
    Harvey, Adm’r, v. Harrison.
    
      (Nashville.
    
    January 6, 1891.)
    1. Life Insurance. Upon husband1 s life for wife1s benefit exempt from his debts.
    
    Although the widow alone is named as beneficiary in a policy of insurance taken by the husband upon his own life, yet the insurance is exempt to her from all claims of his creditors by virtue of the statutes declaring exemption of insurance upon husband’s, life in favor of his “widow and children,” or of his “widow and next of kin.”
    Code construed: {$3135, 3335, 3336 (M. & V.); §§2294, 2478, 2479, (T. & S.).
    2. SAME. Same. Exemption valid without regard to amount.
    
    And the exemption created by these statutes is valid without regard to the amount of the insurance. The statutes have placed no limit upon the amount, and the Courts can fix none.
    3.SAME. Same. Exemption valid notwithstanding assured's insolvency.
    
    And the exemption is valid against creditors existing at inception of the insurance, although the assured was then and continued to be insolvent, devoting his entire estate in payment of premiums. The • exemption is unconditional, and its express object was to withdraw a fund from creditors for the benefit of the debtor’s family.
    Case cited and approved: Rison v. Willcerson, 3 Sneed, 568.
    FROM DAVIDSON.
    Appeal from Chancery Court of Davidson County. Andrew Allison, Ch.
    
      Vertrees & Vertrees and A. A. Swope for ' Iiarvey.
    Demoss & Maloke for Harrison.
   DickinsoN, Sp. J.

In 1875 G-eorge W. Harrison became bound to Matthew Cowan on a replevy bond. From 1882 to 1886, being insolvent, he insured his life in various sums aggregating $58,000, paying therefor in premiums a sum of money larger than the debt claimed in this suit. In 1886 he died. His wife, the defendant, who was named as the beneficiary, realized $57,000 on the policies. In 1888 the personal representative of the estate of Cowan obtained a judgment for $4,000 against the' estate of Harrison on said bond, and there was a return of nulla bona. This bill is brought to subject the insurance money to. the satisfaction of this judgment, on the theory that Harrison, by devoting his entire estate in payment of the premiums purchasing this insurance, fraudulently disposed of his property, and that, to the ■extent of the premiums so paid, the fund arising from them should he subjected to the claim of ■complainant.

Defendant relies for protection on §§ 3135, 3335, and 3336 of the Code, as follows:

“ § 3135. A life insurance effected by a husband ■on his own life shall inure to the -benefit of the widow and next of kin, to be distributed as personal property, free from the claims of his creditors.”
“§ 3335. Any life insurance effected by a husband on bis own life shall, in case of bis death, inure to the benefit of his widow and children; and the money thence arising shall be divided between them according to the law of distribution, without being in any manner subject to the debts of the husband, whether by attachment, execution, or otherwise.”
“ § 3336. Whenever a married woman causes a life insurance to be effected upon her husband’s life it shall in no case be subject to execution or attachment for the debts of the husband, but shall inure to the benefit of the widow and children,”

For complainant it is contended that these sections provide that the life insurance contemplated by them shall go to the widow and children, or widow and next of kin, and that the exemption covers only such insurance as is so distributable, and that consequently they cannot be held to apply to these policies, which, by their express terms made, the wife the sole beneficiary.

In construing the statute the amount of insurance effected can have no weight. The Legislatures of other States have limited the amount of insurance so protected, but there is no such restriction in Tennessee. The statute must be read the same whether the policy be great or small. The rule that would defeat the exemption in this case would likewise defeat it if the amount were but $1,000 instead of $57,000. The fact of insolvency cannot be looked to; for the exemption is unconditional, and its express object was to withdraw a fund from creditors. If the policies bad been payable to Harrison’s estate, without any stipulation as to the wife, the creditors could have set up no claim to it. Rison v. Wilkerson & Co., 3 Sneed, 568,

• If it had been to the wife and children, the basis on which complainant predicates his argument would not exist.

The wrong charged did not, then, consist so much in withdrawing the fund from creditors as in the manner of its bestowal. The creditor could be hurt no more by the wife being sole beneficiary than by the children sharing with her, as undoubtedly might have been accomplished in either of the 'two ways named.

