REYNOLDS, P. J.
(after stating the facts).— There have been a number of cases on like policies before this court, this class of insurance being what is commonly called “industrial life insurance.” As was said by this court in the case of Wilkinson v. Life Ins. Co., 63 Mo. App. 404, and referring to this same company defendant, that while the case involves a small amount, upon its decision depended the interpretation to be placed upon the most important clause in the policies issued by what are known as industrial insurance companies. In the Wilkinson case this court held that the clause above referred to, known as the “facility” clause, was valid; and that it did not authorize or compel the payment by the company to one of the persons enumerated, after another such person, who owned the [267]*267policy, had surrendered it to the company in order to receive the payment. This was again affirmed in a suit between the same parties, reported 64 Mo. App. 172.
It will be noticed that in the case at. bar the designation of the party to whom the amount due under the policy^ is to be paid in the event of the death of the insured before the endowment period has matured, is “Estate.” That is, no particular person is designated, the word “estate” alone being used. Over the objection of the defendant the plaintiff offered evidence, which was admitted by the court subject to the exception, to the effect that at the time when the policy was issued it was understood between his mother and the agent of the company, that he, the only child, was the person meant by “Estate.” At the time when the plaintiff claims to have heard this conversation, he was but fourteen years old and was twenty when he testified. The learned counsel for defendant contend with great force that it is very improbable that a young boy of fourteen would have remembered this one fact. We are not the court to pass on that one way or the other. The credibility of the witness was for the learned trial court. Nor can we say what view he took of it. The objection made to this evidence when offered is that it was incompetent, as an attempt to vary the policy. This was the only objection made to it at the time it was offered. The learned trial judge did not finally pass on this objection, but it was not tenable. This testimony had no tendency to vary or contradict the policy but was the explanation, by extrinsic evidence, of what took place at the time of the delivery of the policy, of an ambiguous term, that is to say, the term “estate,” found in the policy itself. We make no contention, of course, over the propositions that contracts are not to be varied by parol testimony as to what was intended by the parties before their execution, but that is not this case. In an old case, that of Loos’ Guard v. John Hancock Mut. Life Ins. Co., 41 Mo. 538, Judge Wagner, who delivered the opinion of the court [268]*268and construing the term “to his heirs or representatives,” to whom the policy there before the court was payable, says (1. c. 541); that while the term “representatives,” in general and in a professional or technical sense simply means executor or administrators, they are often construed differently, “if it is clear that the .intention was to vest the estate in a different class of persons. That they mean executors and administrators will ordinarily be taken as true, where nothing is shown to raise a counter presumption, but the meaning is not so inflexibly attached so as to prevail in all cases when it is manifest that another disposition was intended. The intention must control, and that intention is to be gathered by a view of the context subject-matter and the purpose to be attained. The words have therefore been held to mean next of kin when the circumstances of the case made it apparent that such a construction would effectuate the object had in view. The language used by the assured would seem to indicate that it was his intention, in case of his untimely decease, to make some provision for the surviving members of his family, and not that the money arising from the policy should go to his executors or administrators, to he administered on as ordinary assets.”
1 Bacon in his works on Benefit Societies and Life Insurance (3 Ed.), sec. 263, states the law to be that if the name of the person for whose benefit the insurance is obtained does not appear upon the face of the certificate or policy or if the designations used are applicable to several persons or if the description of the insured is imperfect or ambiguous, so that it cannot be understood without explanation, extrinsic evidence may be resorted to to ascertain the meaning of the contract, and referring to the case of Clinton v. The Hope Ins. Co., 45 N. Y. 454, 1. c. 461, he states it as the law, that where the agent was told that tfie insurance wag designed for the benefit of the widow and heirs and policy was made “payable to the estate,” it. is held that [269]*269the rule above given had direct application, as it is not essential that the person or persons insured should be named in the policy nor is that essential in the contract of insurance.
In the case of Pace v. Pace, 19 Fla. 438, the policy was written as “for the benefit of the estate of the insured,” and it was held that under the circumstances of the case, and aided by extrinsic evidence, as in the case at bar, the terms referred to meant for the benefit of an only minor child, who was less than five years of age at the time of the contract and that it did not go to the administrator or distributees of the estate. The Florida court cites in support of its position the case of Loos’ Guard. v. John Hancock Ins. Co., supra, the case of Clinton v. Ins. Co., supra, and also Globe Ins. Co. v. Boyle, 21 Ohio St. 119, all holding that the words are to be so interpreted as to be for the benefit of the surviving members of a family rather than for the benefit of the creditor or administrator, and that in the instance before the court, the beneficiary intended was the infant child. Mr. Beacon cites a number of cases to the same effect, that is to say that the term “estate” included or designated as the beneficiary, not the administrator or executor, but a child or other one.
