delivered the opinion of the Court:
On the 1st of August, 1872, the Illinois Masons’ Benevolent Society, for the consideration therein mentioned, issued, under its seal, to H. B. Johnson, of Toulon, this State, a certificate of membership, in the nature of a policy of insurance, whereby said society promised and agreed “to and with the said H. B. Johnson, his heirs, executors, administrators and assigns, well and truly to pay, or cause to be paid, to Judith Johnson, his wife, or the legal representatives of the said H. B. Johnson, within thirty days after due notice and satisfactory evidence of his death, ” certain sums of money in said certificate or policy specified. Mrs. Judith Johnson having-previously died, the society, on the 17th of January, 1880, at the request of the assured, and upon his representation that Mrs. Elizabeth L. Van Epps, of Peoria, Illinois, was then his affianced, cancelled the above certificate of insurance, and issued another to him of that date, substantially the same as the first, except that it was made payable to the said “Mrs. Elizabeth L. Van Epps, or the heirs of the said H. B. Johnson.” At the time of issuing the new certificate, certain indorsements were made upon the old-one. Across the face was written: “Cancelled—Null and void—New certificate, January 17, 1880.” On the back is the following:
“On the 17th day of January, 1880, the within certificate was surrendered to the Illinois Masons’ Benevolent Society, at my request, and a new one of that date issued, with benefit payable to Mrs. Elizabeth L. Van Epps, my affianced. I have no children.
H. B. Johnson,
Formerly of Toulon, Stark county, Ill.”
At the date of this transaction Mrs. Van Epps was a married woman, though living apart from her husband, from whom she was divorced on the 6th of October following. The evidence tends to show that prior to the above transaction the assured was an occasional guest or lodger in the house of Mrs. Van Epps, and that during the year 1880, his health having become precarious, he changed his residence to Peoria, and became a permanent lodger in her house, where he was taken care of and supported by her until the time of his death, which occurred on the 25th of October, 1881. The deceased left no children or descendants of children, the appellants being his collateral heirs only. Upon Johnson’s death, the company having - been notified by appellants not to pay to Mrs. Van Epps the amount due under the policy, payment was accordingly withheld until their respective rights could be determined. The company thereupon filed the present bill of interpleader, to compel them to litigate their title to the fund in question, which amounts to $4160.41. The company has brought this sum into court, that it may be paid to the successful claimants, whoever they may be. Upon the hearing of the cause the court found Mrs. Van Epps entitled to the fund, and entered a decree accordingly, which, on appeal, was affirmed by the Appellate Court for the Second District, and the heirs bring the record here for review.
After a careful consideration of the evidence in this case, we do not feel inclined to disturb the decree, unless some imperative rule of law demands it. The proofs satisfactorily show that Johnson, after the death of his wife, by reason of the loss of health, and consequent travel in attempting to . regain it, became financially in very straightened circumstances,—so much so that he was in effect forced to make some disposition of his certificate or policy of insurance, or suffer it to lapse for non-payment of assessments. Under these circumstances he “entered into arrangements with Mrs. Van Epps whereby she was to pay all assessments, furnish him a home, and take care of him in case of sickness, ” in consideration of which she was to receive the proceeds of the policy upon his death. In pursuance of this understanding, the old certificate was taken up and cancelled, and a new one issued, as already stated. This agreement has been faithfully executed on her part. The evidence shows that after the change in the certificates, all assessments, amounting in the aggregate to $165.20, were paid by her; that she furnished the deceased with a comfortable home, supported and nursed him through a long period of suffering and prostration that preceded his death. Whatever may be the legal aspects of the case, it must be conceded Mrs. VanEpps, on the principles of natural justice, has a strong claim upon the fund in dispute. But of course these principles, of themselves, can not avail, as the rights of the parties to this, as well as tó all other legal controversies, must be determined according to the positive law of the State, whether that law entirely coincides with our notions of natural equity, or not. The question then is, when thus tested, what are the legal rights of the parties ?
The first position assumed by appellants, as stated in their own language, is: “That immediately upon the issuance of the first policy, payable to ‘Judith Johnson, or to the legal representatives of H. B. Johnson,’ the right of said beneficiaries became vested, and could not be divested in any way without their consent. The property, or ownership of the policy, was in the beneficiaries, and beyond the control of Johnson, the insured, and he could do no act to divest or transfer it from them to other parties. ” Numerous authorities are cited as sustaining the view thus stated, among which are the following: Bliss on Insurance, sec. 317; May on Insurance, secs. 390, 391; Continental Life Ins. Co. v. Palmer, 42 Conn. 60; Chapin v. Fellows, 36 id. 132; Gould v. Emerson, 99 Mass. 154; Glanz v. Gloeckler, 104 Ill. 573.
