(concurring).
It is my view that the right of appellant to a stay of the law action depends on whether it had an adequate remedy at law when the suit in equity was commenced.1 If it did not, then I think it was entitled to the stay.2
However, I think the remedy at law was adequate. If the right of action on the policy was in the legal heirs or if they were necessary parties plaintiff in the action, then appellant could have had them brought in as parties plaintiff under section 89-521, Wyo.R.S.1931. Kirch v. Nicholson, 42 Wyo. 489, 297 P. 398.
However, I think the right of action is in the administrator and not in the legal heirs. That portion of section 88-4009, Wyo.R.S.1931 applicable here, is quoted in the majority opinion. T think the context is an aid to a proper construction of the applicable provision and therefore set forth the section in its entirety:
“Felonious taking of life precludes inheritance or insurance benefits. No person, who feloniously takes, or causes or procures another so to take, the life of another, shall inherit from said person, or take by devise or legacy from such de-. ceased person, any portion of his or her estate; and no beneficiary of any policy of life or accident insurance, or certificates of membership issued by any benevolent association or organization, payable upon the. death of any person, who in like manner takes or causes or procures another so to take the life of another, shall take the proceeds of such policy or certificate, but in every instance mentioned in this section, all benefits that would accrue to any such person upon the death of the person whose life is thus taken, shall become subject to distribution- among the other heirs of such deceased person according to the rules of descent and distribution; provided, however, that an insurance company shall be discharged of all liability under a policy issued by it upon payment of the proceeds in accordance with the terms thereof, unless before such payment, the company shall have written notice, by or in behalf of some claimant other than the *891beneficiary named in the policy, that a claim to the proceeds of such policy will be made by heirs of such deceased under the provisions of this section. L. T5, c. 95, § 1; C.S. ’20, § 7010.”
This statute was enacted in 1915. It appears in the Wyo.Comp.St.1920 as a part of the statutes on descent and distribution, and in the Wyo.R.S.1931 as a part of the Probate Code. It will be noted that it deals not only with forfeiture of the rights by a beneficiary under a policy of life insurance, but also with the right of inheritance.
When the whole subject matter of the statute is considered, I think it clear that it is one of descent and distribution and that the provision “all benefits that would accrue to any such person upon the death of the person whose life is thus taken, shall become subject to distribution among the other heirs of such deceased person according to the rules of descent and distribution,” should be construed to authorize the personal representative of the deceased person to sue for and collect the insurance benefits and distribute them to such other heirs.
Sections 88-2501 and 88-2502, Wyo.R.S. 1931, read as follows:
"Executors to take possession of entire estate. The executor or administrator must take into his possession all of the estate of the decedent, real and personal, and collect all debts due to the decedent or to the estate.”
“Actions by and against executors and administrators. Actions for the recovery of any property, real or personal, or for the possession thereof, or for the destruction, wasting, conversion, injury, taking or carrying away thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contract, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates.”
Section 89-503 Wyo.R.S.1931, reads:
“Actions by executor or officer. An executor, administrator, or guardian, a trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted; and officers may sue and be sued m such name as is authorized by law.”
It seems clear to me that the administrator was authorized to bring an action on the policy predicated on the assignment and in the alternative on the provisions of section 88-4009 without joining the legal heirs.
It was the duty of the administrator to set up all the grounds of his cause of action; and if he failed so to do, a judgment in the action would be a bar to a new action on the policy by the administrator, based on a different ground. The national courts are committed to the doctrine that a judgment or decree upon the merits concludes the parties and their privies as to all the media concludendi or grounds for asserting the right known when the suit was brought. Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069; United States v. Cal. & Ore. Land Co., 192 U.S. 355, 24 S.Ct. 266, 48 L.Ed. 476; Vinson v. Graham (C.C.A.10) 44 F. (2d) 772, 778.
It follows that the defense of fraud was completely available in the law action, that plaintiff was not entitled to equitable relief, and that the stay was properly denied. Enelow v. New York Life Ins. Co., 293 U.S. 379, 385, 55 S.Ct. 310, 79 L.Ed. 440.
Lincoln National Life Insurance Company v. Hammer (C.C.A. 8) 41 F. (2d) 12, 17; Dawson v. Kentucky Distilleries Co., 255 U.S. 288, 296, 41 S.Ct. 272, 65 L.Ed. 638.
Jefferson Standard L. Ins. Co. v. Keeton (C.C.A. 4) 292 F. 53; Peake v. Lincoln National L. Ins. Co. (C.C.A. 8) 15 F. (2d) 303; Keystone Dairy Co. v. New York Life Ins. Co. (C.C.A. 3) 19 F. (2d) 68.