Page:Federal Reporter, 1st Series, Volume 7.djvu/627

 BEOCKHAUS V. KBMNA. 616' �the policy to him, and he kept the policy in fbroe «ntil hef death. He then collected the insurance and apptopriated the money to his own use. Thereupon Henry W. Clark brought suit against Durand for the proceeds of the insur- ance, claiming that he was the beneficiary in the policy, and that his mother could make no assignment of the policy which would defeat his alleged vested interest therein. The action was held not maintainable, the theory of the decision' being, that the insured could not be compelled to keep the policy in force ; that the insurance, so far as Clark was eon- cemed, was merely a proposed gratuity, and that he was a mere volunteer, having iio present beneficiai interest or vested right in the policy, or the inoneys secui;ed by it, prior to the transfer of the policy to Darand. The policy is characterized in the opinion as an executory contract, which it was held the insured could transfer to Durand with the assent of the Company, he agreeing to pay the premiums. Although the court in this case do in effect lay down the rule contended for by counsel in the case at bar, it is not to be overlooked that the peculiar state of facts in Clark v. Durand might well support the judgment, because, as is pertinently said by Justice Cassoday, in commenting upon that case in Foster v. Gile, decided by the same court, and hereafter referred to, "it would seem that the equitable interests of the mother, and her assignment to Durand, who paid all the premiums, were sufficient to vest the absolute title in Durand, to whom the insurance was in fact made payable. * * * Thus the legal and equitable estate became united in Durand, and the only question was whether the infant was entitled as cestui que trust." �In Kerman v. Howard, 23 Wis. 108, it was held that where a husband survives his wife, having previously procured a policy of insurance on his own life for her benefit and him- self paid the premiums thereon, he may dispose of it by will or otherwise. The construction of a statute of the state was involved in this case; but, independently of the statute, the court in effect held that the insured might change the policy ��� �