We think the question raised in this case has been settled by the recent decisions of this court. In Burroughs v. State Assurance Co. 97 Mass. 859, it was held, on a policy payable upon the death of the assured to his executors, administrators or assigns, for the use of the wife and children of the assured, that an assignee of the same could maintain the action, although in fact it was defended by the guardian of an infant child of the assured, the wife being dead. If the assured had left no wife or child, the assignee, upon recovery, would have received the whole amount to his own use; as the assured left a child, the assignee would hold the amount recovered subject to the equitable rights of the child, which could not be determined in that suit, but might be, if necessary, in a suit brought after-wards by the child against the assignee. In Gould v. Emerson, 99 Mass. 154, such a suit was brought by a child against an administrator who had received the amount due upon a similar policy, and judgment was for the plaintiff, on the ground that the same having been properly paid to the administrator, he held it as trustee ; that the plaintiff did not claim as creditor, legatee or distributee, but as cestui que trust of money in regard to which the trustee had no duty but immediate payment.
The principle upon which these decisions rest is, that in policies of this kind the executor, administrator or assignee becomes' a trustee under an express trust, and the legal title being in him, he can maintain an action in his own name against the company. It therefore necessarily follows that the cestuis que trust cannot maintain such action, but must have their rights determined between themselves and the trustee in other forms of proceeding. This brings this class of trusts within the general rules governing all trusts, and renders the practice simple and uniform. To allow cestuis que trust to maintain actions in their own names *179might subject insurers to several suits on the same policy, or call upon them to determine who has the beneficial interest, or force them to resort to a bill of interpleader to ascertain the equitable rights of the parties.
In Campbell v. New England Insurance Co. 98 Mass. 381, a suit was brought, as in the case at bar, by a wife who had the entire equitable interest, but the objection that she could not maintain the action was not taken till the case was on trial for the third time. The court held that the defendants, by their previous conduct of the case, had waived the right to avail themselves of this objection, but intimated that if valid, and seasonably taken, it would have rendered the other ground of defence immaterial. See also Exchange Bank v. Rice, 107 Mass. 37.
We think the objection valid, in this case seasonably taken, and there must be
Judgment for the defendants.