Opinion of the Court by
Chief Justice O’Rear
Affirming.
R. P. Townsend on February 4, 1885, took out a policy of insurance upon his life for $10,000. It was a 10-payment life policy, by which, in consideration of the annual payment in advance by the insured, R. P. Townsend, of $619.20 to the insurer, the Connecticut Mutual Life Insurance Company of Hartford, Conn., the latter undertook to pay to the beneficiaries named in the policy, upon the death of the insured, the sum of $10,000. The agreement was to pay the sum insured “to Emma.S. Townsend (the assured), wife of the said insured, for her sole use and benefit, or to her legal representatives? thirty days after due notice and satisfactory evidence of the death of the insured while this contract is in full force and effect; * * * if the said assured die before said insured, the said sum insured above shall be paid to his children, or to the then guardian if under age; or, if there be no such children or descendants of such children then living, the said sum insured [234]*234shall be payable to the legal representatives of said insured.” There was also this provision in the policy contract: “And at the end of ten years from the date thereof, or at the end of each period of five years thereafter, this policy having been in force during such entire periods for the full sum first above named as insured hereby and not otherwise, this company will pay a cash value therefor, to be ascertained by the table of cash values endorsed hereon and hereby made a part of this contract; such cash value to be payable at its said office upon surrender hereof within thirty days after the end of each such period, to, and this policy to be first released and discharged to the satisfaction of said company by Robert P. Townsend. And it is hereby agreed by all the parties hereto that such surrender, release and discharge shall terminate this policy, and any and every obligation whatsoever of said company thereunder, to any and every person whatsoever.” There was also this condition in the policy: “(6) That no assignment of this policy shall be valid, but the company shall have the power at any time, but at its own discretion, 'to accept a surrender and discharge of the same by the assured and the person nominated therein as payee of the cash value at stipulated periods.'”
Some time after the insurance was affected, the assured, Emma S. Townsend, died, leaving one child, who is not living, a- daughter of R. P. Townsend. Subsequently R. P. Townsend married again, and by the second marriage- had issue, one daughter, living. His second wife is yet alive. The insured paid all of the premiums due upon the policy, and it is now fully paid up. On June 5, 1899, the insured, being indebted to the First National Bank of Nashville, [235]*235Term., in about $2,600, executed to it the following paper, evidently to secure the indebtedness: “Whereas, I, the undersigned, Robert P. Townsend, of Adairville, Kentucky, hold a policy of $10,000 in the Connecticut Mutual Life Insurance Company of Hartford, Connecticut, No. 173,188, issued February 4, 1885, which is now a paid-up policy, and which policy I have this day delivered to the First National Bank of Nashville, Tennessee. And whereas, said policy contains the following provision, to-wit: ‘And at the end of ten years from the date hereof, or at the end of each period of five years thereafter, this policy having been in force during such entire periods for the full sum first above named as insured hereby and not otherwise, this company will pay a cash value thereof, to be ascertained by the table of cash values endorsed hereon and hereby made a part of this contract; such cash value to be payable at its said office upon surrender hereof within thirty days after the end of such period, to, and this policy to be first released and discharged to the satisfaction of said company by Robert P. Townsend, the insured. And whereas, I desire that the First National Bank of Nashville, Tennessee, be appointed, and constituted my attorney in fact to collect the cash value of said policy, as provided for in the above quoted clause: Now, therefore, I, Robert P. Townsend, aforesaid, do nominate and appoint the First National Bank of Nashville, Tennessee, my attorney in fact to demand and receive of and from said Connecticut Mutual Life Insurance Company of Hartford, Connecticut, any and all amounts which may be due me on said policy. Said bank is authorized to execute all receipts and other acquittances in my name to* said insurance company, and in case of its failure to pay, said bánk [236]*236will bring suit against it and prosecute same in my name. Said bank is also authorized to employ counsel or agents at my expense and to do all things which may be necessary in and about the collection of said policy. However, said haul?; has authority to permit said policy to remain in force until my death or to collect the cash value thereof at any one of the periods provided for in said policy; it being my intention to leave this question to the discretion of said bank. I do hereby ratify and confirm all the lawful acts and doings of said bank in pursuance of the power and authority hereby communicated, as fully as if I were to do them myself. This June 5th, 1899. (Signed) R. P. Townsend.”
On June 24, 1903, the insured, having become largely indebted, executed a deed of general assignment for the benefit of his creditors. Appellant is the assignee.
