601, where the proceeds of a policy were held not to fall within any of the exceptions as to the right of a married woman to deal with her property as a feme sole.

An assignment after the death of insured has been held valid as against a subsequent attaching creditor, though no notice of the assignment had been given the company.

Columbia Bank v. Equitable Life Assur. Soc., 70 N. Y. Supp. 767, 61 App. Div. 594. See, however, Linder v. Fidelity & Casualty Co., 52 Minn. 304, 54 N. W. 95, where notice of an assignment of the proceeds of a life policy to an agent authorized merely to solicit insurance, countersign and deliver policies, and collect premiums, was held not to have constituted notice to the company.

An assignee after the death of insured takes, of course, no greater rights than those of his assignor.

Ruth v. Katterman, 112 Pa. 251, 3 Atl. 833; Shugar v. Garman (Pa.) 4 Atl. 56; McQuillan v. Mutual Reserve Fund Ass'n, 87 N. W. 1069, 112 Wis. 665, 56 L. R. A. 233, 88 Am. St. Rep. 986, rehearing denied 88 N. W. 925, 112 Wis. 665, 56 L. R. A. 233, 88 Am. St. Rep. 986.

4. ACTIONS TO DETERMINE RIGHTS.

(a) In general.

(b) Pleading.

(c) Evidence.

(d) Trial and review.

(a) In general.

The rights given a creditor by statute in a policy for the benefit of insured's wife may be declared by a court of equity, in an action to which all persons interested are made parties, though the policy is not yet due (Stokes v. Amerman, 121 N. Y. 337, 24 N. E. 819, affirming 55 Hun, 178, 8 N. Y. Supp. 150). So a suit in equity may be brought against an insurance company and the claimant under a policy to establish the right of plaintiff as against the claimant to whatever may be due on the policy, leaving the liability of the company to be determined in a subsequent action at law (Mahr v. Bartlett, 53 Hun, 388, 7 N. Y. Supp. 143). And a suit in equity may be maintained to enforce performance of an agreement by beneficiaries named in a certificate to surrender the certificate and to prevent the association from paying the benefit to them, as a judg

ment in an action at law against the beneficiaries might prove unavailing if they were found insolvent (Brett v. Warnick, 44 Or. 511, 75 Pac. 1061, 102 Am. St. Rep. 639). But the probate court has no jurisdiction to adjudicate whether the proceeds of policies on the life of a decedent belong to the estate or to the designated beneficiary (White v. White, 11 Tex. Civ. App. 113, 32 S. W. 48).

Pendency of a suit by the executrix of insured against a beneficiary association on a benefit certificate, claiming that insured's children are entitled to all the insurance, though making others, named as beneficiaries and claiming part of the insurance, defendants, does not prevent such other beneficiaries maintaining an original bill against the association on the certificate, especially where after the death of insured they have assigned all or part of the amount due them to a person not a party to the bill by the executrix (Clement v. Clement [Tenn.] 81 S. W. 1249).

Where the proceeds of a policy have been paid to a creditor holding the policy as collateral, the personal representatives may recover the surplus remaining after satisfaction of the debt in an action for money had and received.

King v. Van Vleck, 109 N. Y. 363, 16 N. E. 547; Sharp v. Rose, 66 Hun, 627, 20 N. Y. Supp. 826.

But where the surplus has been paid to the administrator, the remedy of the insured's heirs is an action in the nature of an application for an order requiring the administrator to pay the money over to them, and not an action upon a common count for money had and received (Johnson v. Alexander, 125 Ind. 575, 25 N. E. 706, 9 L. R. A. 660).

A policy issued by a New York company to a person who was domiciled and died in Kentucky, and payable to his personal representative, is not enforceable in Louisiana by the guardian of the minor children of the insured merely because the policy is found there (Moise v. Mutual Reserve Fund Life Ass'n, 45 La. Ann. 736, 13 South. 170).

The widow of an insured has no interest in a policy made payable to his legal representatives, and which had also been assigned by him to another, which will enable her to maintain an action thereon, where it appears that the deceased owed debts at the time of his death, and that his estate has not been settled (Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49, 51 C. C. A. 36). In a suit by the husband's creditors against the administratrix of the wife, to determine

the distribution of the proceeds of a policy on the husband's life, the administrator of the husband's estate, though he may be a proper party defendant, is not a necessary one (Tompkins v. Levy, 87 Ala. 263, 6 South. 346, 13 Am. St. Rep. 31). So, in a suit to enjoin the collection of the proceeds of a policy fraudulently conveyed to trustees, the cestuis que trustent need not be joined as defendants, the claim being adverse to the trust (Vetterlein v. Barnes, 124 U. S. 169, 8 Sup. Ct. 441, 31 L. Ed. 400, affirming [C. C.] 16 Fed. 759). In a suit involving the disposition of the proceeds of a policy, the court may appoint a trustee to defend the rights of the legal representatives of a beneficiary, instead of an administrator ad litem (United States Casualty Co. v. Kacer, 169 Mo. 301, 69 S. W. 370, 58 L. R. A. 436, 92 Am. St. Rep. 641).

Under a statute providing that when a complete determination of the controversy cannot be had without the presence of other parties the court must direct them to be brought in, an assignee is properly made a party to an action by insured's personal representative against the insurer (Hasberg v. Moses, 80 N. Y. Supp. 867, 81 App. Div. 199, affirming 39 Misc. Rep. 25, 78 N. Y. Supp. 751). And a statute providing that in all actions in which a liability is admitted by defendant, and the amount is not in dispute, if such amount is claimed by another party than the plaintiff, and the defendant has no interest in the controversy, the court may order such party made defendant, and thereupon the rights of the several parties shall be determined, and that the amount may be paid into court by defendant, and defendant stricken out as a party, covers an equitable interest arising from the assignment of a certificate of membership in a mutual benefit association (Brierly v. Equitable Aid Union, 170 Mass. 218, 48 N. E. 1090, 64 Am. St. Rep. 297).

