LAND, J.
Otto Sizeler married his niece, Miss Annie Eels, in Providence, R. I., on October 14,1913, under a statute of that state which permits a marriage among the Jews, within the degrees of affinity or consanguinity allowed by their religion. Chapter 243, General Laws of Rhode Island, 1909, §§ 1-4, and 9.
The contracting parties were of the orthodox Jewish faith. They were married in the city of Providence by Rabbi Bachraeh, as under the Rabbinical law the marriage of uncle and niece is sanctioned. See testimony of Rabbi Mendel Silber, T. 135.'
Otto Sizeler and his wife were residents of the city of New Orleans at the time of their marriage. They returned to that city after their marriage, and resided there until the death of Otto Sizeler, March 26, 1928.
■ The estate of decedent is insolvent. He left two policies of life insurance of $5,000 each, in which “Annie P. Sizeler, wife of insured” is named as beneficiary.
The plaintiffs, the three sons of Otto Sizeler by his first marriage, have instituted the present suit to enjoin the insurance company from paying, and the defendant, Mrs. Annie Pels Sizeler, from receiving payment of the amount of the policies in question.
The grounds for the injunction are: That the marriage in Providence, R. I. of Otto Sizeler to Miss Annie Pels, his niece, was in violation of a law of the state of Louisiana prohibiting marriage ’ between uncle and niece; that the marriage was contracted to evade the laws of this state and was in bad faith; and that the marriage is null and void and without legal effect, since the contracting parties were residents of the state at the time of their marriage, and returned to the state to reside shortly thereafter. R. O. O.-arts. 91, 95, 113.
It is therefore alleged by plaintiffs that defendant was the mere concubine of Otto Sizeler, and, as such, was incapable of receiving the entire insurance of $10,000, for the reason that
the policies of life insurance were donations mortis causa,
and were made in violation of article 1481 of the Civil Code, which declares that those who have, lived in open concubinage are ineapable of making donations to each other of immovables, and that donations of movables are limited to one-tenth of the value of their estates.
Under our view of the case, we do not find it necessary to pass upon the validity of the marriage contracted between Otto Sizeler and his niece in the state of Rhode Island, nor to determine whether the same was entered into in good faith by either of the contracting parties.
We have arrived at this conclusion for the reason that the rules of our Civil Code relating to donations inter vivos and mortis causa have no application to life insurance policies, and there is no law of this state that prohibits any person from insuring his life in favor of any beneficiary that he may select.
In the case of Mary Ticker v. Metropolitan Life Insurance Co., 11 Orleans App. 55 (1914), Mr. Justice St Paul, then a judge of the Court of Appeals for the parish of Orleans, in reviewing our jurisprudence on the subject, said in part:
“As we appreciate the jurisprudence of this State, a life insurance policy is a contract sui generis,
governed by rules peculiar to itself,
the outgrowth of judicial precedent and not of legislation.
“For although' it is quite certain that such a contract, .when wholly gratuitous as to the beneficiary, can be assimilated only to a donation either inter vivos or mortis causa (C. C. 1773, 1467),
yet the Supreme Court of the State has uniformly refused to apply to life insurance policies the rules applicable to donations,
with the single exception to be found in Ins. Co. v. Neal, 114 La. 652, 38 So. 485. (Italics ours.)
“Thus the Court has repeatedly refused to apply to such policies the provisions of the Civil Code relative to donations inter vivos,
to-wit, that they are revocable w!hen made to one’s husband or wife, and subject to collation when made to one’s children or descendants. C. C. 1749, 1228 ; Pilcher v. Ins. Co., 33 La. Ann. 322 ; Putnam v. Ins. Co., 42 La. Ann. 739, 7 So. 602 ; Lambert v. Ins. Co., 50 La. Ann. 1027, 24 So. 16 ; Vinson v. Vinson, 105 La. 31, 29 So. 701 ; Succ. of Roder, 121 La. 694, 46 So. 697, 15 Ann. Cas. 526.
“And a fortiori the Court has refused to apply to such policies the fundamental principle applicable to donations mortis causa, to-wit, that such donations are without avail until after payment of the debts of the deceased ; the court holding in every instance
that the proceeds of such policies form no part of the estate of the deceased., and inure to the beneficiary directly and by the sole terms of the policy itself.
(See the authorities above quoted; also Succ. Kugler, 23 La. Ann. 455 ; Succ. of Hearing, 26 La. Ann. 326 ; Succ. of Clark, 27 La. Ann. 269 ; Succ. of Bofenschen, 29 La. Ann. 714 ; Tutorship of Crane, 47 La. Ann. 896, 17 So. 431 ; Succ. of Emonot, 109 La. 359, 33 So. 368).’’
As the proceeds of life insurance policies form no part of the estate of the deceased, and inure to the beneficiary
“directly and by the sole terms of the policy itself,"
the right of the defendant to the avails of the policies in this case does not arise from legal coverture, nor from the civil effects of marriage contracted in good faith, but solely from the terms of the policies in which she has been named the beneficiary by the decedent. Whether the marriage of defendant to Otto Sizeler was valid or invalid has nothing to do with the case, and whether such marriage produced civil effects or not, as the result of the good faith of defendant in contracting it, is also beside the question.
