In no jurisdiction in the United States is the law as strict in denying relief to a stranger to the contract as it is in England. But there is no uniformity in the law of the several States. That of Massachusetts, until recently at least, most nearly approached the English rigor. Early decisions which followed what was then supposed to be the English law, and gave a direct right to the sole beneficiary of a contract and to a creditor against one who had promised to pay his debt, have been overruled.62 But by statute, if not otherwise, the beneficiary of a life insurance policy is entitled to the proceeds of the policy as against the personal representatives of the insured,63 and by a later statute 64 may sue the insurance company in his own name. Further, the Massachusetts court has held that a policy of fire insurance insuring the premises of a mortgagor and taken out and paid for by him, if made payable to the mortgagee, may be sued upon by the latter in his own name.65 The mortagee's interest in such a policy is essentially

62Terry v. Brightman, 132 Man. 318; Marston v. Bigelow, 160 Mass. 46, 22 N. E. 71, 5 L. R. A. 43; Nima p. Ford, 159 Mass. 575, 36 N. E. 100; Wright v. Vermont Life Ins. Co., 164 Mass. 302, 41 N. E. 303; Clare v. Hotch, 180 Mass. 194, 62 N. E. 260; overruling Felton v. Dickinson, 10 Man. 287; Felch v. Taylor, 13 Pick. 133; Bacon v. Woodward, 12 Gray, 376, 382. Cf. Nash. v. Commonwealth, 174 Mass. 336, 64 N. E. 866.

63 Stat. 1887, c. 214, sec 73. This statute and that referred to in the following note are incorporated in Rev. L. (1902), 118, c. {73. See also as to fraternal beneficiary associations Stat. 1888, c. 429, Sec.Sec. 8, 9; Rev. L., c. 119, under which a beneficiary was allowed to sue in his own name in Dean v. American Legion of Honor, 156 Mass. 435, 31 N. E. 1; Timberlake v. Supreme Commandery, 208 Mass. 411, 94 N. E. 685.

64 By statute of 1894, c. 225, a beneficiary may sue in his own name upon all policies of life insurance issued since that date. A decision in regard to this statute is Wright v. Vermont Life Ins. Co., 164 Mass. 302, 41 N. E. 303.

65 Palmer Saviegs Bank v. Insurance Co., 166 Mass. 189, 44 N. E. 211, 32 L. R. A. 615, 55 Am. St. Rep. 387, following previous practice, which had not before been disputed. The Massachusetts court relies on the fact that most courts in the country allow the mortgagee to sue. This is true. See 11 Am. Encyc. of Pl. and Pr. 394, But most American courts also allow any creditor to sue on a promise to pay him made to another, so that such holding by them as to the mortgagee's right is in accordance with their other decisions.

In Michigan, where as in Massachusetts a creditor cannot sue upon a promise to pay his debt, a mortgagee cannot sue upon insurance of the mortgagor made payable to the mortgagee. Hartford Fire Ins. Co. p. Davenport, the same as any creditor's interest in a promise made to his debtor to pay the debt. It is true the promise of the insurance company is conditional and is not to pay the debt as such, but any payment made by the insurer operates as payment of the debt pro tanto, and, if all the parties are solvent it is the mortgagor not the mortgagee who derives benefit from the payment. The only distinction that seems possible to except this case from the general rule in regard to promises to pay a debt to a third person is to regard a policy of insurance as a mercantile instrument, the effect of which is largely determined by business custom 66 and which may be sued on like negotiable paper by the party to whom it is made payable without regard to who furnished the consideration or negotiated the contract. This distinction seems sound. There are also decisions in Massachusetts, not overruled, which hold a devisee who has accepted a devise made conditional on payment to another personally liable to the beneficiary.67 Finally, it has recently been held that a promise to a parent to give the latter's child a sum of money may be enforced by the child.68 The reasons given for distinguishing the case from earlier decisions 69 seem inadequate, but it may induce the Massachusetts court to recognize in the future more fully than in the past that a sole beneficiary should be entitled, under some form of procedure, to enforce a promise made for his benefit.

37 Mich. 609; Minnock v. Eureka F. & M. Ins. Co., 90 Mich. 236, 51 N. W. 367; conf. Hopkins Mfg. Co. v. Aurora F. A M. Ins. Co., 48 Mich. 148, 11 N. W. 846. In Coffinsville Savings Society v. Boston Ins. Co., 77 Conn. 676, 60 Atl. 647, 69 L. R. A. 924, it was also hold that pairing the loss payable to the mortgagee gave the latter no contract rights and that he was therefore bound by an arbitration to fix the loss under the policy, though not made party to the arbitration.

66 See Langdell, Summary Contracts, Sec.Sec. 49,51.

67Fetch v. Taylor, 13 Pick. 133; Adams v. Adams, 14 Allen, 65. In Prentice v. Brimhall, 123 Mass. 291, 293, Gray, C. J., explained these decisions by the lack of equity powers in the court when the first decision was made. As no equitable charge on the property could have been enforced, the defendant would hare escaped altogether if not held personally liable.

68Gardner v. Denison, 217 Mass. 492, 105 N. E. 359, 51 L. R. A. (N. 8.) 1108.

69 Ibid, at p. 494: