THE

Pacific Reporter.

VOLUME XVII.

(75 Cal. 225)

TOMASINI et al. v. SUPERIOR COURT DEL NORTE Co. (No. 12,511.) (Supreme Court of California. March 6, 1888.)

CERTIORARI-WHEN LIES-INSOLVENCY-ELECTION OF Assignee.

An order of a superior court of a county in California appointing an attorney to vote for an absent creditor at the election of an assignee in an insolvent proceeding, and appointing the person chosen at such election assignee, cannot be reviewed on a writ of certiorari, the court having jurisdiction of the proceedings.

Department 2. Certiorari to superior court, Del Norte county; JAMES E. MURPHY, Judge.

Louis Tomasini et al., petitioners, against superior court, county of Del Norte, respondent.

L. F. Cooper, Sawyer & Burnett, and R. W. Miller, for petitioners.

PER CURIAM. Writ of certiorari to review orders of respondent appointing an attorney to vote for an absent creditor at the election of an assignee in an insolvent proceeding, and appointing as assignee the person chosen at such election.

If the petitioners were aggrieved at all by the action of the respondent it was by the order confirming the election and appointing the person selected assignee. But the court had jurisdiction of the proceeding, and the orders complained of, even if erroneous, cannot be reviewed on this writ. The prayer of the petitioners is denied and the writ dismissed.

(75 Cal. 245)

WINTERHALTER . WORKMEN'S GUARANTEE FUND ASS'N OF SAN FRANCISCO. (No. 9,913.)

(Supreme Court of California. March 1, 1888.)

INSURANCE-ACTIONS ON POLICY-EXECUTORS AND ADMINISTRATORS-RIGHT TO SUE. The executor of a testator, who, by his will, gave all of his estate after payment of his debts to his mother, is the proper party to sue for and receive the money due on a policy of insurance on testator's life, payable subject to the will of the insured. Department 1. Appeal from superior court, city and county of San Francisco; F. W. LAWLER, Judge.

Marcus Rosenthal, for respondent. J. G. Severance and Wm. Loewy, for appellants.

v.17p.no.1-1

SEARLS, C. J. Defendant is a corporation, and on the 16th day of March, 1880, plaintiff's testator, Fritz Hoffmeister, became a member of such corporation, and for a valuable consideration received therefrom its certain promise, agreement, and certificate in writing, in the words and figures following, viz.: "WORKMEN'S GUARANTEE FUND ASSOCIATION OF SAN FRANCISCO, CAL., No. 69.

"This is to certify that Fritz Hoffmeister is a member of the Workmen's Guarantee Fund Association of San Francisco, Cal., and as such is entitled to participate in the guarantee fund, to the extent of $1 to each member of said association in good standing at the death of said Fritz Hoffmeister, provided the number of members at that time shall not exceed 1,000. Said sum of $1,000 or less, at his death, shall be paid to subject to his will. This certificate is issued upon the expressed condition that said Fritz Hoffmeister shall comply with all the laws, rules, and requirements which are now or may be hereafter enacted by the Workmen's Guarantee Fund Association. In witness whereof, the Workmen's Guarantee Fund Association has caused this certificate to be signed by its president and secretary, and the seal to be attested this 16th day of March, one thousand eight hundred and eighty. "WORKMEN'S GUARANTEE FUND ASSOCIATION OF SAN FRANCISCO, CAL. [Seal Corporation.] "P. VEASEY, Vice-President.

“E. M. READING, Secretary.”

Hoffmeister never filled the blank in the certificate by inserting the name of a beneficiary, but died on the 4th day of October, 1882, leaving a last will whereby he gave, devised, and bequeathed to his mother, Louisa Hoffmeister, after payment of all his debts and liabilities, all his estate and effects. Plaintiff was named as executor of the will, which has been regularly admitted to probate, etc. Defendant answered, admitting its liability to the extent of $1,000, but claimed that testator had, by his last will, designated his mother, Louisa Hoffmeister, as his beneficiary, and the person to whom said sum should be paid in the event of his death, and asked that said Louisa be made a party to the action, which was done. Plaintiff had judgment, from which, and from an order denying a new trial, defendants appeal. The articles of association of the defendant provide: "(2) That the purposes for which it is formed are to provide for the payment to the widow, heirs, and legatees of each deceased member thereof, a stipulated sum of money, by contributions from surviving members upon assessments duly made therefor." The constitution of defendant, article 2, provides as follows: "Art. 2. The object of this association is to provide for the payment to the husband, widow, heirs, or legatees of a deceased member, a stipulated sum of money, by contributions from its surviving members upon assessments duly made therefor." The defense also introduced the following in evidence: "The application of intestate for membership in the association contained the following clause: I hereby authorize and direct that the amount of said guarantee fund to which I may be entitled shall, at my death, be paid subject to my will.""

The question presented for determination upon the facts is this: Is the executor entitled to recover the sum due decedent, or does it go directly to his mother, Louisa Hoffmeister? It may be stated that, where a policy of life insurance expressly designates a person as entitled to receive the insurance money, such designation is conclusive, in the absence of some question as to the rights of creditors. The receipt of the person designated will discharge the insurer, and he may sue for and recover the amount due at the maturity of the policy. In such cases the legal representative of the insured has no claim upon the money, and cannot maintain an action therefor. It forms no part of the assets of the estate of the insured. The exceptions to this rule, involving the rights of creditors, are not involved in this case, and need not be commented upon. Bliss, Ins. §§ 316, 317. The policy in the present instance, as will be seen, did not specifically name the beneficiary; it was to be