ON MOTION FOR A REHEARING. Plaintiff insists, on motion for a rehearing, that under the facility of payment provisions contained in the policies in suit, it was incumbent on defendant to show that the daughter of the insured to whom it elected to pay the amount due under the policy had incurred expense on behalf of the insured or for her burial.
It will be observed that the facility of payment provision contained in one of the policies gives no option to pay to any person other than the executor or administrator, husband or wife, or relative by blood, or lawful beneficiary, and does not require that any person to whom payment is made must have incurred expense on behalf *Page 872 of the insured or for her burial. That provision therefore need not be further noticed.
The facility of payment provision contained in the other policies consists of three independent clauses, making the amount due under the policies payable (1) to the beneficiary named in the policy, or (2) to the executor or administrator, husband or wife, or any relative by blood, or connection by marriage of the insured, or (3) to any other person appearing to the company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for her burial. It was in the discretion of the company to make payment under any one of these clauses. It elected to make payment to a relative by blood, the daughter of the insured. If the company acted in good faith in so doing, the receipt of the daughter is conclusive and a complete defense. If the company had elected to make payment under the third clause, it would have been incumbent on it to show that the person to whom payment was made appeared to the company to be equitably entitled to payment by reason of having incurred expense on behalf of the insured, or for her burial. If a relative by blood, to be entitled to take as a beneficiary, must have incurred expense on behalf of the insured or for her burial, why should a relative by blood be mentioned at all? If that were so, such a relative would be put in the same class with a stranger, and, like a stranger, would take, and take only, under the third clause.
Plaintiff places much reliance on Sylvester v. Metropolitan Life Ins. Co. (Mich.), 238 N.W. 234. In that case the company made payment not to a relative by blood, but to an utter stranger, to the exclusion of the wife and relatives. The policy provided that the amount due under the policy should be paid to the executor or administrator of the insured unless payment was made under the facility of payment clause. On this policy the administratrix was held entitled to recover, notwithstanding the company had elected to make payment to a stranger. Clearly that is not this case.
In McCarthy v. Metropolitan Life Ins. Co. (Mo. App.), 90 S.W.2d 158, the policy provided for the payment of the amount due on the policy to the executor or administrator of the insured unless the company should exercise the right or option to make payment under the facility of payment clause. The company made payment to the administratrix. This court held such payment was a complete defense against the suit of the insured's mother. Clearly that is not this case.
Plaintiff, contrary to his former contention that the will of the insured was irrelevant and improperly admitted in evidence, now appears to contend that this insurance was by the will of the insured bequeathed to her two daughters, and that under the will the administrator, c.t.a. is entitled to the insurance. However, we are *Page 873 not persuaded that plaintiff is entitled to recover under the facts of this case. If the company had in the exercise of its discretion elected to make payment of the insurance to the administrator, c.t.a., it would then have unquestionably become an asset of the insured's estate, and as such would have passed to the two daughters of the insured under her will. The evidence shows, without dispute in the record, that the two daughters have received each one-half of the insurance. Plaintiff contends, however, that as administrator, c.t.a., he is entitled to recover the insurance so that it may be subjected to the payment of the debts of the insured. We must here be reminded that the bequest of the insurance, if it passes under the will, is a specific legacy, and as such is not subject to the payment of debts, and may not be touched for that purpose, until the assets of the estate not specifically bequeathed are exhausted. Plaintiff has shown no claims allowed against the estate except the claim for funeral expenses. He stated that this bill had not been paid because he had no funds to pay it with. Yet he does not show the value of the estate nor of what it consists. The will shows that the insured was possessed of both real estate and personal property. The value of this real estate and personal property is not shown. What other property or effects she owned is not shown. She specifically bequeathed the insurance to her daughters without charging it with the payment of her debts. Plaintiff now insists upon a recovery of the insurance, without any showing that the other assets of the estate available for the payment of funeral expenses, are not amply sufficient for that purpose. Obviously, so far as the evidence shows, the only object to be accomplished by this suit is to bring the insurance into the estate of the insured in order that it may be paid over to the two daughters, under the will, who have already received the full amount of the policies.
As we have said in our original opinion, we repeat, that since defendant made payment to a person to whom it was expressly authorized to make payment, that is, to a relative by blood, the burden was on plaintiff to show that the payment was made in bad faith, and there being no evidence of bad faith there was no issue for the jury, and the instruction in the nature of a demurrer to the evidence was rightly given.
The Commissioner recommends that the motion for a rehearing be overruled.