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Pace v. Pace-Syllabus.

GEORGE E. PACE, ADMINISTRATOR OF AUGUSTUS N. PACE,

ET AL., APPELLANTS, VS. AUGUSTUS RAIFORD PACE, APPELLEE,

1. The statute requiring the next friend of an infant to give bond upon

the institution of a suit relates exclusively to proceedings at common law. So much of the case of Sanderson's Administrator vs.

Sanderson, 17 Fla., 829, holding otherwise, overruled. 2. In a suit in chancery by an infant through his next friend, the Chan

cellor has the power to adopt such measures as are necessary to fully protect the interest of the infant, and should exercise it

when necessary. 3. A contract of life insurance describes the beneficiary thereunder as

"for the benefit of the estate of the insured :" Held, That the beneficial interest under this contract, enured at the time of its execution and delivery to persons other than the assured, and that no interest passed to his assignee upon the party subse

quently becoming a voluntary bankrupt. A contract of life insurance of a foreign corporation ii executed and

delivered in this State, must be construed by the laws of his State, and under the statute of this State, (Chap). 1364, Laws, McC.'s Dig., 534,) wherever the contract does not describe a person or persons, class or classes, in such terms as to show affirmatively that the beneficiaries are not the children, husband or wife

of the assured, it enures to her or their benefit. Where the description of the beneficiaries in a contract of life insur

ance is ambiguous, or if the ternis used are applicable to several persons, or if the description is imperfect, extrinsic evidence may be resorted to to ascertain the meaning of the contract: Held, Under the circumstances in this case that the terms "for the benefit of the estate of the insured," referred to and meant for the benefit of an only minor child less than five years of age at the date of the contract, and not to the adminisrator or distribu tee of the estate, and that the property and the right to collect the proceeds of the policy enured to the child and not to the ad

ministrator of the assured. 6. The sureties upon the boud of an administrator who has collected

moneys, neither assets of the estate, nor subject to distribution by liim, ard to which as the legal representative of the decedent

Pace v. Pace-Argument of Counsel.

he was not entitled, are not liable for any appropriation or use of

the same by the administrator for his personal benefit. 7. A court of equity has jurisdiction to call a guardian to an account at

the suit of the ward, also to restrain any improper disposition of the fund, by its process to preserve it and in proper cases to remove the guardian. Such suit need not be instituted in the name

of the Governor of the State. 8. To a suit against a guardian for an account, the sureties upon his

bond are proper but not necessary parties. As they are interested in the taking of the account, they ought to be made parties, but the rule is not imperative that they must be.

Appeal from the Circuit Court for Duval county.
The facts of the case are stated in the opinion.

F. F. L'Engle and M. C. Jordan for Appellants.

Upon the first part of the first ground of the assignment of error, that is want of equity in the bill, it will appear by reference to the bill that all the assets or property of any kind alleged as having come to the possession of the administrator is the sum of $4,935 realized from the policy of insurance on the life of the decedent; that this policy was inade "for the benefit of the estate of the insured;" that the infant claims that this sum belongs to him exclusively; that the creditors have no shadow of a right to parties to participate or share therein, and that the administrator resists payment to him upon the ground that the same should first be subjected to the payment of the demands and claims of the creditors of the deceased, having plainly been intended ior such purpose by the decedent, when he at the time of the insurance being unmarried and having but one child, this infant, had the policy made payable for the benefit of o state of the insured.

It will be observed that there is no charge in the bill against the administrator except that he is diverting this sum to the claims of the creditors, a course he is bound to: Pace v. Pace-Argument of Counsel.

pursue by virtue of the duties and obligations devolving upon him in his position as administrator; that although he is vaguely charged in said bill with wasting the assets of the estate; that the sole charge of waste consists in his action in favor of the creditors as aforesaid.