2 Joyce on Insurance (Ed. 1897), sec. 776, is to the same effect. There Mr. Joyce states that a question arises where the proceeds of a benefit certificate are payable to the “estate” of the insured, whether the fund shall be subject to the claims of creditors; and he states that in the consideration of this point, the laws of the society, where it is a benefit certificate, the whole statute, contract, the constitution, etc., the terms of the certificate, and the intentions of the parties, must be considered. In the brief of the learned counsel for the respondent in this case,2 Joyce on Insurance. (Ed. 1897), sec. 776, is referred to in support of the proposition that when the term “estate” is used in these policies, such policies become an asset of the personal estate [270]*270of the insured and payable to the executor or administrator and to no one else, and in their printed argument they state, “The fundamental rule is thus laid down by 2 Joyce on Insurance (Ed. 1897), sec. 776, as follows,” and counsel then put under quotation marks to this: “Where the beneficiary named in the policy of life insurance is ‘the estate,’ such policy becomes an asset of the estate, and is payable to the executor or administrator of the insured.” A very careful reading of the section from Joyce referred to, not only fails to show any such language in it, but, as we have seen, the text of the Section referred to, in the edition referred to, directly holds to the contrary.
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REYNOLDS, P. J.
(after stating the facts).— There have been a number of cases on like policies before this court, this class of insurance being what is commonly called “industrial life insurance.” As was said by this court in the case of Wilkinson v. Life Ins. Co., 63 Mo. App. 404, and referring to this same company defendant, that while the case involves a small amount, upon its decision depended the interpretation to be placed upon the most important clause in the policies issued by what are known as industrial insurance companies. In the Wilkinson case this court held that the clause above referred to, known as the “facility” clause, was valid; and that it did not authorize or compel the payment by the company to one of the persons enumerated, after another such person, who owned the [267]*267policy, had surrendered it to the company in order to receive the payment. This was again affirmed in a suit between the same parties, reported 64 Mo. App. 172.
It will be noticed that in the case at. bar the designation of the party to whom the amount due under the policy^ is to be paid in the event of the death of the insured before the endowment period has matured, is “Estate.” That is, no particular person is designated, the word “estate” alone being used. Over the objection of the defendant the plaintiff offered evidence, which was admitted by the court subject to the exception, to the effect that at the time when the policy was issued it was understood between his mother and the agent of the company, that he, the only child, was the person meant by “Estate.” At the time when the plaintiff claims to have heard this conversation, he was but fourteen years old and was twenty when he testified. The learned counsel for defendant contend with great force that it is very improbable that a young boy of fourteen would have remembered this one fact. We are not the court to pass on that one way or the other. The credibility of the witness was for the learned trial court. Nor can we say what view he took of it. The objection made to this evidence when offered is that it was incompetent, as an attempt to vary the policy. This was the only objection made to it at the time it was offered. The learned trial judge did not finally pass on this objection, but it was not tenable. This testimony had no tendency to vary or contradict the policy but was the explanation, by extrinsic evidence, of what took place at the time of the delivery of the policy, of an ambiguous term, that is to say, the term “estate,” found in the policy itself. We make no contention, of course, over the propositions that contracts are not to be varied by parol testimony as to what was intended by the parties before their execution, but that is not this case. In an old case, that of Loos’ Guard v. John Hancock Mut. Life Ins. Co., 41 Mo. 538, Judge Wagner, who delivered the opinion of the court [268]*268and construing the term “to his heirs or representatives,” to whom the policy there before the court was payable, says (1. c. 541); that while the term “representatives,” in general and in a professional or technical sense simply means executor or administrators, they are often construed differently, “if it is clear that the .intention was to vest the estate in a different class of persons. That they mean executors and administrators will ordinarily be taken as true, where nothing is shown to raise a counter presumption, but the meaning is not so inflexibly attached so as to prevail in all cases when it is manifest that another disposition was intended. The intention must control, and that intention is to be gathered by a view of the context subject-matter and the purpose to be attained. The words have therefore been held to mean next of kin when the circumstances of the case made it apparent that such a construction would effectuate the object had in view. The language used by the assured would seem to indicate that it was his intention, in case of his untimely decease, to make some provision for the surviving members of his family, and not that the money arising from the policy should go to his executors or administrators, to he administered on as ordinary assets.”
