Life policies are very frequently assigned;1 and many are made for the purpose of assignment, to enable the insured thereby to give security to his creditor, (u) and the assignee recovers the whole amount insured, and not merely the consideration for the assignment. (v) Policies usually contain rules and provisions respecting assignment, and they are binding on the parties to the contract. If, therefore, these make an assignment of the policy a discharge of the insurers, an assignment would have this effect. (w) Notice and assent are usually required to give effect to an assignment; but any such requirement would be construed the more strictly against the insurers, because, as has been said by a court, all the reasons which require * the assent of under- writers to make assignments of fire policies valid, do not apply to life policies. (x)
In life policies, there is sometimes a clause to the effect, that an assignment, duly notified and assented to, shall protect the assignee against acts of the insured which would have discharged the insurers had the policy remained in the hands of the insured, (y) It has been held, that without such express provision, whatever would be a forfeiture of the policy if it remained in the hands of the insured, would operate equally after the assignment. (z)
(u) Ashley v. Ashley, 3 Sim. Ch. 149; Godsall v. Webb, 2 Keen, 99; Barber v. Butcher, 8 Q. B. 863; N. Y. Ins. Co. v. Flack, 3 Md. 341.
(v) St. John v. American Ins. Co. 2 Duer, 419, 3 Kern. 31.
(w) In New York Ins. Co. v. Flack, 3 Md. 341, by the terms of a life insurance policy, the company agreed with "the assured, his executors, administrators," to pay the amount to his "legal representatives," after due notice and proof of death, and at the foot of the policy were these words: "N. B. If assigned, notice to be given to the company, it was held, that the provision to pay to the "legal representative," was designed to apply to a case where the party died without having previously assigned, and was not to be construed as in any sense limiting the power of assignment.
(x) New York Ins. Co. v. Flack, 3 Md. 341.
1 An assignment of a life policy, valid in its inception, to one having no insurable interest, has been held invalid in Stevens v. Warren, 101 Mass. 564; Franklin Ins. Co. v. Sefton, 53 Ind. 380; Same v. Hazzard, 41 Ind. 116; Guardian Ins. Co. v. Hogan, 80 Ill. 35; Swick v. Home Ins. Co. 2 Dillon, 166; Lewis v. Phoenix Ins. Co. 39 Conn. 100; Singleton v. St. Louis Ins. Co. 66 Mo. 63; and valid in Clark v. Allen, 11 R. I. 439. Money collected on the policy by an assignee who has no insurable interest can be recovered, although the assignee had agreed to pay and had paid all the foes and assessments to the underwriters. Warnock v. Davis, 104 U. S. 775. - A married woman beneficially interested in a policy may assign it, and the assignee may maintain an action upon it in his own name. Archibald v. Mutual Ins. Co. 36 Wis. 542. Under the laws of New York, creditors cannot avoid a wife's assignment for the benefit of her children of a policy on her husband's life. Smillie v. Quinn, 90 N. Y. 492. That an action for the possession of a life-insurance policy cannot be maintained by the payee against an assignee of the policy during the life of the person on whose life and by whom the insurance was effected, see Bowers v. Parker, 58 N. H. 565.
A delivery and deposit of the policy for the purpose of an as-signment, would operate as such without any writing. (a) But indorsement on the policy, with notice to the insurers, has not the effect of an assignment, so long as the policy remains in the possession of the insured; because delivery of the policy is requisite. (b) 1 This, however, is not necessary, where the assignment is by a separate deed, which deed is delivered. (c) And a mere promise to assign, founded on a valuable consideration, might be good against the insured, and perhaps against his assignee in bankruptcy. (d) Any such promise would be strengthened by notice to the insurers, and assent by them.
From some cases it might be inferred, that life insurers have no delectus personarum, or rather, that this right has less force with them than with marine or fire insurers. If this be so, the principal reason for holding insurers discharged by an as-signment * without their leave, in the absence of all provisions about it, would not apply to life policies. (e)
(y) Cook v. Black, 1 Hare, 890; Moore v. Woolsey, 4 Ellis & B. 243, 28 Eng. L. & Eq. 255.
(z) Amicable Society v. Bolland, 4 Bligh (n. S.), 194.
(a) In re Styan, 1 Phillips, Ch. 105; Cook v Black, 1 Hare, 390; Moore v. Woolsey, 4 Ellis & B. 243, 28 Eng. L. & Eq. 248; Wells p. Archer, 10 S. & R. 412; Harrison v. McConkey, 1 Md. Ch. 34; N. Y. Ins. Co. v. Flack, 3 Md. 341. The voluntary payment of premiums on a policy of life insurance, gives to the payer no interest in the policy. Burridge v. Row, 1 Younge & C. Ch. 183.
(6) Palmer v. Merrill, 6 Cash. 282.
(c) Fortesque v. Barnett, 3 Mylne & K. 36.
(d) Tibbitts v. George, 5 A. & E. 107. See Williams v. Thorp, 2 Sim. 257; Gibson v. Overbuy, 7 M. & W. 557. It is held in Louisiana, that one who has effected insurance on his life, may assign the policy, or a part of it, to a bona fide creditor; but such assignment will be without effect as to third persona, creditors of the insured, where there was no proof of notice to the assurers before the eath of the assured, nor of the acceptance of the assignment by the transferee before that date, and the policy remained in the possession of the assignor. Succession of Risley, 11 Rob. La. 298.
(e) See N. Y. Ins. Co. v. Flack, 3 Md. 341; Ellis on Life Ins. 552, 553.
1 Delivery is requisite to place the assignee in the assignor's position so as to recover the full debt due. See Hartford Ins. Co. v. Davenport, 37 Mich. 609. The sending to the insurer's agent, with a request to keep for a person named, is a good delivery. Marcus v. St Louis Ins. Co. 68 N. Y. 625. If a husband in writing requests his wife to take a policy, and promises it to her if she keeps it up, it is a good equitable assignment. Swift v. Railway, etc. Ass. 96 Ill. 309. But a mere declaration in a letter that life insurance was made for the person to whom it is addressed, without any delivery of the policy, is no assignment In re Webb, 49 Cal. 541. See Alletson v, Chichester, L. R. 10 C. P. 319. - That as between creditors and a beneficiary in possession of the policy the latter will hold the funds, see Worthington v. Curtis, 1 Ch. D. 419; as well as his estate, see Smedly v. Felt 43 Ia. 607.