EDWARD O. PROCTOR, TRUSTEE IN BANKRUPTCY, vs. BERTHA M. MACCLASKEY.

WAIT, J. The defendant's husband at his death was president, treasurer, general manager and majority stockholder of Phoenix Bond & Mortgage Company, a corporation engaged in the business of a broker. He died December 14, 1930. He took out policies of fife insurance in 1912, 1918, 1923, 1926, and 1929, of which she was the beneficiary. In the course of 1929 and 1930 he caused the corporation to pay premiums upon these policies in a total sum of $2,599.05. Since his death the defendant has received from the insurance companies $68,469.08 upon the policies. From September, 1929, to and including July, 1930, the husband caused the corporation to pay in each month except June $210, and in October, 1930, $60, in all $2,160, for notes given by him in payment for an automobile, title to which was taken by the defendant, in whose

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name, as owner, it was registered. In May, June, July and October, 1930, the defendant received from the corporation at various times a total of $1,900. The corporation at the times of all the foregoing payments was insolvent; and it received no consideration for them.

The plaintiff is the trustee in bankruptcy of the corporation. He brings this amended bill alleging the foregoing in greater detail; and, in addition, stating that these payments were in fraud of the creditors of the corporation, that the corporation at the instance of the husband paid the insurance premiums "in order that the . . . [policies] might be continued in effect for their full face value at the death of the insured, and did thereby effect the said policies in the amounts by which their full face value exceeded their then paid up or cash surrender value, which said amounts are greater than the amount of the premiums so paid"; and, further, that he is informed and believes that the husband's estate is insolvent and the respondent has not sufficient assets to meet the plaintiff's claim save for the proceeds of the insurance policies; that he has no information in what form or in what institution her funds are kept or on deposit and so is unable to attach them in an action at law and is without adequate remedy at law.

The case is before us upon the plaintiff's appeals from an interlocutory decree sustaining a demurrer, and from a final decree dismissing the bill.

The demurrer was sustained properly. G. L. c. 175, § 125, as amended by St. 1928, c. 176, § 1, provides that "If a policy of life or endowment insurance is effected by any person on his own life or on another life, in favor of a 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, whether or not the right to change the named beneficiary is reserved by or permitted to such person; 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 enure to

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their benefit from the proceeds of the policy." Section 126, as amended by St. 1928, c. 176, § 2, provides that policies of life or endowment insurance made payable, or after issue transferred in any way so as to be made payable, to a married woman, "whether procured by herself, her husband or by any other person, and whether the assignment or transfer is made by her husband or by any other person . . . shall enure to her separate use and benefit, and to that of her children, subject to the provisions" of § 125 relative to premiums paid in fraud of creditors. Thus the proceeds of the policies of insurance referred to in the bill are secured absolutely to the defendant, unless a right in premiums paid in fraud of creditors exists in the plaintiff. Whatever right he has must be derived from the statutes. As was pointed out in Bailey v. Wood, 202 Mass. 562, 566, there was diversity of judicial opinion relating to the rights of a wife and of creditors in policies of insurance procured by the husband, which could best be dealt with by legislation. Our statutes define them, and our courts will act upon the rights as so defined. Bailey v. Wood, 202 Mass. 562; Bailey v. Wood, 202 Mass. 549. The uniform fraudulent conveyance law, c. 109A inserted in the General Laws by St. 1924, c. 147, cannot be held to abrogate them. There is no allegation that the husband was insolvent when the premiums were paid. It was he who effected the policies. He procured them and he made the changes of beneficiary in those not originally issued with the wife as beneficiary. All was before any payment of premiums by the corporation. We cannot interpret the statutes to grant the right here claimed to any but creditors of the person who effects the insurance. That person, we think, is the one who takes out' the policies or procures them to be taken out. See Earle v. Kingscote, [1900] 2 Ch. 585. The plaintiff contends that by the payment of the premiums with money of the corporation the policies, which otherwise must have lapsed, were kept at their face value rather than at the cash surrender value or their value as paid up policies under G. L. c. 175, § 144, and so the corporation should be regarded as effecting the insurance to the extent that

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the face value was greater than the other. The language "If a policy of life or endowment insurance is effected by any person on his own life or on another life" clearly identifies the one who obtains the policy from the issuing company or insurer as the person who "effects" it. It must be, we think, the same individual who is later referred to in the words "against the creditors and representatives of the person effecting the same." Examination in detail of the language of the statutes now embodied in § § 125 and 126, which need not be stated here at length, fully sustains this interpretation. The plaintiff's contention cannot be accepted.

The reason commonly given for the proviso is the propriety of allowing his creditors to obtain the amounts by which the insolvent has depleted his estate in order to secure the insurance, his gift to those who naturally look to him for support. Bailey v. Wood, 202 Mass. 549, 551. Here the proceeds of the policies are sought not for the benefit of the creditors of the husband but for that of the creditors of the corporation. The personal representative of the husband is not made a party. The corporation in making the payment, unless it is treated as the agent of the husband spending money for which he was accountable to it, is in the position of a volunteer who pays premiums for insurance. Such a volunteer has no valid claim for reimbursement and no lien on the policy. Gifford v. Gifford, 93 N. J. Eq. 299. Bartlett v. Goodrich, 153 N. Y. 421. So far as the bill sought to reach the proceeds of the policies it was demurrable.

The plaintiff has a plain, adequate and complete remedy at law to recover the $1,900 paid without consideration and received by the defendant; and also for the amounts paid upon the notes given in payment by the husband for the automobile. Ordinarily a bill in equity cannot be maintained to obtain precisely what the plaintiff can secure by action at law. The constitutional right to trial by jury might be infringed otherwise. Jones v. Newhall, 115 Mass. 244. Maguire v. Reough, 238 Mass. 98. Morse v. International Trust Co. 259 Mass. 295. Where, however,

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a statutory remedy in equity is given this rule does not apply- Such a remedy we have held in Powers v. Heggie, 268 Mass. 233, 241-242, is given by the uniform fraudulent conveyance law, c. 109A, inserted in G. L. by St. 1924, c. 147. That decision is controlling here. The demurrer on the ground of complete and adequate relief obtainable by action at law is not well taken. Moreover, remedy in equity to follow the proceeds of the corporation's money into the automobile exists, although it may be doubted whether the bill sets out facts which would here support it. It is unnecessary to discuss the point further. These claims, however, cannot properly be joined with the claim to reach the proceeds of the insurance. There is no such connection arising from misconduct on the part of the defendant that cases like Bliss v. Parks, 175 Mass. 539, Digney v. Blanchard, 226 Mass. 335, Phelps v. Creed, 231 Mass. 228, cited by the plaintiff, and Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, are applicable here. No misconduct of the defendant is alleged. So far as appears she has acted honestly and in good faith.

The plaintiff's lack of knowledge in regard to the whereabouts of the defendant'

s property or of her bank account is not a good ground for jurisdiction in equity. No fraudulent concealment by her is alleged such that equitable replevin can be maintained.

It follows that the demurrer was sustained properly and the interlocutory decree must be affirmed. As no amendment was offered, the final decree also was right; but, in view of the decision with reference to certain of the claims, we think it should be modified by a declaration that it is without prejudice to such right as the plaintiff may have to recover the sums paid on the automobile notes and to the defendant, and, as so modified, that it be affirmed.

Ordered accordingly.