Since the estate of the de cujus was insolvent, and as the proceeds of the policies in this case formed no part of his estate, it is difficult to conceive that there was anything in his succession to be disposed of by donation mortis causa unless, perchance, donations of this character may spring from such stuff as dreams are made of. As said in the Succession of Hearing, 26 La. Ann. 326: “A policy of insurance
is not a piece of property;
it is the evidence of a contract, the contract being that a certain sum of money will be paid upon the happening of a certain event, ■to a particular person, who is named in the policy, or who may be the legal holder thereof.”
In New York Life Insurance Co. v. Neal, 114 La. 652, 38 So. 485, the Supreme Court of Louisiana applied for the first time to a life insurance policy the provisions of our Civil Code relative to donations, which limit a donation in favor of a concubine to one-tenth of the donor’s estate. C. C., art. 1481. As this case cannot be reconciled with the long line of decisions which preceded and followed it, all holding that the policy or its proceeds never formed any part of the estate of the deceased, the decision in the Neal Case is clearly in conflict, with the settled jurisprudence of the state and is overruled.
Indeed, the writer of the opinion in the Neal Case, in the earlier case of Vinson v. Vinson, 105 La. 31, 29 So. 701, 702, held contrary to the doctrine laid down in the Neal Case. In the Vinson Case, decedent left
five
forced heirs.
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LAND, J.
Otto Sizeler married his niece, Miss Annie Eels, in Providence, R. I., on October 14,1913, under a statute of that state which permits a marriage among the Jews, within the degrees of affinity or consanguinity allowed by their religion. Chapter 243, General Laws of Rhode Island, 1909, §§ 1-4, and 9.
The contracting parties were of the orthodox Jewish faith. They were married in the city of Providence by Rabbi Bachraeh, as under the Rabbinical law the marriage of uncle and niece is sanctioned. See testimony of Rabbi Mendel Silber, T. 135.'
Otto Sizeler and his wife were residents of the city of New Orleans at the time of their marriage. They returned to that city after their marriage, and resided there until the death of Otto Sizeler, March 26, 1928.
■ The estate of decedent is insolvent. He left two policies of life insurance of $5,000 each, in which “Annie P. Sizeler, wife of insured” is named as beneficiary.
The plaintiffs, the three sons of Otto Sizeler by his first marriage, have instituted the present suit to enjoin the insurance company from paying, and the defendant, Mrs. Annie Pels Sizeler, from receiving payment of the amount of the policies in question.
The grounds for the injunction are: That the marriage in Providence, R. I. of Otto Sizeler to Miss Annie Pels, his niece, was in violation of a law of the state of Louisiana prohibiting marriage ’ between uncle and niece; that the marriage was contracted to evade the laws of this state and was in bad faith; and that the marriage is null and void and without legal effect, since the contracting parties were residents of the state at the time of their marriage, and returned to the state to reside shortly thereafter. R. O. O.-arts. 91, 95, 113.
It is therefore alleged by plaintiffs that defendant was the mere concubine of Otto Sizeler, and, as such, was incapable of receiving the entire insurance of $10,000, for the reason that
the policies of life insurance were donations mortis causa,
and were made in violation of article 1481 of the Civil Code, which declares that those who have, lived in open concubinage are ineapable of making donations to each other of immovables, and that donations of movables are limited to one-tenth of the value of their estates.
Under our view of the case, we do not find it necessary to pass upon the validity of the marriage contracted between Otto Sizeler and his niece in the state of Rhode Island, nor to determine whether the same was entered into in good faith by either of the contracting parties.
We have arrived at this conclusion for the reason that the rules of our Civil Code relating to donations inter vivos and mortis causa have no application to life insurance policies, and there is no law of this state that prohibits any person from insuring his life in favor of any beneficiary that he may select.
In the case of Mary Ticker v. Metropolitan Life Insurance Co., 11 Orleans App. 55 (1914), Mr. Justice St Paul, then a judge of the Court of Appeals for the parish of Orleans, in reviewing our jurisprudence on the subject, said in part:
“As we appreciate the jurisprudence of this State, a life insurance policy is a contract sui generis,
governed by rules peculiar to itself,
the outgrowth of judicial precedent and not of legislation.
“For although' it is quite certain that such a contract, .when wholly gratuitous as to the beneficiary, can be assimilated only to a donation either inter vivos or mortis causa (C. C. 1773, 1467),
yet the Supreme Court of the State has uniformly refused to apply to life insurance policies the rules applicable to donations,
with the single exception to be found in Ins. Co. v. Neal, 114 La. 652, 38 So. 485. (Italics ours.)