On January 2, 1905, appellant filed an amended petition in the action which he had brought to settle the assigned estate, seeking to have the cash surrender value of the insurance policy paid over to him for the benefit of all the creditors of the insured, upon the theory that the insured’s interest in the policy had passed to his assignee under the deed. It was alleged that the policy at that time had a cash surrender value of $6,240; that the insured had the right under its terms to surrender it and receive that sum from the insurer; that his right was a right of property, which passed under the deed of assignment; and that appellant as assignee could exercise the option or privilege given by the policy, which he attempted in this manner to do. The insurance company, the Nashville Bank, the insured, and his two children were made defendants to this ancillary [237]*237action. Waiving certain matters of practice, we will take np the main question presented, which is: Did the policy of insurance, or E. P. Townsend’s interest in it, pass under the deed of assignment for the benefit of creditors; and could the assignee exercise the privilege given by the policy to the insured, of surrendering it in accordance with its terms, and take its then cash surrender value in discharge of all the company’s liability on it?
The estate of the assignor embraced by the general deed of assignment is regulated by section 75, Ky. St.
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Opinion of the Court by
Chief Justice O’Rear
Affirming.
R. P. Townsend on February 4, 1885, took out a policy of insurance upon his life for $10,000. It was a 10-payment life policy, by which, in consideration of the annual payment in advance by the insured, R. P. Townsend, of $619.20 to the insurer, the Connecticut Mutual Life Insurance Company of Hartford, Conn., the latter undertook to pay to the beneficiaries named in the policy, upon the death of the insured, the sum of $10,000. The agreement was to pay the sum insured “to Emma.S. Townsend (the assured), wife of the said insured, for her sole use and benefit, or to her legal representatives? thirty days after due notice and satisfactory evidence of the death of the insured while this contract is in full force and effect; * * * if the said assured die before said insured, the said sum insured above shall be paid to his children, or to the then guardian if under age; or, if there be no such children or descendants of such children then living, the said sum insured [234]*234shall be payable to the legal representatives of said insured.” There was also this provision in the policy contract: “And at the end of ten years from the date thereof, or at the end of each period of five years thereafter, this policy having been in force during such entire periods for the full sum first above named as insured hereby and not otherwise, this company will pay a cash value therefor, to be ascertained by the table of cash values endorsed hereon and hereby made a part of this contract; such cash value to be payable at its said office upon surrender hereof within thirty days after the end of each such period, to, and this policy to be first released and discharged to the satisfaction of said company by Robert P. Townsend. And it is hereby agreed by all the parties hereto that such surrender, release and discharge shall terminate this policy, and any and every obligation whatsoever of said company thereunder, to any and every person whatsoever.” There was also this condition in the policy: “(6) That no assignment of this policy shall be valid, but the company shall have the power at any time, but at its own discretion, 'to accept a surrender and discharge of the same by the assured and the person nominated therein as payee of the cash value at stipulated periods.'”
Some time after the insurance was affected, the assured, Emma S. Townsend, died, leaving one child, who is not living, a- daughter of R. P. Townsend. Subsequently R. P. Townsend married again, and by the second marriage- had issue, one daughter, living. His second wife is yet alive. The insured paid all of the premiums due upon the policy, and it is now fully paid up. On June 5, 1899, the insured, being indebted to the First National Bank of Nashville, [235]*235Term., in about $2,600, executed to it the following paper, evidently to secure the indebtedness: “Whereas, I, the undersigned, Robert P. Townsend, of Adairville, Kentucky, hold a policy of $10,000 in the Connecticut Mutual Life Insurance Company of Hartford, Connecticut, No. 173,188, issued February 4, 1885, which is now a paid-up policy, and which policy I have this day delivered to the First National Bank of Nashville, Tennessee. And whereas, said policy contains the following provision, to-wit: ‘And at the end of ten years from the date hereof, or at the end of each period of five years thereafter, this policy having been in force during such entire periods for the full sum first above named as insured hereby and not otherwise, this company will pay a cash value thereof, to be ascertained by the table of cash values endorsed hereon and hereby made a part of this contract; such cash value to be payable at its said office upon surrender hereof within thirty days after the end of such period, to, and this policy to be first released and discharged to the satisfaction of said company by Robert P. Townsend, the insured. And whereas, I desire that the First National Bank of Nashville, Tennessee, be appointed, and constituted my attorney in fact to collect the cash value of said policy, as provided for in the above quoted clause: Now, therefore, I, Robert P. Townsend, aforesaid, do nominate and appoint the First National Bank of Nashville, Tennessee, my attorney in fact to demand and receive of and from said Connecticut Mutual Life Insurance Company of Hartford, Connecticut, any and all amounts which may be due me on said policy. Said bank is authorized to execute all receipts and other acquittances in my name to* said insurance company, and in case of its failure to pay, said bánk [236]*236will bring suit against it and prosecute same in my name. Said bank is also authorized to employ counsel or agents at my expense and to do all things which may be necessary in and about the collection of said policy. However, said haul?; has authority to permit said policy to remain in force until my death or to collect the cash value thereof at any one of the periods provided for in said policy; it being my intention to leave this question to the discretion of said bank. I do hereby ratify and confirm all the lawful acts and doings of said bank in pursuance of the power and authority hereby communicated, as fully as if I were to do them myself. This June 5th, 1899. (Signed) R. P. Townsend.”