If the insurance had been made payable to Harrison’s estate, and had so continued, the creditor could not have touched it before or after death; but if such policies (being a fund intangible by creditors) had been assigned by Harrison to his wife, then, ipso facto, under the argument advanced, the wrong is consummate, and the creditor’s right attaches. In this way he would be benefited by the alleged fraud, which in fact consists only in transferring to the wife a fund which he could not have subjected in any way. He could not restrain such transfer by alleging it to be a fraudulent disposition of property, for such right is limited to what he might reach if not transferred. He could not be injured by bis debtor alienating what was already beyond bis reach. Such alienation would neither give the creditor a right in the fund, nor a right of action against the transferee. If this were true, then instead of a fraudulent disposition of property to defeat creditors, it would be a fraudulent- disposition for the benefit of creditors. The proposition, if correct, is a startling legal paradox. If the husband, as shown, can take out the policy in his own name and safely transfer it to his wife, then how does it injure the creditor to take it in her name in the first instance?

Nader the construction contended for, a father could not provide for his dependent minor children if they were motherless, because there would be no widow to share in the distribution; and, inasmuch as the statute (as is claimed) only contemplates insurance distributable to widow and children, it could not be held to apply to a fund where there was no widow to share in it.

The wife of a husband having no children and taking out a policy in his own name, would, under the statute of distributions, _ be sole beneficiary; then, why should there be any difference if he, in the first instance, should make her the beneficiary in the policy? It could not injure creditors to take out the policy in her name instead of his when the policy, if taken in his name, would, under the statute, 'be paid to her. If this could be legally done, and afterward children should be born to tbem, and be should die leaving a wife .and children, then, because the children could not ¡share, the statute (as is contended) would not protect the policy, and what was before perfectly shielded would, by the mere fact of the birth of children, become subject to creditors as property fraudulently ■disposed of.

Apply this method of literal construction to § 3336, which provides:

“ § 3336. "Whenever a married woman causes a "life insurance to be effected upon her husband’s "life, it shall in no case be subject to execution or attachment for the debts of the husband, but shall inure to the benefit of the widow and children.”"

If the wife effect the insurance with her separate estate, shall it inure to the benefit of the •children? If she effect it with money given by the husband, but in her own name, shall we say that it shall not inure to the benefit of the •children? The statute says it shall inure to their benefit, and no limitations are expressed as to ¡source' of premiums or the form of policy. These ■questions are suggestive of the difficulties involved in applying to such statutes a narrow principle of "hermeneutics, which deals merely with the language .and ignores the policy that inspired them. If ■she effect it in her own name, shall it for this reason be subject to the husband’s creditors? We ■■do not think that the words relied 'on as controlling the application of the exemption were used for any such purpose. They were not intended to limit the scope of the statute nor to protect the rights of creditors, hut simply to provide for the disposition of the fund in the event of its becoming a part of the estate. In the absence of a disposition of it by the husband, this provision was' proper to fix the relative rights of the wife and children and take the fund out of the administration immediately for their benefit. The primary purpose of the Act was to exempt life insurance from the claims of creditors, and this is expressed in emphatic and conclusive language. The secondary purpose was to provide for the disposition of this fund. The words inserted for this subordinate intent, dissimilar from the primary object of the Act, will not restrict the scope of the Act. in its main intent. The purpose of the enactment is clear, and this must guide in its application. It was to enable a husband or father to provide a fund after his death for his family. Whether the contract be in his own name, or for his wife and children, or in the name of the wife alone, can make no difference to creditors, for the' same amount can be withdrawn from them in premiums under either form of contract, and the manner of distribution does not concern them. After the father, the mother is the head of the family. It is often the highest wisdom to intrust, her with the means of supporting and educating her children and securing their dependence and obedience. To defeat the possibility of such provision, and force all insurance for the benefit of the family to be taken out so as to be distributable among- the ■children, and say that the husband cannot insure for the benefit of his wife alone, upon the construction .contended for, would be to sacrifice the spirit of a law belonging to that class which, as said by Judge Green in Bachman v. Crawford, 3 Hum., 216, “ought to be so construed as to advance the remedy the Legislature intended to afford.”

The decree is affirmed.

Judge Snodgrass dissents.  