
    Stambaugh v. Blake, Admr.
    A son in lawhas no insurable interest in his mother-in-law’s life.
    A son-in-law took out a policy of insurance on the life of his mother-in-law and subsequently assigned it, by written assignment, to a stranger for a nominal consideration. The assignee collected the insurance, upon the death of the assured. In an action of assumpsit by the administrator of the assured, to recover the insurance received by the assignee, the defendant, by offers of evidence, proposed to prove that the original beneficiary, with his wife, had lived with the assured and supported her, that she had no other means of support, and that the wife of the beneficiary, who was the only child and person interested in the estate, knew of the insurance and made no demand for it. The defendant also offered to prove a valuable consideration, not named in the assignment, paid by him. &eld, that the offers of evidence were inadmissible, and that the plaintiff was entitled to recover.
    Where the assignee of a wagering policy has received the amount of the policy from the insurance company, the statute of limitations does not begin to run in his favor, in an action by the administrator of the assured for the money so received, until letters of administration have been taken out on the estate of the assured.
    May 17, 1888.
    Error, No. 51, July T. 1888, to O. P. York Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by Thaddeus A. Blake, administrator of Elizabeth Baber, against Jesse S. Stambaugh, to recover the amount of a policy of insurance paid to the defendant, at Aug. T. 1887, No. 92. Trunkey and Sterrett, JJ., absent.
    At the trial, before Gibson, P. J., the defendant made the following offer:
    By Mr. Ziegler. [“The defendant now offers to prove, by the witness on the stand, that he knew Adam J. Emig, the beneficiary, and his wife, Amelia B. Emig; that they lived together with Elizabeth Baber, the intestate, in York; that Elizabeth Baber, the intestate, had no visible means of support, that she was kept and maintained by her son-in-law, Adam J. Emig, with whom she lived; that Amelia B. Emig, at the time of her mother’s death, was of full age; that she was the only child of Elizabeth Baber, deceased; that she continued to live in York for a number of years after her mother’s death, possibly five or six years; that Amelia E. Emig knew of the insurance on the life of Elizabeth Eaber, her mother that she made no demand for the money or request for its payment, to her,] and knew of the assignment of this policy by Mr. Emig to the witness on the stand; for the purpose, first, of showing the legal right of Amelia E. Emig to renounce her right to letters of administration on her mother’s estate or to take them out herself, and to collect from the defendant, within six years from the time that he received the money, the amount of money that he did receive, less that to which he was by right entitled; for the purpose, of showing that there existed an insurable interest independent of' relationship, between Elizabeth Eaber, deceased, and Adam J. Emig, the son-in-law, and sustaining the issue on the part of the-defendant.”
    By Mr. Bittenger. “ Objected to as irrelevant and not evidence for the purpose offered, not evidence for any purpose in the case, that that portion of the offer which relates to the number of children of the decedent and the state of her financial condition is especially objectionable as not being proper evidence in the case, and immaterial; that the residence of Amelia E. Emig proposed to be proven by the defendant, and her neglect to demand the money or to bring suit is especially objected to as not being evidence in this case, and also her alleged knowledge of the assignment of the-policy to the witness and others, and that that part of the purpose of the offer which is to show that she had the exclusive right to renounce letters or to take them out and did not do so at an earlier day, is not evidence that she acquiesced in the non-payment of the money received by the defendant from the insurance company, for which this suit is brought.”
    By Mr. Ziegler. — “ If your Honor will admit so much of the; proof that she was the only surviving heir — ”
    By the Court. “ I do not think this is evidence.”
    Bill of exceptions signed, sealed and filed for the defendant.
    [The defendant also offered to prove, by his own testimony, that,, at the time he took the assignment of the certificate of the insurance from Lewis Strayer, he paid him $600, as the consideration of the assignment. Objected to, objection sustained and exception.] [9}
    The facts are stated in the charge of the court, as follows:
    “ On June 2, 1815, a policy of insurance, being a certificate of membership in the U. B. Aid Society of Lebanon, Pennsylvania, was taken out on the life of Mrs. Elizabeth Eaber, in which Adam J. Emig is named as the benefieiary, that is, ‘ this is to certify that Mrs. Elizabeth Eaber has become a member of the IT. B. Mutual Aid Society of Pennsylvania,’ and this membership entitles Mr. Adam J. Emig, his heirs and assigns, upon the death of the said Mrs. Elizabeth Eaber, to three thousand dollars. Adam J. Emig was married to the daughter of Mrs. Elizabeth Eaber, and was her son-in-law. '
    
