delivered the opinion of the court.
In 1853 defendant issued a policy of insurance upon the life of William Holliday, husband of plaintiff, Amanda, payable to her or her legal representatives. In 1856 his said wife Amanda died; but her husband, who had all along paid the premiums, continued to pay them until February, 1860, when, having remarried, he procured a memorandum upon the policy that it should stand for the benefit of his then wife and others named. Said William Holliday continued to pay the premiums until 1868, when he died; and on due proof of his death the defendant paid the amount called for by the policy, to the beneficiaries named in the memorandum. The plaintiff sues for the amount of the insurance, claiming that it belongs to the representatives of the deceased wife.
No instructions were given and no exceptions were taken to any ruling of the court; hence the defendant contends that there is nothing for us to review. But the facts are all admitted upon the record, and we must pass upon their legal effect. It is only when they are disputed, and when there is evidence tending to sustain the claim of each party, that the losing one is concluded: by the finding in the trial court.
It will be perceived that the policy was issued and the wife died before the adoption in this State of the statutory provision expressly authorizing policies in the name of and for the separate use of the wife. It is hence contended that, as a common-law policy, it is void, inasmuch as the wife had no such insurable interest in the life of the husband as would sustain it.
Gambling or wager policies are those where the persons for whose use they issue have no pecuniary interest in the life insured.. But the wife has a direct interest in the life of her husband. The law requires him to support her, and in most cases she is actually dependent upon him for support. This creates an interest, and her relation is not the same as that of a wife or child to the husband or father who takes out a policy upon their lives for his own benefit; and the language of Kent (3 Com. 368), that “the insurable interest in the life of another person must be a direct *48and definite pecuniary interest, and a person has not such an interest in the life of his wife or child, merely in the character of husband or parent,” does not authorize the conclusion that a wife has no pecuniary interest, independent of the statute, in the life of her husband. Judge Scott, in McKee v. Phœnix Ins. Co., 28 Mo. 383, whose opinion is criticised by counsel, takes, I think, a more sensible view of the question.
The original policy, then, must be treated as valid; and had the husband died during the life of the beneficiary, the conditions having been fulfilled, it could have been enforced. But it does not follow that the action of the husband, after the death of the wife, must be held to have been for the benefit of her representatives. The only ground upon which the policy could be sustained when issued, is the fact that the wife had a right to look to the husband for support. It was taken out for the purpose of securing her support after his death. The premiums were paid by him, and the whole thing was instituted and carried on for this laudable purpose. This object being forever lost, was the husband bound to continue the policy for the benefit of her representatives? Could he not surrender it, or, by failing to pay further premiums, let it lapse ? Or could he not, with the consent of the company, change the beneficiaries? He must be held to have had that right. It amounts to a surrender of the old policy and the issue of a new one. Every payment made after the change was in the interest of the present wife. Suppose he had refused to^pay at all, where would be the plaintiff, and what could he recover? ! The payments upon renewal were not for his benefit, and he has no claim to that which they secured.
The right of the husband, after the wife’s death, to dispose of a policy obtained by him for her benefit, is sustained by the Supreme Court of Wisconsin in Kerwan v. Howard, 23 Wis. 108, and I know of no case where the husband would be required to keep the policy alive for the benefit of his heirs.
The judgment will be affirmed.
The other judges concur.