The opinion
Supplemental Opinion on FuRtheR Reheaeing, Septembee 28, 1921.
Evans, 0. J.
8. Dower : insurance payable to surviving part I. It is to be conceded that our former opinions are incomplete in their discussion, in that the item of “life insurance” is not considered therein. It is a matter of some doubt whether the pleadings make any issue as to such item. The only reference thereto in the petition of plaintiff is contained in Paragraphs 6 and 11. Paragraph 6 was as follows:
“That plaintiff’s deceased husband carried life insurance in the amount of $58,000.”
Paragraph 11 averred that the three defendants had collected such life insurance and appropriated the same to their own use. It was not alleged that the plaintiff was the beneficiary of the policy; nor was any other fact pleaded as a basis for the claim that the insurance proceeds belonged to her, either in whole or in part. The trial court filed a lengthy written opinion in the case, comprising apparently a complete discussion of all points presented for his consideration. No reference is made therein to the item of insuraiice. The opening argument of plaintiff, as appellee, purports to be a full discussion of the case; but no reference is contained therein to the insurance. However, the decree entered by the trial court did in terms declare the insurance proceeds to be a part of the partnership property. The implication from such finding would naturally be that the plaintiff was entitled to recover the one-eighth part thereof. The only disclosure of the detailed facts pertaining to such insurance is to be’ found in the answer of the defendants, appellants here, and in the evidence in their behalf. It is to be said *123 also that the appellants made proper point in their opening argument here, calling in question that feature of the decree-entered below. It is true that the basis of their claim, of right to such proceeds which was put forth by them with greatest emphasis was the contract which we have already considered in our former opinions, and which we hold to be ineffective as a bar to the widow. But they did base their claim of right also upon other grounds, which we here consider. If the item had not been specified in terms in the decree, we should be inclined to hold that it was not within any material issue tendered by the petition. Inasmuch as the decree did specifically purport to adjudicate it, the appellants are entitled to demand our consideration of it in a specific sense.
The undisputed facts, as they appear from the pleadings and the evidence of the defendants, are that the “life insurance” in question was payable to the three brothers, appellants herein. It appears that similar insurance was carried upon the life of each member of the firm in favor of the other three members thereof. The undertaking of the insuring company was to pay the death loss upon any life to the other three members of the firm. Such form of insurance was legitimate. Each member of the firm had an insurable interest in the life of every other. The expense of the insurance was borne by the beneficiaries. It appears also that the insuring company held all these policies as security for loans negotiated to the firm. The method of collection of these policies upon the life of decedent was that the insuring company applied the full proceeds as a credit upon the indebtedness owed to it by the firm and the members thereof. It is manifest, therefore, that, upon the face of the insurance contract, the three defendants had the legal right to the proceeds of the ‘ ‘ death loss. ’ ’ They and they only could have maintained an action therefor against the insurance company. If there be facts aliunde which would equitably impress a trust, nevertheless, upon these proceeds in the hands of these defendants, it was incumbent upon the plaintiff to plead and to prove such facts. Nothing of that kind was attempted by her. The manifest objective of her petition was to obtain an adjudication that the contract under attack was ineffective to bar her right of distributive share. The emphasis of the litigation was concen *124 trated upon that proposition. We have sustained the contention of the plaintiff in that regard. But even so, such contract has no effect whatever upon the question of the defendants’ right to the insurance proceeds. They do not take such proceeds under and by virtue of the contract under attack; neither are they forbidden to take the same thereby. They take such proceeds under and by virtue of the insurance contract, and of that alone. •Their right thereto is neither greater nor less by reason of the contract of alleged joint tenancy.
We reach 'the conclusion, therefore, that the item of “life insurance ’ ’ proceeds should be eliminated from plaintiff’s recovery, and that the decree entered below should be modified to that extent. In all other respects, the petition for rehearing is overruled.
II. The appellants urge upon us very earnestly that the effect of our holding here is to overrule prior decisions, and therefore to deprive appellants of their property without due process of law, in alleged violation of the Constitution of the United States. The premise upon which such plea of unconstitutionality is based, is negatived by the opinion complained of. It does not purport to overrule prior decisions. Appellants’ contention to such effect is argumentative only, and is not sustained ■by us. Moreover, if the premise were conceded, and if it were deemed correct to say that the overruling of a prior decision by an appellate court of a state is a violation of the Constitution of the United States, such point would have been just as available to the appellants in their original argument as in their petition for rehearing. No such point was therein made.
We are asked to recognize the point now made, as presenting a Federal question. If we could properly do so, as a matter of sincere deference to the higher court, or as a matter of courtesy to the distinguished counsel, we should not be reluctant to make such declaration as would enable a review of our decision by the higher court. But judicial candor compels us to say that we see no Federal question involved. The decree below will be modified as above indicated, and otherwise affirmed.