A bill of interpleader may be maintained by an insurance company where the doubt as to which of the claimants of the fund is entitled thereto is a doubt as to matters of law, and not as to matters of fact (Sovereign Camp Woodmen of the World v. Wood, 100 Mo. App. 655, 75 S. W. 377). But the interpleader will not lie where the company has assumed inconsistent obligations to the adverse claimants (Supreme Council of Legion of Honor v. Palmer, 107 Mo. App. 157, 80 S. W. 699).

Where a company delivered a check to the beneficiary, which was received in full payment and in satisfaction of the policy which was surrendered, the company was thereby estopped from denying that the beneficiary was the real party in interest when the

check was executed (Northwestern Mut. Life Ins. Co. v. Kidder, 162 Ind. 382, 70 N. E. 489, 66 L. R. A. 89). And where, at the time a policy matured, insurer might have properly paid the amount due thereon to the assignee on demand, but instead refused payment, and thereafter one of the assignors served it with notice of a claim. to such proceeds, insurer was not thereafter entitled to an order of interpleader. (Kirsop v. Mutual Life Ins. Co., 84 N. Y. Supp. 95, 87 App. Div. 170). So an insurance company which has been garnished in one state by a creditor of the beneficiary, and sued in another state by the beneficiary, cannot at once, and before either case has proceeded to judgment, maintain a bill to require the two to interplead (Hartford Life Ins. Co. v. Weed, 75 Vt. 429, 56 Atl. 97).

Where an insolvent corporation was in the hands of a receiver at the time a liability on a policy insuring its managing stockholder accrued, any claim of the corporation to share in the proceeds of such policy on the ground that the premiums had been paid from the corporation's assets was enforceable only by such re ceiver; and hence the insurance company was not entitled to interplead the beneficiary and creditors of the corporation, who had asserted a claim to the proceeds of such policy, and notified the insurer thereof.

Northwestern Mut. Life Ins. Co. v. Kidder, 162 Ind. 382, 70 N. E. 489 66 L. R. A. 89; Northwestern Mut. Life Ins. Co. v. McKeen, 162 Ind. 694, 70 N. E. 1112.

(b) Pleading.

As an assignment, absolute or conditional, of a policy of life insurance, taken out by a person on his own life, is only valid in the hands of the assignee to the extent of the money paid by him with interest thereon, there is equity in a bill filed by the assignor of a life insurance policy, which avers that it was assigned to the defendant as collateral security for his debt, and that upon default in the payment of such debt the defendant, as assignee, surrendered the policy and collected the cash surrender value thereof, which exceeded the amount due the defendant with interest, and which seeks to charge the defendant as trustee for the amount he received on the surrender of the policy in excess of the amount due him with interest (Culver v. Guyer, 129 Ala. 602, 29 South. 779). So where an assured changed a policy in which his children were beneficiaries so as to make it payable to one of them, a bill by one of such children alleging that she had a vested right in the policy because of an

agreement as to the distribution of her parent's estate prior to the father's death, and that the ultimate change of beneficiaries was induced by fraud and undue influence, stated a cause of action, and hence was not subject to demurrers relying on facts showing such change to have been valid under the laws of the association, which did not appear on the face of the bill (Goodrich v. Bohan [Tenn. Ch. App.] 52 S. W. 1105).

A bill of interpleader alleging that on the death of a member his widow, who was formerly beneficiary in his certificate, claimed the amount thereof, alleging that a substitution of the beneficiaries which had been made was the result of undue influence, did not show that one of the contesting claimants was clearly entitled to the fund, but stated facts entitling complainant to relief (Sovereign Camp Woodmen of the World v. Wood, 100 Mo. App. 655, 75 S. W. 377). So a bill has been held good on demurrer, though it averred complainant's right to deduct a certain sum from the face of the policy for a semiannual premium, as the demurrer admitted the right to make such deduction, and therefore disclosed no interest in complainant in the controversy (Provident Savings Life Assur. Soc. v. Loeb [C. C.] 115 Fed. 357). And in Morrill v. Manhattan Life Ins. Co., 183 Ill. 260, 55 N. E. 656 (affirming 82 Ill. App. 410), it was held that a bill which admitted the issuance of policies on decedent's life in his wife's favor, and receipt of proof of death, and alleged that one of the defendants claimed to hold an assignment of the policies from the wife, and had instituted actions thereon, which were pending, and that the wife, and another defendant claiming through her as assignee of a part of the proceeds of the policies, had notified insurer that they were entitled to the proceeds, and had notified it not to pay such proceeds to the alleged assignee, and threatened to sue it thereon; that insurer held the amount of the policies, and has always been willing to pay the amount to the persons entitled thereto, and offered to bring the money into court at its direction-constituted a good bill of interpleader. But where substantially all the material statements in the affidavit of an adverse claimant to a fund due under an insurance policy, which was used on a motion by the insurance company for an interpleader, were on information and belief, and the source of affiant's information was said to be an affidavit filed by claimant's husband with insurer, but not produced, to the effect that an assignment of the policy to plaintiff was for security only, and not absolute, as it appeared on its face, such affidavit was insufficient to authorize an