¶1The action was brought against the Union Central Life-Insurance Company on a policy for $5,000 on the life of one Clark O. Simpson, deceased, plaintiff claiming the entire proceeds of the policy under an assignment of the policy. The administrator of the deceased also claimed the proceeds of the policy. The insurance company paid the money into court, and impleaded the administrator as a party-defendant.
¶2The policy in question was procured by the insured for the stated purpose of assigning it “ to secure financial obligation to be incurred for like amount.” The assignment of the policy reads as follows:
¶3*185“ In consideration of $5,000, the receipt of which is hereby-acknowledged, I hereby assign the above described policy of insurance unto Louisa M. Becker, creditor … as her interest may appear …
¶4The administrator, therefore, is prima facie entitled to the proceeds of the policy subject to the claim of the assignee to the extent of her interest as shown by her. Plaintiff was barred by section 829 of the Code from swearing to transactions between her and the deceased in the establishment of her interest, but points to the assignment itself, wherein the consideration is expressed as being equal to the face of the policy, and the receipt thereof expressly acknowledged. Plaintiff, therefore, makes proof of the extent of her interest, which she claims to be due and owing at the date of the death of the insured, and the burden of combating this proof rests on the administrator. The administrator made no attempt at any proof, but rested on plaintiff’s case, and now seeks to reverse the judgment on the ground chiefly that the finding of the court that “ moneys ” were advanced, without stating the amount of such moneys, is insufficient to support the judgment. We are of opinion, however, that the court must find that the recital in the assignment, in the absence of proof to the contrary, established the payment of $5,000 by the plaintiff to the insured. There was no claim made by defendant of the refund of any of this money, and plaintiff cannot be required in the first instance in view of the written admission of the insured to prove the negative fact of there not having been any such refund.
¶5The judgment appealed from should be affirmed, with costs to respondent.
¶6The third finding of fact should be modified to read that “ During the lifetime of the insured, the plaintiff advanced and caused to be advanced to or for him, the sum of $5,000, which remained due and owing to her at the time of the death of the insured.” ,
¶7Clarke, P. J., concurred.
¶8Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.