In re the Estate of Dobbel

Garoutte, J. This is an appeal from a decree of final distribution, and is taken by tbe administrator of the estate of Henry Dobbel, deceased, and by a creditor of his estate. The facts of the case may be briefly stated as follows: Henry Dobbel took out a paid-up policy of insurance upon his life in favor of his wife, Margaretha. Margaretha died intestate; six years later her husband, Henry, died. The policy was made payable to “Margaretha L. Dobbel, her executors, administrators, or assigns." Upon the death of Henry, his son was appointed administrator of Margaretha’s estate, and the insurance company paid him as such administrator the amount of the policy. The husband and wife left surviving them seven children, and by the decree of distribution appealed from in this case the trial court awarded the proceeds of this policy to the children in equal shares. It is now claimed by appellant that the estate of Henry Dobbel is entitled to all of said moneys as community property; and, secondly, if this contention be unsound, that his estate is entitled to one-third of said moneys, the husband being an heir of the wife, and the money being her separate property.

It cannot technically be said that the money here in dispute was either the separate property of the wife, or common property of the spouses, for this money was [435]the property of the insurance company until after the death of both, and until it passed to her administrator. But the insurance policy when issued was property, and valuable property. I# could be sold, assigned, or bequeathed by the owner thereof. Its pecuniary value to its owners was as great as though they held a promissory note of the company for that amount, payable upon the same conditions. It was a chose in action, and upon its satisfaction by a payment of the amount specified the title to the money so paid followed the title to the policy.

This policy was the separate property of the wife under any aspect of the case. If it was bought with the separate property of the husband, or with money of the community, it was a gift by the husband to the wife. That a policy payable as the present one is payable is the separate property of the wife there is no question, viewed in the light, of the authorities. (Pence v. Makepeace, 65 Ind. 345; Wilburn v. Wilburn, 83 Ind. 55; Harley v. Heist, 86 Ind. 196, and cases there cited; Bliss on Life Insurance, sec. 317.)

The principle involved and decided in the case cited from 86 Indiana is in all material respects the same as that which is now before us, and the court there used the following language: “The policy in this case, by its terms, was executed for the benefit of the wife, and by a fair construction was payable to her and not to the personal representatives of the husband. "Upon its execution the title vested in the wife and not in the husband. By the procurement of the husband the wife became the owner of the policy, and entitled to collect the amount that might become due on the same upon the death of the husband. Had the wife procured the policy to be issued and paid the premiums no. one could doubt as to the ownership of the policy and the right to collect the money due thereon. We are unable to see in this case why there should be any difference in the ownership and title of the policy by reason of the application having been made and the premiums paid by the husband. Had the policy been made pay