
    John Hancock Mut. Life Ins. Co. vs. William Lawder et al.
    
    PROVIDENCE
    FEBRUARY 13, 1901.
    Present : Stiness, C. J., Tilling'liast and Douglas, J.J.
    (1) Life Insurance. Interpleader. Construction of Contract.
    
    A policy upon the life of assured was made payable to the beneficiary, as provided in tlie application, but the application named no beneficiary. The application was made by the step-mother of the assured, the latter being eight years of age when the policy was issued. The policy was based upon the application. The step-mother paid all premiums on the policy and kept the receipt-book. Upon the death of the step-mother and of the assured, the fund was claimed by the representatives of both parties. Upon interpleader:—
    
      Held, that from the facts stated the contract was made with the stepmother, the fact that the daughter was the person insured raising no implication in her favor as beneficiary when the contract was not made by her and did not run to her benefit by its terms.
    (2) Insurance. Insurable Interest.
    
    The question of insurable interest can only be raised by the insurer; and where the latter pays the fund into court, the question is removed. ,
    Interpleader to determine right to amount due on a policy of insurance.. The facts are stated in the opinion.
   Stiness, C. J.

On a bill of interpleader the complainant has paid into court the sum which it said is due on a policy of insurance on the life of Katie A. Lawder. The fund is claimed by the executor of Mary A. Lawder, the applicant for the policy, and also by James Reynolds, the husband and administrator of the estate of Kate A. Lawder, upon whose life the policy was issued.

The policy was made payable to the beneficiary, as provided in the application, but the application names no beneficiary.

Mary A. Lawder was the step-mother of Katie A. Lawder, a child about eight years of' age when the policy was issued. The payment of the money by the company removes the question whether there was a misrepresentation in the application.

The contention of respondent Reynolds is' that Mary A. Lawder, as step-mother, had no insurable interest in the life of the step-daughter, and hence the policy could not be payable to her, and must therefore be payable to the estate of the person whose life was insured. In Johnson v. Van Epps, 110 Ill. 551, 563, and in Order Mut. Comp. v. Griest, 76 Cal. 494, it was held that no one but the company can raise the question of insurable interest, and that the payment of the money into court removes this question also, leaving the dis position of the fund to be determined simply by the contract as made.

Looking, then, at the contract, we find that the application was made by Mary A. Lawder, and that the policy was based upon the application. So far, then, she was the contracting-party.

The answer of the executor, the husband of Mary A. Lawder, avers that she paid all the premiums while she lived, and that he paid all the premiums afterwards down to the death of Katie A. Reynolds. The answer of the administrator of Katie A. Reynolds avers that she paid the premiums in part after her marriage. The only proof is the receipt-book of the company, in which the premiums on this policy are receipted for in one sum, covering this and four other policies on the lives of other members of the family. We think that this fact rebuts the inference that Mrs. Reynolds paid the premiums separately for the policy on her life. Having Mary A. Lawder as the person making the contract and paying all the consideration, and keeping the receipt-book as evidence thereof, as though it was for her benefit, we think that the contract was with her. The fact that Katie A. Reynolds was the person insured raises no implication in her favor as beneficiary, when the contract was not made by her and did not run to her benefit by its terms.

We are of opinion that the fund is payable to the executor of Mary A. Lawder, and decree to that effect may be entered without costs.

Had the question of an insurable interest been before us, the same conclusion would seem to follow from Cronin v. Vermont Ins. Co., 20 R. I. 570.

McGuinness & Doran, for complainant.

Hugh J. Carroll, Thomas Riley, Jr., and James E. Banigan, for respondents.  