      “ It has been decided in this state that a son-in-law, by reason of that relationship, has no insurable interest. Nor does it appear here in this case that there is any other kind of an interest by reason of his being a creditor, and it has been held to' be law that a policy of insurance in favor- of one who has no interest in the life of the assured, either as a relative or as a creditor is speculative and a wager, that is, it is a mere speculation or bet upon the life of the party assured. As -regards the representative of the estate of the assured, it has been held that, when there is such an assignment, the beneficiary or his assignee can only hold the amount expended for fees and expenses, and that would be but a mere matter of calculation.
    “After this policy was taken in the name of Adam J. Emig, on May 25, 1876, the following year after the certificate was issued, Adam J. Emig assigned the policy to Lewis Strayer, and, on May 29, 1876, just a few days afterward, Lewis Strayer assigned the same to J esse S. Stambaugh. These assignments were acknowledged before justices of the peace. The consideration in the one case,, that is, in the assignment of Adam J. Emig, is for a consideration of the sum of ten dollars, and that of Lewis Strayer to Jesse S. Stambaugh is for a consideration of the sum of ten dollars. This-appears upon the face of the papers.
    “After the death of Elizabeth Baber, on Nov. 27, 1876, on March 20, 1880, Jesse S. Stambaugh signed the following release: ‘Know all men by these presents that I, Jesse S. Stambaugh, for and in consideration of the sum of three thousand dollars, to me in hand paid, the receipt whereof is hereby acknowledged, by the-Ü. B. Mutual Aid Society of Pennsylvania, and I hereby for myself,, my executors, my administrators and assigns, remise, release, and forever discharge the U. B. Mutual Aid Society, by or from any and all claims of this insurance certificate, liabilities, debts, demands, actions, and causes of actions, from the beginning of the world,’ and so on. It is dated March 20, 1880.
    “ The check given by the U. B. Mutual Aid Society is for the sum of $2,961.75, and this check or draft is endorsed by Jesse S. Stambaugh. It thus appears that there was this certificate of membership or policy of insurance for the sum of $3,000.00, issued to Adam J..Emig, the beneficiary, who was the son-in-law and had no insurable interest of any character whatever, and that he assigned the same for a nominal consideration to Lewis Strayer, and Lewis Strayer assigned the same for a nominal consideration to Jesse S. Stambaugh. It therefore requires no further investigation of the facts of this case at once to declare this policy a wager policy. And it appears that this money having been drawn by Jesse S. Stambaugh from the company, he cannot hold it against the representatives of the estate of the assured. The assured was Elizabeth Baber. She died, as I have said, on the 27th of November, 1876. It has been decided that the legal representatives of the assured may recover from the beneficiary, or the assignee who has received the money, where there is no insurable interest, on such a wagering policy. It has been decided, in the case of Gilbert v. Moose, that, when such an assignment is made, the beneficiary interest remains in the party assured, and the representatives of his estate may recover.
    “ Now, the only question that is referred to in this case that seems to create an aj)parent legal difficulty, is on this ground; six years elapsed from the time of the receipt of -this money up until the time suit was brought for it. Under the statute of limitations one may recover a debt within six years, but there is no remedy for the recovery of debts barred by the statute after the lapse of six years, unless there has been some acknowledgment, something, as we say, to take the case out of the statute of limitations. But it has always been the law of England, from which we have derived our law, that when one receives money belonging to the estate of an intestate, — there was no will in this case, — after the death and before administration granted, the statute does not begin from the date of the receipt of the money, but from the grant of the letters of administration; that is a very ancient law, and it has been adopted in the state of Pennsylvania. Now, in this case, this money, though having been transferred on account of the wagering policy, still belongs to the estate of the assured; it is part of the estate of Elizabeth Baber; and, if the defendant in this case received the money on this policy, he was not entitled to it, and he received- it, in the opinion of the law, for the benefit of the estate. The rule, I will repeat, is when one receives money belonging to the estate of an intestate after his death, and before administration granted, the statute runs from the date not of the receipt, but from the granting of the administration. The money was received for the estate. Although more than six years elapsed from the date of the receipt until it was sued for, still there had been no administration taken out upon this estate, [and there was nobody who could sue.] [7] Eor instance, the Pennsylvania cases say a cause of action does not exist unless there be a person in existence capable of being-sued, and, until there were letters of administration on the estate, there could have been no suit brought.
    
