Judgment upon Pleadings—When Proper.—Where a complaint states a canse of action, and proof of the affirmative averments in the answer would be immaterial, and the denials of the answer are merely of matters of law, it is proper to render a judgment for the plaintiff upon the pleadings.

Life Insurance—Construction of Policy—Rights of Minor Children. Where a life insurance policy is payable to the surviving wife of the insured and minor children living at the time of his death, there is no limitation to the minor child of any particular wife; but the policy refers to all of the minor children of the insured living at the time of his death.

Id.—Statute of Succession not Involved—Sharing Policy per Capita. A policy payable to the surviving wife and minor children of the deceased does not go one-third to the widow and two-thirds to the minor children, according to the statute of succession; since the fund is no part of the assets of the estate of the deceased, and the law of descents and distributions has no applicability to the case; but the persons named in the policy take per capita, and each minor is entitled to his fractional share of the amount of the policy.

Id.—Collection op Policy by Executors—Action for Distributive Share.—The executors of the estate of a decedent have no right as such to receive the proceeds of a policy payable to his widow and children as any part of the estate of the decedent, and they may be sued personally by one who was a minor child at the time of the death of the deceased to recover his share of the policy.

Id.—Wrongful Possession of Policy—Trust.—Executors who have wrongfully come into possession of the amount of an insurance policy, whether by mistake or otherwise, become trustees of the thing gained for the benefit of the person who would otherwise have had it.

Id.—Insufficient Answer—Estoppel—Distribution of Estate.—In an action against the executors personally to recover the share of a policy belonging to plaintiff, who was a minor child at the time of the death of the deceased, an answer that the whole amount of the policy was treated by the executors as part of the assets of the estate, and was so inventoried, accounted for, and distributed, under the last will of the deceased, to the widow and to her assignee, and that the plaintiff had notice of such inventory, and appeared personally and by counsel in the proceedings connected with the administration of the estate, and made no objection to the distribution of the proceeds of the policy as part of the estate, and that such distribution was made with his knowledge and consent, and that he is estopped from setting up any claim to any part of said proceeds, but not averring that the executors did not know, or had no means of knowing, to whom the proceeds of the policy belonged, or that they relied upon the conduct of the plaintiff, and were induced thereby to deal with the proceeds as alleged in the answer, does not state the essential elements of an estoppel, or disclose a defense to the action.

Id.—Contest for Proceeds of Policy—Jurisdiction of Probate Court. A contest for the proceeds of an insurance policy payable by its terms to the widow and minor children of the deceased cannot be inaugurated in the probate court.