The opinion of the court was delivered by
Mit. Justice Witherspoon.On July 27, 1866, the New York Life Insurance Company, in consideration of a certain amount of premium then paid by Rachel T. Macaulay, and the further payment of a similar amount on the first day of July of each succeeding year for nine years, issued a policy for $5,000, upon the life of Allan Macaulay, husband of the said Rachel T., in which policy said company agreed to paj', upon the death of the said Allan Macaulay, the sum assured, “to the said Rachel T., Christina E., and J. T. Macaulay, share and share alike, or their legal representatives.” Christina E. and J. T. Macaulay, named in said policy, were children of Allan and Rachel T. Macaulay. J. T. Macaulay (hereinafter referred to as John T. Macaulay), one of said beneficiaries named in said policy, died in infancy during the month of December, 1866, after.said policy was issued. The last premium due on said policy was paid in 1876.
Allan Macaulay was a member of the firm of Stenhouse & Macaulay, cotton brokers, and the defendant furnished said firm with money to buy cotton. It appears that said finn ow'ed the defendant by over-drafts October 3, 1881, the sum of $687.01. Allan Macaulay died December, 1884. Prior to his death, Allan Macaulay deposited the policy of insurance aforesaid with the defendant, as defendant claims, under an agreement with defendant, that said insurance policy should be held by defendant as a pledge for the payment of the over-drafts due by Stenhouse & Macaulay as aforesaid. After the death of Allan Macaulay the plaintiffs demanded the policy, and defendant refused to deliver the same until the .indebtedness of Stenhouse & Macaulay by over-drafts, as aforesaid, was paid to said defendant. The plain*219tiffs instituted the above entitled action to recover the possession of the life insurance policy aforesaid, together with damages for the alleged unlawful withholding of the same by defendant.
The defendant interposed a demurrer to the complaint: I. Because it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action. II. Because there is a defect of parties plaintiffs, in the omission of the names of the legal representatives of Allan Macaulay and John T. Macaulay. The demurrer was overruled. The defendant vas allowed to answer, and, under an order of court, defendant turned over the insurance policy to plaintiffs, and plaintiffs deposited $850 of the proceeds thereof with the clerk of court, to await a final decision of the case, as required by said order. No exception was taken to the order overruling defendant’s demurrer.
Under these circumstances, and at a^ subsequent term of court, the cause came on to be heard by Judge Fraser and a jury. The jury rendered a verdict for plaintiff's for $360.53. After referring to the former order in the cause requiring the deposit by plaintiff's of $850 with the clerk, the presiding judge passed an order directing the clerk to pay defendant $489.47, and to plaintiffs the balance of the fund in his hands, on account of the judgment to be entered up in this case. From this order and the rulings and charge of the Circuit Judge the plaintiff's appeal.
The first and second exceptions allege that the Circuit Judge erred in admitting the testimony of W. B. Stanley, president, and J. H. Sawyer, cashier, of the Central National Bank, the defendant, as to transactions and communications with Allan Macaulay, deceased, with reference to the policy sued upon. These exceptions are taken and are to be considered under section 400 of the Code. Plaintiff's are not prosecuting this action in any of the representative capacities referred to in said section, and we fail to see any ground upon which said exceptions can be sustained.
The third exception alleges that his honor erred in charging the jury, “that when John T. Macaulay, the infant, died he had a vested interest which went to his heirs-at-law, and the father being one of said infant’s heirs, was entitled'to an interest of the *220child’s share.” This exception raises the real issue" between the parties to this action, to wit: the effect of the death of the infant beneficiary, John T. Macaulay, on his share or interest in the policy ; that is to say, whether such interest survived to the other beneficiaries, as contended by plaintiffs, or went to the deceased distributees, as contended by defendant. In construing the'policy under consideration, the Circuit Judge charged the jury in substance, that the policy when delivered, and the money to become due under it, belonged to the beneficiaries named in the policy, and the interests of said beneficiaries then became vested, subject to be defeated only by the non-payment of future premiums; that when John T., the infant, died he had a vested interest, which went immediately to his distributees ; that the words “legal representatives” in the policy meant executors and administrators. The judge left to the jury to decide, as matter of fact, whether or not Allan Macaulay assigned, pledged, or delivered the policy to the defendant, to secure the over-drafts due said defendant by Stenhouse & Macaulay.
In support of the third exception, appellants’ counsel cites the case of Robinson v. Duvall, decided by the Court of Appeals of Kentucky in 1881; see The Reporter, vol. XII., page 466. In that case the sum assured, under the terms of the policy, was payable to the wife and children, or their legal representatives. The court held in that case that upon the death of a beneficiary, his share passed to the surviving beneficiaries. We do not think that the case cited and relied upon by appellants is applicable, as there is a material difference between the provisions of the policy in that case for the beneficiaries, and the policy under consideration. The policy under consideration provides for the payment of the sum assured to certain persons by name, “share and share alike, or their legal representatives.” We think that this provision in the policy, under consideration, excludes the theory of survivorship among the beneficiaries, contended for by appellants, and that the Circuit Judge did not err in his charge to the jury as alleged in the third exception.
Plaintiffs requested the judge to charge the jury to the effect, that neither Allan Macaulay nor his administrator could take any interest under the terms of the policy, and that the interest *221of the infant, John T., at his death, went to plaintiffs, the other beneficiaries named in said policy. The fourth, fifth, sixth, and eighth exceptions allege that the judge erred in refusing to charge as requested. The seventh exception alleges that the judge erred in refusing to charge as requested, “that if. Allan Macaulay inherited an interest in said policy, he could not assign that interest verbally, but it must be done in writing.” This exception cannot be sustained. We do not think that the Circuit Judge erred, either in his charge, or in refusing to charge the jury as alleged in plaintiffs’ exceptions. The matter of administration upon the estate of the deceased beneficiary, John T. Macaulay, referred to in appellants’ argument, was disposed of in the Circuit Court, without exception, and cannot be considered by this court.
The judgment of this court is, that the judgment of the Circuit Co.urt be affirmed.