On June 24, 1903, the insured, having become largely indebted, executed a deed of general assignment for the benefit of his creditors. Appellant is the assignee.
On January 2, 1905, appellant filed an amended petition in the action which he had brought to settle the assigned estate, seeking to have the cash surrender value of the insurance policy paid over to him for the benefit of all the creditors of the insured, upon the theory that the insured’s interest in the policy had passed to his assignee under the deed. It was alleged that the policy at that time had a cash surrender value of $6,240; that the insured had the right under its terms to surrender it and receive that sum from the insurer; that his right was a right of property, which passed under the deed of assignment; and that appellant as assignee could exercise the option or privilege given by the policy, which he attempted in this manner to do. The insurance company, the Nashville Bank, the insured, and his two children were made defendants to this ancillary [237]*237action. Waiving certain matters of practice, we will take np the main question presented, which is: Did the policy of insurance, or E. P. Townsend’s interest in it, pass under the deed of assignment for the benefit of creditors; and could the assignee exercise the privilege given by the policy to the insured, of surrendering it in accordance with its terms, and take its then cash surrender value in discharge of all the company’s liability on it?
The estate of the assignor embraced by the general deed of assignment is regulated by section 75, Ky. St. 1903, which reads in part: “The deqd of assignment shall be acknowledged by the assignor in the same manner as other deeds, and shall be recorded in the county clerk’s office of the county where the assignor resides, and where the business in respect of which the same is made is carried on, and in each county where a tract of land or the greater part thereof conveyed by the deed is situated; and the deed shall vest in the assignee the title to all the estate, real and personal, with all deeds, books and papers relating thereto belonging to the assignor at the time of the making of the assignment, except the property exempt by law shall not pass unless embraced in the deed.” We think it is first necessary to determine the rights of the parties to the contract of insurance, who are (1) the insurer, (2) the insured (E. P. Townsend), and (3) the assured, the beneficiaries named or described in the policy. At the time of the suit, and of the judgment, the latter were the children of E. P. Townsend. But, should other children be born to him, or should any of his children die in his lifetime leaving children, the clause in the policy naming its beneficiaries would open up to let them in. In Hopkins v. Hopkins’ Adm’r, 92 Ky. 324, [238]*23813 Ky. Law Rep. 707, 17 S. W. 864, the law is thus stated as t'o the rights of beneficiaries named in life insurance policies: “The general rule is that the right to a policy of insurance, and the money to become due under it, vests immediately upon its issual in the person named in it as the beneficiary; and that this interest, being vested, cannot be transferred by the insured to any other person. Washington Central Bank v. Hume, 128 U. S. 195, 9 Sup. Ct. 41, 32 L. Ed. 370. The vested right cannot be divested without the consent of the person invested with it. This is so as to insurance in both mutual and ordinary life insurance companies. This does not hold true, however, where the contract of insurance provides that the insured may change the beneficiary. In such case it vests conditionally only.”
In the case at bar, there was no reservation in the policy of the right to change the beneficiary.' The only reservation to the insured was the right to surrender the policy at the end of the first 10 years,' or at the end of any subsequent 5 years, and to receive in cash its then cash surrender value. And this right continued only for 30 days immediately following the 10 and 5 year terms mentioned. Unless, then, this right was exercised at the time,- and in the manner expressed in the policy, the interest of the named beneficiaries continued' unaffected by it. Their interest was vested, subject to be defeated only (1) if they died before the insured, or (2) if he, at the time and in the manner expressed in the policy, exercised his option to- surrender it in exchange for its then cash surrender value. It was not within the power of the insured, or within his and the insurer’s power, to alter the terms of the contract so as to affect the interests of the beneficiaries. The insured had not [239]*239the right to assign the policy to another, for value or not, nor had he the right to pledge it as collateral to secure his own indebtedness. The assignee could take no better title than he himself had, which was that of ultimate beneficiary in event of his failure, of issue during this life. In the latter event it is quite likely his assignment to a creditor would be held to create an equitable lien upon the fund. But it is contended that the insured has exercised his option to surrender the policy in exchange for its cash surrender value. It must be remembered, in testing this act, that it must be done not only when, but done in the way, the policy required. This is not so much for the benefit of the insurer who might waive the question, but for the assured, the beneficiaries. The power of attorney given to the bank was not an exercise by the assured of this option. It was an attempt on his part to give another the power to exercise an option which he alone had under the contract. Admitting that one may transfer his option so as to vest it in his assignee, it must at least be confined to his option concerning that which is his alone. If he has, by a tripartite contract, the option to adopt such a course in his judgment as would end the estate of one of the parties., the latter is entitled to have him exercise his own option. A. might be willing that B. should have the power to terminate the former’s estate; whereas, he would be-altogether unwilling to risk it with C., although selected by B. for the purpose. That the beneficiaries in this policy did not exercise their own will in bringing the contract into existence takes nothing from the applicability of the principle that one vested with- a power, to be exercised on behalf of or against another party to the instrument creating it, must [240]*240exercise it in person, and may not delegate it to another. Sugden on Powers, 214-224.