      “ The merits of the case are not at all involved in this technical question. Because, if a man receives money belonging to an estate which he is bound to know, and he receives it before the letters of administration are granted, he cannot then begin to count from the date of the receipt of the money when there is nobody who could bring an action against him for it. These principles are all very simple ones; there is no dispute herewith regard, to any facts of this case.
    
      “ Therefore it remains my duty simply to tell you that the plaintiff is entitled to recover, subject to such credits as have been presented to you by the defendant and which the law allows him to get back again, such as payments of assessments, dues and necessary expenses attending it. Although I must say to you that, in speculations of this kind, the amount of the consideration cannot be allowed to enter, unless it went directly to the beneficiary or in some way to the benefit of his estate that is now seeking to recover. As a matter of course, if it went there, they cannot now recover it again. But, as between two strangers, that would be no part of the credit allowed, but just actual fees and expenses. A calculation will be laid before you.
    “ Therefore if you believe the facts of this case as they [have been given to you by the plaintiff, and we have the papers showing the issue of the policy and the transfer of it, it will be your duty to render a verdict in favor of the plaintiff for the amount of money that was received by him, less the amount of credits as you shall find them.”
    The defendant presented the following points, which were refused:
    
      “ 1. The action in this case is barred by the statute of limitations, and the plaintiff cannot recover.”
    
      “ 2. Under the law and the evidence in this case, the plaintiff cannot recover, and the verdict must be for the defendant.
    
      “ 3. The cause of action accrued in this case at the time the money was received by the defendant, and the statute of limitations began to run from that time.”
    
      “ 4. The statute of limitations in this case began to run from the time the money was received by the defendant, and not from the grant of letters of administration. Ans. This point is refused; the statute of limitations begins to run from the grant of letters of administration.”
    “ 5. The delay of Amelia R. Emig in renouncing her right to letters of administration on the estate of Elizabeth Raber, deceased, having arisen from her own act, it is negligence on her part — the letters of administration not having been taken out until more than seven years after the time the money was received by the defendant, and the bar of the statute of limitations is effective to defeat the plaintiff’s right to recover in this case.”
    “ 6. If the court should be of opinion that the action in . this case is not barred by the statute of limitations, then, and in such case, the defendant is entitled to credit for the sum he paid for the policy and interest on the amount, as well also as for the aggregate of the assessments paid on the policy by him. Ans. This point is refused, although the aggregate of the assessments can be recovered by him.”
    Verdict and judgment for plaintiffs for $3,368.44.
    
      The assignments of error specified, 1-6, the answers to defendant’s points, quoting the points and answers; I, the portion of the charge within brackets, quoting it; 8-9, the rulings on the evidence, as enclosed in brackets, quoting them; and, 10, the action of the court in not entering a compulsory non-suit.
    
