
    Carroll,
    Dec., 1895.
    Smith v. Ætna Life Insurance Co.; Ætna Life Insurance Co. v. Smith & a.
    
    A policy of insurance payable to a wife and, in case of her death before her husband, to their children, vests upon her death in the children then living, and is payable to them, or their legal representatives, upon the death of the insured.
    Assumpsit, on a policy of life insurance, and Bill or Inter-pleader, to determine to whom the amount due upon the policy should be paid. Facts agreed.
    The policy was issued February 9, 1866, upon the life of Charles C. Smith, payable to his wife, Ruth K. Smith, for her sole use and benefit, and in case of her death before the decease of her husband, to their children. Ruth K. Smith died February 2, 1879, leaving two sons, Charles H. Smith and George M. Smith, the latter being plaintiff in the action at law and defendant to the bill of interpleader. Charles II. Smith died March 26, 1882, testate and without issue, leaving a widow, Seannah P. Smith, who is executrix of and legatee under his will, and defendant to the bill of interpleader. Charles C. Smith, the insured, died March 9, 1893. George M. Smith claims the whole amount due upon the policy, and Seannah P. Smith one half thereof.
    
      Arthur L. Foote, for George M. Smith.
    
      Adam,s <f Southworth (of Minnesota) and John C. I. Wood, for Seannah P. Smith.
    
      Frank Weeks, for the MEtna Life Insurance Company.
   Clark, J.

Under a policy of insurance on the life of the insured, for the sole use of his wife, if living, and if not living, to her children or their guardian, no interest vested in the children during the lifetime of their mother; but upon her death, in the lifetime of the insured, all her children then living acquired an interest in the policy, and upon the subsequent death of the insured, the persons entitled to the insurance are the children living at the death of the mother, and in the event of the death of any of them after her death and before that of the father, the heirs of the child so dying are entitled to his portion of such insurance. Walsh v. Insurance Co., 133 N. Y. 408.

The rule laid down in tbe foregoing ease controls the present one. Until her death in February, 1879, the interest in the insurance was vested in Ruth K. Smith; and at her decease, it vested at once in the children then living, Charles H. and George M., payable to them or their representatives at the death of Charles C. Smith, the insured. City Savings Bank v. Whittle, 63 N. H. 587. Charles H. Smith died in March, 1882, without issue, but leaving a widow to whom he gave his estate by will; and she is legally entitled to the share which would have been payable to her husband if he had survived his father. Small v. Jose, 86 Me. 120. The amount due upon the policy should be equally divided between George M. Smith and Seannah P. Smith, widow and legatee of Charles H. Smith.

Case discharged.

All concurred.  