This charge, like the charge of fraud, ought not to be entertained by courts of equity as a basis for relief upon the inere allegation of such a fact; sufficient facts should be stated and sufficient statements made in the bill as will carry upon their face the existence of such a state of things as will warrant a court of equity in interfering with the administration of an estate under the supervision and control of the County Judge. Again, as the sureties are made parties to this bill, and they are only responsible for any breach of the administration bond, the bill showed upon its face such a condition of things as would enable the court to believe that there had been a breach of the bond. It is only in this event that they are liable.

The conditions of an administrator's bond are prescribed by law. McClellan's Digest, 79.

Again, if the infant is not entitled to share in the proceeds of said policy until the demands of the creditors are first paid, would it not be necessary for him to show that the debts of the deceased have all been paid so far as proved, or that the administrator is derelict in not paying them, and that he has offered, or is ready and willing, to furnish bond or security for the refunding of any sum that may be necessary for the payment of any debts which may subsequently be proven against the estate, as required by the statute. McClellan's Digest, p. 84, Sec. 29; 17 Fla., 832, 833, Sanderson vs. L'Engle.

It follows, then, that as the infant claims the benefits of the policy to the exclusion of the creditors that this is the only bone of contention between him and the administra

Pace v. Pace-Argument of Counsel.

tor. This right in this particular must depend upon the construction of section 22, page 534, McClellan's Digest :

“Whenever any person shall die in this State leaving insurance upon his or her life, the said insurance shall enure exclusively to the benefit of his or her child or children, husband or wife, in equal portions, or to any other person 0 persons, for whose use and benefit said insurance is declared in the policy; and the proceeds thereof shall in no case be liable to attachment, garnishment or any legal process by any creditor or creditors of the person whose life was so insured, unless said policy declares that said insurance was effected for the benefit of such creditor or creditors."

It is plain that this law was only intended to save the person for whose benefit the insurance was effected all an1oyance and expenses of legal proceedings by creditors of the insured, except those creditors for whose benefit it was obtained. It is clear that the words “or to any other person or persons for whose use or benefit said insurance is declared in said policy" qualifies and explains the preceding part of the sentence, and that this language of the statute, with the language of the policy, show that it was not effected for the exclusive benefit of this infant. If the deceased had so intended he would certainly have so declared in the policy, and the infant without such declaration gets no rights from the statute.

The intention of Pace, then, ought to be gathered from the language of the policy of insurance, if it be possible, and applied to the case upon the same principle governing the construction of wills. It will thus be seen that it is a mere difference upon a question of law that the administrator has refused to pay this infant the sum of money alleged by him as enuring to his benefit exclusively.

In other words, what Pace meant when he had the Pace v. Pace-Argument of Counsel.

clause "for the benefit of estate” inserted in the policy is a question for a court of law to decide.

If a person dies intestate under the laws of the State his property or estate, after certain claims and debts are paid and the law otherwise complied with, goes to the creditors first and then to his heirs.

If this money is to become a part of his estate under the law, then we submit that it must be subjected to the payment of his debts.

And this brings us to the second part of the first ground of error. That is, that the complainant has a complete and adequate remedy at law. He not only has it before the County Judge under the statutes of this State, but also in the Circuit Court by a suit upon the bond of the administrator; so, also, as to the guardian.

The sureties on an administrator's bond must be sued at law. The remedy against them is not in equity. Teague vs. Dendy, 2 McCord's Chancery, 207; American Decisions, Vol. 15, p. 643.

As to the construction of similar statutes to this statute regarding the proceeds of life insurance, we would call the attention of the court to the decisions of the courts of Wisconsin, Tennessee, Illinois and Massachusetts, &c., comriented on in May on Insurance, pp. 470, 483.

As to the second ground of error, to-wit: "That the suit should should be prosecuted in the name of the Governor of the State for the use of the infant, and that he is a necessary and proper party complainant,” there can be no doubt under the conditions of the bond itself and under the provisions of the statute. McClellan's Digest, p. 95, Sec. 67; Ibid., p. 79, Sec. II.

The same doctrine holds good as to the guardian's bond.

As to the third ground of error, to-wit: “That the sureties on the guardian's bond are necessary and proper par

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