In addition, the attempted exercise of the power by the -insured was not done in the manner nor at the times specified in the contract. He must have surrendered up this policy to the insurer within 30 days after the termination of the 10 and 5 year periods, respectively, to wit, within 30 days after February 4, 1895, February 4,1900, February 4, 1905. As it affected the interests of others than the insured and insurer, time was of the essence of this contract.
Furthermore, the bank, though we should hold -it had the same right to exercise the power to disappoint the beneficiaries that the insured had, has never exercised that power. In whatever view the subject is looked at, the case always comes back to this point: The right reserved to the insured to surrender the policy at stated intervals in exchange for its cash surrender value has not been exercised, and therefore the vested interest of the beneficiaries remains unaffected by it.
From what has been said it follows that, if the insured could not assign the policy, in spite of its declaration that it was not assignable, and in spite of the vested interests of its beneficiaries, so as to secure a particular debt of his own, he could not assign it for the benefit of his creditors generally so as to vest his assignee with all the rights and power under it that the insured himself had.
Certain cases in this court have involved the rights of the creditors o.f the insured in policies of life insurance, where there was an assignment for the benefit of creditors-. Planters ’ State Bank v. Willingham’s Assignee, 111 Ky. 64, 23 Ky. Law Rep. 445, 63 S. W. 12; Larue’s Assignee v. Larue’s Adm’r, 96 [241]*241Ky. 326, 28 S. W. 790, 16 Ky. Law Rep. 641; Barbour’s Adm’r v. Larue’s Assignee, 106 Ky. 547, 51 S. W. 5, 21 Ky. Law Rep. 94; Morehead Case, 109 Ky. 51, 58 S. W. 473, 22 Ky. Law Rep. 580. It is thought that these eases indicate that a policy of| insurance on one’s life, in which his estate is the beneficiary, is such property as passes under a general deed of assignment. If the insured’s estate is the only beneficiary, and if the policy has been in existence long enough to have a cash value, it is such estate. But that is not this case. Life insurance was primarily for the benefit of the dependent members of the family of the insured. "While not exclusively so, nor necessarily so, such is generally its purpose. A man can labor while he lives to feed and clothe those who are dependent on him. It is a natural and commendable desire to provide for the same objects after his death. Such providence is looked upon encouragingly by the law. It is viewed in the same light that homestead and other exemptions are, all of which evidences the humaneness of the law. It recognizes that a man may owe other obligations in this life just as sacred, even in the eyes of the law, as those to his coal dealer or butcher. It admits the obligation to provide, first, at least a reasonable and decent subsistence for our dependent members; that little children have moral and legal rights upon the parents as much entitled to the law’s respect and consideration, as creditors have. Therefore, the Legislature of this State has enacted:
“Sec. 654. A policy of insurance on the life of any person expressed to be for the benefit of, or duly assigned, transferred, or made payable to any married woman, or to any person in trust for her, or for her benefit, .by whomsoever such transfer may [242]*242be made, shall inure to her separate use and benefit, and that of her children, indepehdently of her husband or his creditors, or any other person effecting or transferring the same or his creditors. And a married woman may, without consent of her husband, contract, pay for, take out and hold a policy of insurance upon the life or health of her husband or children, or against loss by his or her disablement by accident, and the premiums paid on such policy shall be held to have been her separate estate, and such policy shall likewise inure to her separate use and benefit and that of her children, free from any claim of her husband or others. But if the premium on any policy in this section mentioned is paid by any person with intent to defraud his creditors, an amount equal to the premium so paid, with interest thereon, shall inure to the benefit of said creditors, subject, however, to the statute of limitations.” Ky. St. 1903.
