ON MOTION FOR A REHEARING. Respondent, on motion for a rehearing, says that our opinion is in conflict with State ex rel. Union Trust Co. v. Sartorius,350 Mo. 46, 164 S.W.2d 356, in holding that the insurance companies are entitled to appeal. Our opinion distinguishes that case in some respects. There is another distinguishing feature which ought not to be overlooked. The basis on which it is said the insurance companies are not aggrieved parties is the acquiescence of the beneficiary in the judgment appealed from. It is said that in view of the fact that the judgment, if not appealed by either the beneficiary or the companies, would be binding on the beneficiary and a full protection to the companies, it is no concern of the companies to question whether or not the judgment is a proper one; that the companies are not harmed by being adjudged to pay the installments to the respondent rather than to the beneficiary. This overlooks the fact that the one determinative issue on the trial was the right or not of the beneficiary to voluntarily alienate the unpaid installments. Why, then, must it necessarily be said that the companies had fully discharged their obligations under their contracts with the insured by merely contesting the issue in the trial court, without appealing to a court of last resort for a final decision of the issue, though the beneficiary acquiesced in the judgment? There was no such issue in the Sartorius case.
Respondent further says that our opinion is in conflict with Kessner v. Phillips, 189 Mo. 515, 88 S.W. 66. That case is so different on its facts that we do not regard it as in point here. It did not involve any such contract as a life insurance policy. It involved a deed conveying real estate. It conveyed the real estate to Hudspeth in fee simple with a condition that the real estate should not be liable for Hudspeth's debts, and that he should have no right, power, or authority to sell, encumber, or dispose of the real estate for a period of thirty years, except to dispose of the same by will, and that after the expiration of thirty years, the real estate should vest absolutely in Hudspeth free and clear of all the conditions named, *Page 951 to use, enjoy, and dispose of in any manner he might deem proper. There was no trustee or other intermediary. The conveyance was made direct to Hudspeth. An absolute estate in fee simple was vested in him, and he was given the right of possession, of managing and controlling the real estate, and of receiving the whole income therefrom. In other words, the conveyance to Hudspeth was of the whole legal title, with all the incidents and rights appurtenant thereto, with only a futile attempt to annex repugnant conditions thereto. He was in full possession and enjoyment of the property. The court, holding the property subject to Hudspeth's debts, said:
"Ever since the statute of quia emptores was enacted the rule of law has been that, `after an absolute conveyance in fee simple, a clause providing that the grantee shall not mortgage or dispose of the property, is repugnant and void.'"
The court further said:
"It is the policy of the law in this State to permit the creation of spendthrift trusts, and to allow the owner of property to apply a portion, or the whole thereof, to the maintenance and support of those he wishes to provide for and who are not able to control and manage their own affairs."
In the recent case of Chelsea-Wheeler Coal Co. v. Marvin (N.J.), 35 A.2d 874, the policy provision was substantially the same as the provision with which we are here concerned, and the court held that the insurer was bound to carry out its obligations under the policy in accordance with its terms. In that case the court said:
"Our attention has not been called to any case in New Jersey dealing with the right to restrain alienation of an insurance fund through the medium of the insurance contract itself. We think, however, that there is a close analogy between the situation subjudice and the type of restraint on alienation or assignment found in `spendthrift trusts.' Parenthetically we point out that it is immaterial whether or not the beneficiary is in fact a spendthrift."
Respondent urges in argument that we are concerned here with merely an ordinary indebtedness payable in installments. We do not think this is so. Just how unpaid installments, which the beneficiary "can neither commute, transfer, or encumber," can be regarded as an ordinary indebtedness, we are unable to see. It is clear that the provision withholds ownership until the installments are paid over to the beneficiary. The provision does not attempt to preclude alienation after the installments are paid.
The Commissioner recommends that respondent's motion for a rehearing be overruled.