in accordance with this opinion. UNITED STATES CIRCUIT COURT OF APPEALS. KENTUCKY LIFE & ACCIDENT INS. CO. v8. HAMILTON.* A condition on the back of the policy, under the title Assignments," provided that it should not be assigned unless notice and copy of the assignment were given to the company, nor unless the claim by assignee was subject to proof of interest; nor unless an insurable interest at time of assignment be shown by all claimants at time of claim; and claim by any creditor or assignee should not exceed actual indebtedness at time of death; and the policy, as to any excess, should be void unless the assignee bore the relation of wife, child, parent, brother, or sister. Held, In the case of one suing as the payee named in the policy, though in fact subsequently also a creditor, the absence of relationship did not affect the right of recovery, the provision not applying to such case. Held, That one might have au insurable interest, though not within the relations enumerated. It is too late, after verdict, to insist that an insurable interest should have been set out. LURTON, C. J. (on petition for rehearing, after discussing points not germane to insurance). The argument in support of the petition for a rehearing presents two questions of law as arising upon the pleadings. These questions are―First, that the pleadings do not show that the plaintiff bore to the assured the relation of "wife, child, parent, brother, or sister," and therefore she was debarred from any recovery on the policy in excess of the indebtedness of the assured to her, by operation of the condition found on back of contract of insurance; second, that, whether the condition indorsed on the policy was applicable to plaintiff or not, the policy was void, as a wager policy, for any excess over plaintiff's claim as a creditor. We will deal with these questions in the order stated. The condition relied upon as limiting plaintiff's recovery to the amount of her claim as a creditor was upon the back of the policy exhibited as a part of the petition. It was a single condition, and appears under the title "Assignments." It was in these words: Assignments: This certificate shall not be assigned or transferred unless notice and copy of the assignment be given to said company, nor unless a claim hereunder made by assignee be subject to proof of interest, nor unless the amount recoverable hereunder by such assignee, an insurable interest, existing at the time of the assignment or transfer must be shown by all claimants at the time of claim hereunder; and claims by any creditors as beneficiary * Decision rendered, May 8, 1894. or assignee shall not exceed the amount of the actual bona fide indebtedness of the member to him existing at the time of said death, together with any payments made to the company under this certificate or policy of insurance by such creditor, with interest, and this certificate or policy of insurance, as to all amounts in excess thereof, shall be void (except such assignee shall bear to the member the relation of wife, child, parent, brother, or sister), be limited to the value of the interest proven. The answer denied that plaintiff bore either of the relations mentioned to the assured, but admitted that she was a creditor to the extent of $496.92, and entitled, as a creditor, to recover to that extent, but denied any other or greater liability. The reply of plaintiff concluded the pleadings. Among other things, this reply denied that the policy sued on had been issued to her as a creditor, or to secure any indebtedness from the assured to her, and insisted that the indebtedness mentioned in the answer "was a mere incident growing out of the transactions of insurance set forth in the petition," and that the claim of this plaintiff upon the defendant, alleged in the petition, was not affected by her relation as a creditor, but was based upon the express contract of the defendant, for a valid consideration, to pay to the plaintiff the sum of $5,000 at the death of Mrs. Ritter, the assured. The reply further denied that either the said assured or the plaintiff "were actuated by any speculative motive, but both acted in good faith, without fraud." Under the Lentucky practice act, "every material allegation of a pleading must, for the purposes of the action, be taken as true, unless traversed." Under this rule of pleading, every material fact set out in the defendant's answer as a defense must be taken as true, unless traversed either by the petition or reply. The allegation that the plaintiff did not bear to the assured the relation of "wife, child, parent, brother, or sister," is not traversed by the petition or reply, and must be taken as true. How does that fact affect the judgment? The answer depends upon the application of the condition on back of policy to the plaintiff. If plaintiff is within that condition, then her recovery must be limited by it. Upon full and careful consideration, we agree with the judge who tried this case on circuit that the plaintiff is not included in, nor affected by, the condition relied upon to limit her recovery. That provision or condition was intended to affect transfers of the certificate of insurance, and limits the recovery of an assignee. Plaintiff was not an assignee, and did not sue as an assignee. She sues as the payee named in the contract of insurance, and she must stand or fall upon that relation to the contract. Appellant's contention that every beneficiary who happens to be a creditor at the death of deceased shall be limited in recovery to the amount of the debt, unless it is also shown that such creditor bore one or the other of the relations mentioned, is not supported by any fair construction of the words of the condition. That insistence rests alone upon the occurrence of the word "beneficiary" in the body of the condition, when referring to the extent to which an assignee might recover by reason of a creditor relation. The language of this condition is the language of the defendant company. If its meaning be not plain, and it needs construction, it should be most strongly construed against the maker of the condition Insurance Co. vs. Wright, 1 Wall., 468. Looking to the signboard placed over the provision, and looking to all parts of the condition, we are of opinion that it was never intended to apply to any except transferees or assignees of the policy. But, if wrong in this, it is clear that if the beneficiary was not made such as a creditor, nor because of that relation, the subsequent creation of a creditor relation is not affected by this provision. Plaintiff, in her reply, denied that she was made beneficiary as creditor, and insisted that her debt arose subsequently, and as a mere incident. This issue must, on this question, be treated as settled in favor of plaintiff. It follows that if she was not made beneficiary as creditor, nor because of that relation, this provision cannot affect plaintiff, even if it was intended to limit the recovery of a creditor beneficiary to the amount of the debt so secured. Appellant's second proposition is predicated upon the assumption that it is essential to recovery, in any action upon a contract of life insurance, and the plaintiff shall aver and prove an insurable interest in the life of the assured, and that in default of such averment the contract will be adjudged void, as a mere wager policy. The answer presented no other issue than that presented by the indorsed condition we have already discussed. It set out that plaintiff was not the "wife, child, parent, brother, or sister," of the assured, and sought to defeat a recovery upon the assumption that unless one of these relations existed there can be no recovery. As the reply was silent concerning this denial, it operated as an admission that none of those relationships existed. In support of the general proposition that a contract of insurance is void, as against public policy, and as a mere gambling speculation, unless the beneficiary has some insurable interest in the life of the person insured, appellant cites Basye vs. Adams, 81 Ky., 375; Insurance Co. vs. France, 94 U. S., 561; Crotty vs. Insurance Co., 144 U. S., 621; Insurance Co. vs. Schaefer, 94 U. S., 457. But there are other relations than those mentioned in the condition indorsed, and, if that condition has no application, then an action is maintainable by the plaintiff, unless the policy is void, as a mere wager policy. In the case of |