Castle v. Hickman

HARRISON, J. The defendants, Edward Hickman and Hepsabeth Hickman, his wife, executed their promissory note to George H. Castle, February 23, 1889, for the sum of [160]$4,343, and on the 22d of April, 1890, for the purpose of securing the same, assigned to him a certain policy of insurance that had been issued by the Equitable Life Assurance Society, payable to Edward Hickman. In January, 1891, Edward Hickman was desirous that the policy should be surrendered for a paid-up policy, and thereupon he and Castle made an agreement to that effect, and that the paid-up policy, when issued, should be held by Castle in lieu of the other, and with like effect and purpose. The policy was thereupon delivered to Hickman, and the insurance company was directed by him to issue therefor a paid-up policy, and, when issued, to forward it to Castle’s attorney. The company made the paid-up policy payable to the defendant Hepsabeth Hick,man, and, in ease of her death, to her children, and, instead of forwarding the policy to Castle’s attorney, forwarded it to Hickman, who afterward delivered it to the attorney. The present action was brought by the executors of Castle to obtain judgment for the amount of the promissory note, and declaring that the claim of the defendants upon the paid-up policy is subordinate and subject to the claim of the plaintiffs therein. Judgment was rendered in favor of the plaintiffs, and the defendants have appealed.

It was shown at the trial that the defendant Hepsabeth signed the promissory note as an accommodation to her husband, subsequent to its execution by him, and that her assignment of the policy was without any consideration. She claimed in her answer that her husband had previously agreed that he would hold the policy as a security for the payment’ of certain money that he had borrowed from her, and that, when he exchanged it for the paid-up policy, the latter was made payable to her for the purpose of carrying out this agreement, and that its subsequent delivery by him to Castle was without her knowledge. At the trial, however, after the plaintiffs had produced the assignment of the original policy executed by her, she testified that she executed it at the request of her husband, who informed her that Castle wanted it as security for the note that had been made to him. There was no evidence that the policy had ever been assigned by her husband to her, and the only evidence in support of her claim to it as security for her husband’s debt was her statement that he had made a verbal promise to give it to her; but there was no evidence that he had ever carried out his agree