1. A clause in the insurance policy that an assignee from the assured make proof of his interest and the extent thereof before recovering from the company on the policy, is intended for the benefit and protection of the company, which may waive it, and is not available to a conflicting claimant.
2. The assignment of the policy from the assured in this case was absolute in character and there is no evidence in the case to support the claim of the assured's administratrix that the assignment was only by way of security, or that the parties to the assignment subsequently agreed or intended that there be a reassignment to the assured.
3. A life insurance contract is not a wager, bet or hazard of stakes under the statute against wagers ( 2 Comp. Stat. p. 2693 § 1), even though the payment promised by the insurance company is in certain respects dependent upon a contingent event. On the contrary, the business of life insurance is sanctioned, supervised and even fostered by the laws and government of this state.
4. Though a wager might be effectuated in the form of a life insurance contract, that is not the case in the present instance where the assignee, who had invested a large sum in the assured's company, sought to protect himself financially by lessening the risk of loss to himself by the deprivation of the company of the services and good will of the assured by his death.
5. The assignee paid all premiums on the policy in question, even after the assured severed his relations with the company. The arrangement not being a wager in its inception, it did not become so thereafter, even though the assured severed his relations with the company.
6. An insurable interest in the life of the assured is not required of the beneficiary in this state. Meyers v. Schumann, 54 N.J. Eq. 414. The defense of insurable interest can only be raised by the insurance company itself.
7. The administratrix has made no tender of the amount of premiums paid by the assignee on the life of her husband; she does not admit that he is entitled to any part of the fund paid into court by the insurance company; her husband, the assured, never paid a cent of the premiums and had no interest whatsoever in the policy. She is entitled to none of the fund.
8. It was by no means unreasonable for the administratrix to test the claim of the assignee to the fund. The award of a counsel fee of $1,000 against her was improper. Counsel fee of $250 directed.
PER CURIAM.
So far as relates to the right to the fund, the decree under review will be affirmed, for the reasons stated in the conclusions filed by Vice-Chancellor Buchanan.
We do not concur, however, in the award of a counsel fee of $1,000 to Morris against the administratrix appellant. It was by no means unreasonable for her as an administratrix to test the claim of Morris to the fund. We see no good reason for a counsel fee of over $250. The hearing was very brief.
Counsel for respondent asks that the counsel fee be charged against Mrs. Richardson personally. As there is no cross-appeal on this or any other point, we do not consider it.
With this modification the decree will be affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.