1 Bacon in his works on Benefit Societies and Life Insurance (3 Ed.), sec. 263, states the law to be that if the name of the person for whose benefit the insurance is obtained does not appear upon the face of the certificate or policy or if the designations used are applicable to several persons or if the description of the insured is imperfect or ambiguous, so that it cannot be understood without explanation, extrinsic evidence may be resorted to to ascertain the meaning of the contract, and referring to the case of Clinton v. The Hope Ins. Co., 45 N. Y. 454, 1. c. 461, he states it as the law, that where the agent was told that tfie insurance wag designed for the benefit of the widow and heirs and policy was made “payable to the estate,” it. is held that [269]*269the rule above given had direct application, as it is not essential that the person or persons insured should be named in the policy nor is that essential in the contract of insurance.
In the case of Pace v. Pace, 19 Fla. 438, the policy was written as “for the benefit of the estate of the insured,” and it was held that under the circumstances of the case, and aided by extrinsic evidence, as in the case at bar, the terms referred to meant for the benefit of an only minor child, who was less than five years of age at the time of the contract and that it did not go to the administrator or distributees of the estate. The Florida court cites in support of its position the case of Loos’ Guard. v. John Hancock Ins. Co., supra, the case of Clinton v. Ins. Co., supra, and also Globe Ins. Co. v. Boyle, 21 Ohio St. 119, all holding that the words are to be so interpreted as to be for the benefit of the surviving members of a family rather than for the benefit of the creditor or administrator, and that in the instance before the court, the beneficiary intended was the infant child. Mr. Beacon cites a number of cases to the same effect, that is to say that the term “estate” included or designated as the beneficiary, not the administrator or executor, but a child or other one.
2 Joyce on Insurance (Ed. 1897), sec. 776, is to the same effect. There Mr. Joyce states that a question arises where the proceeds of a benefit certificate are payable to the “estate” of the insured, whether the fund shall be subject to the claims of creditors; and he states that in the consideration of this point, the laws of the society, where it is a benefit certificate, the whole statute, contract, the constitution, etc., the terms of the certificate, and the intentions of the parties, must be considered. In the brief of the learned counsel for the respondent in this case,2 Joyce on Insurance. (Ed. 1897), sec. 776, is referred to in support of the proposition that when the term “estate” is used in these policies, such policies become an asset of the personal estate [270]*270of the insured and payable to the executor or administrator and to no one else, and in their printed argument they state, “The fundamental rule is thus laid down by 2 Joyce on Insurance (Ed. 1897), sec. 776, as follows,” and counsel then put under quotation marks to this: “Where the beneficiary named in the policy of life insurance is ‘the estate,’ such policy becomes an asset of the estate, and is payable to the executor or administrator of the insured.” A very careful reading of the section from Joyce referred to, not only fails to show any such language in it, but, as we have seen, the text of the Section referred to, in the edition referred to, directly holds to the contrary. We think it obvious from this class of contracts, and they have been, as before said, many times before our courts, and on consideration of the fact that the provision is for the immediate happenings upon the death of the insured, and of the small amount provided for, that it cannot be said, with any propriety or with any proper consideration of this form of insurance, that they are intended to provide a fund for the benefit of creditors, unless that is distinctly set out in the policy itself, as has been done in several cases where a special provision, by pledge or otherwise has been made for a creditor. In general to place a policy of this small amount and apparently consisting of the whole estate left by the decedent into the hands of an appointed administrator would be to tie up the whole fund, obviously intended to meet burial and other immediate expenses attendant upon death, to pervert it from its real object and to cause it to be eaten into seriously by court expenses, and administrative and other allowances of various kinds. We consider these industrial policies highly benevolent, and that they are to be so treated. Looking into the facts in this case and considering, under the adjudications of the courts on these matters, that payment to this plaintiff absolves the defendant from any payment to any other possible claimant, we think that the judgment of the learned trial [271]*271judge should have been for the plaintiff. We decline to impose the statutory damage of ten per cent, under section 8012, R. S. 1899, as the question involved here has never been directly before our court. Respondent had a clear right to take the judgment of the court thereon and its refusal to pay appellant was not vexatious within the meaning of the statute.
The judgment in the case is accordingly reversed and the cause remanded with directions to the trial court to enter up judgment in favor of the appellant. If the real plaintiff, the son of the insured, is now of age, as is suggested, the next friend may be dismissed from the case, in the discretion of the trial court, and judgment be entered by it directly in favor of Samuel S. Renfro for the amount due, as shown by the stipulation or agreement of counsel, with interest thereon from the date of the suit at the rate of six per cent per annum.
All concur.