Page:The Green Bag (1889–1914), Volume 16.pdf/290

 Problems of Survivorship. an intention apparent to dispose of the policy fully and not to have it revert to his estate, analogous to the intention against intestacy in the will cases, it -is 'carried out. The proceeds do not ~go to the estate of the insured, but to the representatives of the first beneficiary. If under the law the repre sentatives of the husband in Wing v. Angrave1 could have gotten the property, Wing's claim would have been greatly weak• ened. Intestacy would have been avoided without deciding for him. Secondly, how could the condition" be construed so as 'to make it possible for a second beneficiary'-'to prove its performance? "Non-survival" of the first beneficiary is no easier to establish than his or her "pre-decêase." "Failure of the gift to the first beneficiary" cannot be shown. This discloses the difference between this sort of case and the will' cases. There failure of the gift can be shown. It can be proven that the facts are such that the repre sentatives of the first 'devisee cannot get the, property because oí inability to sustain the burden of proof resting on them. But no such burden of proof rests on the repre sentatives of UK primary beneficiary of an insurance policy.3 The representatives of 1 8 H. L. Cas. 183. 1 Any claimant other than the first beneficiary, has of*

245

the beneficiary can take. There is no failure of the gift. Suppose the condition be con strued "on failure of the first beneficiary to take personally the right to the proceeds shall pass to the second." This seems to go the full length of stating1 the insured's intention* Yet the second beneficiary cannot show that the first did^fc^ilrvive long enough to take personally. ^^^Mk However, in^^ " v. Linzee4 a subsequent claimant, the estate of the insured, succeeded. But this was because the court held that, al though no right to change the beneficiary was reserved, yottAc first beneficiary got no vested ijrterest. ^niis of course is contrary to the 'general doctrine already stated. It, however, excites one's sympathies and seems to accomplish the aim of a husband in taking out a policy, payable to his wife and in case she died before him to his children, better than the other doctrine. • If the policy cre ates no vested interest, the case is exactly the same as the will case, both as to burden of proof and the propriety and possibility of construihg the condition liberally.5 course the same burden as to this condition as the cesçnd beneficiary. 3 As explained sufra p. 244.

'135 Mass. 468(1883). 5 Hildebrandt?'.Ames, 27 Tex. Civ. Ap. 377, 66 S.W. 311 (1901) is in accord with Fuller?1. Linzee, sufra.