      E. D. Ziegler, with him Frank Geise and J. R. Strawbridge, 
      for plaintiff in error.
    The claim was barred by the statute of limitations. Finkbone’s Ap., 86 Pa. 368; Steele’s Admrs. v. Steele, 35 Pa. 154; Milne’s Ap., 99 Pa. 483; Marsteller v. Marsteller, 93 Pa. 350.
    The fact that Adam J. Emig supported Mrs. Baber shows that he had an insurable interest in her life.
    It was error to reject the defendant’s offer to prove by him that, at the time he took the assignment of the certificate of insurance from Strayer, he paid him the sum of $600. The defendant should have been entitled to credit for this payment. It was paid for the insurance as fees and expenses, and the defendant, having paid it in good faith, was entitled to credit for the sum so paid as well also as for the assessments paid by him and previous holders of the certificate of insurance. Downey v. Hoffer, 110 Pa. 109; Ruth v. Ketterman et al. Admrs., 112 Pa. 251.
    The plaintiff did not establish affirmatively that there was no insurable interest existing between Elizabeth Baber, the insured, and Adam J. Emig, the beneficiary. It was not a part of the defence to prove that there was an insurable interest, until the plaintiff established the fact that there was no such interest.
    
      John W. Bittenger, for defendant in error.
    The statute of limitations did not begin to run until letters of administration were taken out on the estate of the assured. Man v. Warner, 4 Wh. 455; Campbell v. Fleming, 63 Pa. 245; Marsteller v. Marsteller, 93 Pa. 355.
    The heir cannot sue for and recover the estate of the decedent, except in a few cases, which prove the rule that to the administrator of the estate of a decedent belongs the right to receive, have and administer his personal estate. Lee v. Gibbons, Gdn., 14 S. & R. 105; McClean’s Exrs. v. Wade, 53 Pa. 146; Walworth v. Abel, 52 Pa. 370; Marsteller v. Marsteller, 93 Pa. 350.
    The plaintiff cannot sustain his sixth and ninth specifications of error, in the face of the authorities cited by his counsel in their argument. Downey v. Hoffer, 110 Pa. 109; Ruth v. Ketterman, 112 Pa. 251. Besides these cases, all the recent decisions are to the effect that money received on a wagering policy cannot be retained against the administrator of the insured except the amounts thereof paid the holder of the policy, and for fees, assessments and expenses.
    The relationship of the parties rebuts the existence of any indebtedness for maintenance, in the absence of a positive contract to pay; and there was no offer to show a contract.
    Any interest Adam J. Emig may have had (and it is denied he had any) ceased and determined when he assigned the policy to Lewis Strayer. A purchaser of a policy, by one having no insurable interest in the life of the insured, for speculative purposes, from a beneficiary having an insurable interest, can only retain the fees and assessments paid by him, the amount paid to the insured, and interest on such payments. The remainder of the insurance money is recoverable by the personal representatives of the insured. Gilbert v. Moose, 104 Pa. 74; Downey v. Hoffer, 110 Pa. 109; Smith v. Wegman, 16 W. N. C. 186; Meiley v. Hersberger, 16 W. N. C. 186; Stoner v. Line, 16 W. N. C. 187.
    Unless the whole offer of testimony in the case was competent evidence for the defendant, it was not error for the court to exclude it; and, unless the defendant was injured'by the action of the court in their ruling, it is not ground for reversal. Bentz v. Rockey, 69 Pa. 71. As a whole, the offer was irrelevant and could not be legally admitted.
    Refusal to enter a non-suit is not ground for a writ of error. Lehman v. Kellerman, 65 Pa. 489.
    October 1, 1888.
   Per Curiam,

When the learned judge of the ■court below said, “ It, therefore, requires no further investigation of the facts of this case at once to declare this policy to be a wagering policy, and it appears that this money having been drawn by Jesse S. Stambaugh from the company, he cannot hold it against the representatives of the estate of the assured,” he said nothing that he was not warranted in saying by the facts and law of the case.

We may here add that it is time that attorneys, at least, should learn to know that an assignment does not help a wagering policy, .and that the assignee spends his money to no purpose when. he purchases it.

The judgment is affirmed.  