“Thus the Court has repeatedly refused to apply to such policies the provisions of the Civil Code relative to donations inter vivos,
to-wit, that they are revocable w!hen made to one’s husband or wife, and subject to collation when made to one’s children or descendants. C. C. 1749, 1228 ; Pilcher v. Ins. Co., 33 La. Ann. 322 ; Putnam v. Ins. Co., 42 La. Ann. 739, 7 So. 602 ; Lambert v. Ins. Co., 50 La. Ann. 1027, 24 So. 16 ; Vinson v. Vinson, 105 La. 31, 29 So. 701 ; Succ. of Roder, 121 La. 694, 46 So. 697, 15 Ann. Cas. 526.
“And a fortiori the Court has refused to apply to such policies the fundamental principle applicable to donations mortis causa, to-wit, that such donations are without avail until after payment of the debts of the deceased ; the court holding in every instance
that the proceeds of such policies form no part of the estate of the deceased., and inure to the beneficiary directly and by the sole terms of the policy itself.
(See the authorities above quoted; also Succ. Kugler, 23 La. Ann. 455 ; Succ. of Hearing, 26 La. Ann. 326 ; Succ. of Clark, 27 La. Ann. 269 ; Succ. of Bofenschen, 29 La. Ann. 714 ; Tutorship of Crane, 47 La. Ann. 896, 17 So. 431 ; Succ. of Emonot, 109 La. 359, 33 So. 368).’’
As the proceeds of life insurance policies form no part of the estate of the deceased, and inure to the beneficiary
“directly and by the sole terms of the policy itself,"
the right of the defendant to the avails of the policies in this case does not arise from legal coverture, nor from the civil effects of marriage contracted in good faith, but solely from the terms of the policies in which she has been named the beneficiary by the decedent. Whether the marriage of defendant to Otto Sizeler was valid or invalid has nothing to do with the case, and whether such marriage produced civil effects or not, as the result of the good faith of defendant in contracting it, is also beside the question.
Since the estate of the de cujus was insolvent, and as the proceeds of the policies in this case formed no part of his estate, it is difficult to conceive that there was anything in his succession to be disposed of by donation mortis causa unless, perchance, donations of this character may spring from such stuff as dreams are made of. As said in the Succession of Hearing, 26 La. Ann. 326: “A policy of insurance
is not a piece of property;
it is the evidence of a contract, the contract being that a certain sum of money will be paid upon the happening of a certain event, ■to a particular person, who is named in the policy, or who may be the legal holder thereof.”
In New York Life Insurance Co. v. Neal, 114 La. 652, 38 So. 485, the Supreme Court of Louisiana applied for the first time to a life insurance policy the provisions of our Civil Code relative to donations, which limit a donation in favor of a concubine to one-tenth of the donor’s estate. C. C., art. 1481. As this case cannot be reconciled with the long line of decisions which preceded and followed it, all holding that the policy or its proceeds never formed any part of the estate of the deceased, the decision in the Neal Case is clearly in conflict, with the settled jurisprudence of the state and is overruled.
Indeed, the writer of the opinion in the Neal Case, in the earlier case of Vinson v. Vinson, 105 La. 31, 29 So. 701, 702, held contrary to the doctrine laid down in the Neal Case. In the Vinson Case, decedent left
five
forced heirs. He also left a life insurance policy for $3,000, payable to only
four
of these children. The fifth child, through its tutrix, demanded that the other children be compelled to collate the proceeds of the policy. The writer.of the opinion in the Neal Case, as the organ of the court in the Vinson Case, said:
“Plaintiff invokes the laws regarding collation aá'áiSording ground to compel the benefi
claries to account to plaintiff for an heir’s portion. Turning to the articles of the Revised Civil Code, we find that they set forth collation as being the supposed or real return to the mass of the succession which the heir is required to make of property which he has received beforehand on his share, in order that it may be divided with the other effects of the succession.
This implies a right in the estate to collation of property owned by the de cujus. It arises from the fact that it is considered as having passed * * * to the heir. Here there is nothing of the sort.
* * *
There was no gift of any hind made and no benefit conferred by the policy of insurance, which, under our jurisprudence, can be considered as a gift or benefit subject to demand for return by the co-heir not named in the policy, and who was not bom at the time it was issued.”
(Italics ours.)
We do not find it legally possible to hold that a life insurance policy in which a concubine is named the beneficiary is
a donation mortis causa,
and is subject to the rules in our Civil Code applicable to such donations, but that this is not the rule as to any other beneficiary designated in such policies. In the absence of express legislation on the subject, we have no judicial authority or power to draw a distinction between the classes of beneficiaries named in life insurance policies.
Judgment in the lower court was rendered in favor of plaintiffs, declaring the marriage between Otto Sizeler and Miss Annie Eels null and void and contracted in bad faith, and decreeing defendant incapable of receiving the proceeds of the policies, except to the amount of one-tenth part thereof.
The judgment further decreed the payment to plaintiffs of nine-tenths of the proceeds of the policies.
Eor the reasons assigned, it' is ordered that the judgment appealed from be annulled and reversed.
It is now ordered that the- demands of plaintiffs be rejected, and that this suit be dismissed at plaintiffs’ costs, ■ •
ST. PAUL, J., dissents.