With respect to the cases cited, appellee contends they are, in the main, if not altogether, based upon the statutes of the several States in which they arose, and not upon common law principles. It is also claimed the text of May and Bliss is founded solely upon these eases, and hence it is concluded the authorities cited can have no effect in this case. It is further claimed by appellee, that in the absence of any statutory provisions controlling the question, the rule contended for by appellants is applicable only where the policy is taken out by the beneficiary, and not by the party whose life is insured,—or, in other words, only when the contract of insurance is between the beneficiary and the insurer, as, where a wife or child takes out a policy on the life of the husband or father, as in the case of Glanz v. Gloeckler, 104 Ill. 573, above cited; that the rule has no application where one takes out a policy in his own name, for the benefit of his wife or child, as was the case here; that in such case, the contract being between the insurer and the party whose life is insured, so long as the latter retains possession of the policy he has the right, with the consent of the insurer, to change the contract of insurance so as to give the proceeds of the policy, upon his death, to a different beneficiary, or to change it in any other manner the contracting parties may agree upon, not contrary to law or good morals. That this position is supported by many analogies of the law, as well as by express adjudications, must be conceded; (Clarke v. Durand, 12 Wis. 248, Kerman v. Howard, 23 id. 108, Foster v. Gile, 50 id. 603, and Gambs v. Mutual Life Ins. Co. 50 Mo. 44;) and assuming it to be the law, the decree in this ease is clearly right. But whether, as a general proposition, this be the correct view or not, we do not regard as material to the decision of this case, and we shall therefore not stop to consider it, as the conclusion to be reached will be placed on a different ground.
If, as claimed by appellants, where one takes out a policy on his own life for the benefit of another, the latter at once acquires a vested interest therein which can not be defeated by any act of the assured or insurer, or by the combined action of both, it would seem to follow such an interest would not be defeated by the death of the beneficiaryjhi the lifetime of the assured, but that in such case the right thus vested in the policy would pass, like any other chattel interest, to the executor or administrator of the beneficiary, so that if it be assumed the interest in the first certificate of insurance, upon being issued, at once vested in Mrs. Johnson, and the rule suggested be applied to the present case, it is clear the right to the proceeds of the policy is in her personal representatives, and not in the appellants, which of course would be fatal to their claim. They are therefore forced to the position that upon the death of Mrs. Johnson, the first beneficiary in the order of limitation, and all persons claiming through her, ceased to have any interest in the policy or its proceeds, and it seems to be now conceded by both parties to this appeal that the instrument in question must be now construed in the same way it would be if Mrs. Johnson’s name had never appeared in it as a beneficiary. It is manifest, as already remarked, any other view would be fatal to the claim of appellants. Striking out the name of Mrs. Johnson as a beneficiary, the policy or certificate would then be payable to “the legal representatives of the said H. B. Johnson, ” and the question for determination is, what construction should a policy receive thus drawn. If by the expression, “legal representatives,” is meant the executor or administrator of Johnson, which is the ordinary meaning attached to it, it is clear appellants did not, as contended by their counsel, take an immediate vested interest in the policy at the time it was issued, and if they took none then, it will hardly be contended they have any now. The doctrine seems to be well recognized that the words, “legal, representatives, ” when used to indicate those entitled by law to a decedent’s personal estate, as was the case here, uniformly mean, where there is nothing in the context or surrounding circumstances to indicate a contrary intention, “executors and administrators.” (Loos v. John Hancock Life Ins. Co. 41 Mo. 538.) In 2 Jarman on Wills, sec. 649, the author, referring to the expressions, “legal representatives, ” and “personal representatives, ” says: “Each of these terms, in its strict literal acceptation, evidently means executors or administrators, who are, properly speaking, the ‘personal representatives’ of their deceased testator or intestate.”
We fail to discover anything in the certificate to indicate the expression, “legal representatives,” was used out of its ordinary and appropriate sense; nor do we perceive anything in the surroundings or circumstances attending the transaction to warrant the conclusion the expression in question was used in any other sense than that of “executors” or “administrators.” On the contrary, we are of opinion the circumstances rather strengthen the view it was used in its ordinary and appropriate sense, as above stated. Judging from Johnson’s pecuniary circumstances at the time of his death, it is probable he was a man of limited means when the first certificate was issued. He was without children, and outside of his wife he had no relations that he was under any obligation to maintain or provide for. His highest duty, therefore, in disposing of the proceeds of the certificate of insurance, was to first provide for his wife, and then for such as might have just claims against his estate in the event he survived her, and this we think he accomplished by limiting the proceeds of the certificate in the manner he did. In short, we think, so far as the first certificate is concerned, it was the intention of Johnson that his wife should have the proceeds in the event she survived him, but in case she did not, such proceeds were to then go to his executor or administrator, to be distributed in due course of administration. This view is, of course, fatal to appellants’ claim. Whatever may have been the rights of Johnson with respect to the policy before the death of his wife,—about which we express no opinion,—we have no hesitancy in holding that after that event he had the same power over it as if it had originally been made payable to himself, “his executors and administrators, ” in which ease, of course, he would, at any time during his life, with the consent of the company, have had the right to surrender it, and take out another, making a different disposition of the proceeds, as was done in this case. The taking out of the new certificate was, under the circumstances of this case, in legal effect the taking out of a new policy; and that it was competent for the contracting parties to do so, under the circumstances of this case, is fully shown by the case of Swift v. Mutual Aid Society, 96 Ill. 309. We cite, also, in this connection, Cole v. Marple, 98 Ill. 58; Mutual Benefit Life Ins. Co. v. Atwood, 24 Gratt. 497; Mutual Life Ins. Co. v. Coghill, 30 id. 72; Doll v. Lincoln, 31 Maine, 428.
The judgment will be affirmed.
T , ^ „ 7 Judgment affirmed.