“Sec. 655. When a policy of insurance is effected by any person on his own life, or on another life in favor of some person other than himself, having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, shall be entitled to its proceeds against the creditors and representatives of the person effecting the same : Provided, that, subject to the statute of limitations, the amount of any premiums for said insurance paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy; but the company issuing the policy shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless, before such payment, the company shall have written notice by, or in behalf of, some creditor, with [243]*243specification of the amount claimed, claiming to recover for certain premiums paid in fraud of creditors. ’ ’
There is no claim in this case that the insured diverted an unreasonable amount of his estate to life insurance for the benefit of his family. At that time he was a very rich man. His creditors then had no right to complain. The policy was fully paid up years ago, and while he was still in affluent circumstances. There is no hint that he acted in any fraudulent sense in the matter. It was therefore allowable, without prejudicing his creditor’s rights, that he take out the policy for the benefit of his family as he did. It was to insure them against mishap in fortune as well as against his own premature death. Such insurance is made exempt, by the statutes quoted, from the debts of the insured. That it was competent for the Legislature to have done so is not open to question. That such insurance, honestly effected, is not liable for the debts of the insured, has been held in Hise v. Hartford Ins. Co., 90 Ky. 101, 11 Ky. Law Rep. 924, 13 S. W. 367, 29 Am. St. Rep. 358; Thompson v. Cundiff, 11 Bush, 567; Stokes v. Coffey, 8 Bush, 583; Hopkins v. Hopkins, supra; Wirgman v. Miller, 98 Ky. 620, 33 S. W. 937, 17 Ky. Law Rep. 1174; Morehead’s Adm’r v. Mayfield, 109 Ky. 51, 58 S. W. 473, 22 Ky. Law Rep. 580. Those cases, we concede, dealt with the question of the right of one indebted to insure his life for some members of his family, and to pay for it out of his means; while here the debtor insures his own life for the benefit of members of his family, but in case they die before he does, then for the benefit of his estate in that contingency, reserving to himself also the right to. anticipate the [244]*244sum insured and apply it to Ms own use if he so chose.
Holding that the option to cash the policy has not been exercised, and that' the power is not assignable,it- is nevertheless such estate as that under a general’ deed of assignment will not pass by law to the assignee for creditors. His interest is remotely contingent, and incapable of being valued. It is so woven in with other considerations, such as his conception of duty to his children, and the exercise of judgment in their behalf and in his own, that there can be no certain way of estimating the value of that interest, or of disposing of it without destroying or endangering other interests under the policy which are primary to those of the insured. The option is, baldly, to let his children have this provision for their future support, or to take it himself. Whether he should take it himself involves the exercise of judgment, discretion, and his own conception of duty. No one else has the right to exercise it for Mm, nor against the children; no one else could be actuated by the same impulse. Suppose the case were that the insured merely had reserved the power to change the beneficiary. We have time and again held, since the Hopkins Case, supra, that such a power reserved in the policy was not affected by the statutes quoted above. Could he be required to. exercise it against his children, and in favor of his creditors! Or could he have been required to so exercise it as.to give it all to one child who was indebted, so that the creditors might get it, and so as to exclude the other child! Is this case different in principle from those supposed! We think not. If a debtor has a homestead exemption, or the two horses exempt from execution, could he be compelled to sell and convert [245]*245the property into- cash (for he has the right and power to do so) so that his creditors conld reach it? A married woman may make a will. She may exclude her husband from her estate. But it is subject to his rights of renunciation within one year, in which event he would take under the statute of descent. It has been held by this court that an indebted husband could not be compelled to exercise his option to renounce the will which gave all the property to his children, and to take his part under the statute. Bottom v. Fultz, 124 Ky. 302, 98 S. W. 1037, 30 Ky. Law Rep. 479. We are unable to distinguish between the principle in that case and this one.
A statute of the United States (Bankr. Act duly 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p, 3418]) provides that life policies of bankrupts shall be subject to administration by the trustee for the benefit of creditors. But this proceeding is not under that statute. Nor can it elucidate the principle under consideration to note the decisions of the federal court expounding that statute, although it might be noted, in passing, that Congress seems to have deemed it necessary to expressly include such policies, or they probably would not have passed under the bankrupt proceedings.
We conclude that the life policy in this suit was not assignable so as to affect the interests of the beneficiaries provided in it, that it did not pass to the assignee under the deed of assignment for creditors, and that therefore the assignee had no right of action upon it or to recover it.
Such was the judgment of the circuit court.
It is affirmed.