Page:Federal Reporter, 1st Series, Volume 10.djvu/243

 WORLEI V. KORTHWESTBRN MASONIO AID ASSOCIATION. 2Sl �made, ■would his administrator be precluded from mainiaining his action upon the instrument ? Certainly not ; but the difficulty witb this argument is that there is no real analogy between the two cases. A note payable to the order of the payee is to all intents and pur- poses, in legal effect, payable to the payee himself. The note becom- ing due, the payee may sue upon it in his own name, and recover judgment. He need not assign or indorse it, or in any other way order the note to be paid to any third person. But in the present nase it was not the legal effect of the contract that the money was payable to the decedent in his life-time. He could have maintained no action at all upon it. What the very contract provided was that the money should, after his death, be paid to such persons as he should, by will, appoint to receive it. This was its legal effect, as evi- deneed by its express "words; and the question is, can the admin- istrator step in and enforce it contrary to its legal effect ? Can he sue upon the contract, alleging it to be payable to any one except the deeedent's devisees ? And if he should recover the money, can he pay it out in distribution to any one but the devisees of the decedent? �Since the argument of this case at the bar, the question of the right of an administrator to sue in a case like the one now before us has been before the supreme court of lowa in the case of McChire v. Johnson, 10 N. W. Eep. 217. In this case the supreme court decided that the money due upon such a policy does not belong to the estate of the decedent as assets; that the only person "who has any interest in it, and who can sue for it, is the beneflciary ; and that the executor can maint'ain no action, the estate not being entitled to the money. The court further holds that the Code, §§ 2372, 1182, "contem- P- .tes a case when the policy of insurance is payable to the deceased or his legal representative," and not when it is payable to another person for the use and benefit of such person. The court distin- guishes this case from Kelly v. Mann, 10 N. W. Eep. 211. In that case, says the court, the money received from the insurance company was assets belonging to the estate, and being such it was held under the statute that it should be inventoried and disposed of according to law. �Suppose a devisee had been appointed by the decedent, would not payment to him be good ? Would not his acquittance be a valid dis- charge of the obligation to the defendant ? And in such case could the present administrator maintain an action upon the contract to recover the money from the devisee as assets belonging to the estate ? ��� �