Estate of Burnett

DORAN, J.

The executor of the last will of the decedent herein appeals from a judgment and decree of the probate court ordering payment of claims against the estate and embodying certain instructions to the executor. The appeal is taken upon a bill of exceptions and is in reality only an appeal from that portion of the decree which seeks to subject

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the proceeds of certain insurance policies to the payment of creditors’ claims.

The deceased was insured under three policies of life insurance, his estate being named beneficiary thereof. Just before he died, Mr. Burnett, the decedent, wrote to the head office of each of the life insurance companies concerned asking that they change the beneficiary in each policy from his estate to Mrs. C. G. Macaulay and Mrs. L. M. Hand, in equal shares; but Mr. Burnett died after the letters were mailed and before they were received by the insurance companies, and the insurance companies refused to make payment to either Mrs. Macaulay or Mrs. Hand, as beneficiaries, on the ground that the requested change of beneficiary had reached the companies after the death of the insured. Mrs. Macaulay was decedent’s sister. Mrs. Hand was not related to decedent but was a former, divorced wife. In his will Mr. Burnett bequeathed one-half of his insurance to Mrs. Macaulay and one-half to Mrs. Hand. The proceeds of the policies were paid by the insurers to the executor, who set these funds aside through deposit in a special bank account for the purpose.

By the decree here appealed from, the court ordered the executor to pay all claims against the estate out of all moneys in his hands belonging to the estate, irrespective of the source

thereof;

and the executor was specifically instructed that none of the moneys belonging to the said estate in his possession were exempt from the claims of the creditors, and that the creditors were entitled to receive payment out of the said moneys, whether received by the executor as proceeds of any life insurance policy or policies upon the life of the deceased, or otherwise.

It is the contention of appellant that the proceeds of the life insurance policies in question are exempt from the claims of creditors of the estate, and that the court erred in so far as its decree purported to subject such proceeds to the payment of claims and to instruct the executor accordingly.