Anderson v. . Goldsmidt

Earl, J. On the 31st of May, 1870, the Germania Life Insurance Company issued to Barbara Goldsmidt an endowment policy upon the life of her husband, Joseph Goldsmidt, for $1,000, payable May 31, 1885, or within sixty days after *620 due notice and proof of Ms death, should he die before that time. The policy, among other things, provided, that “ in case of the death of the said Barbara Goldsmidt before the decease of the said Joseph Goldsmidt, the amount of said insurance shall be payable after her death to her children, for their use, or to their guardian, if under age; or, if she shall have no, children, to her executors, administrators and assigns.” On the 15th of February, 1881, Barbara Goldsmidt and Joseph, her husband, united in a written assignment, signed by them, of all their right, title and interest in and to the policy to John Anderson. The policy matured on the 31st of May, 1885, and John Anderson having died, the plaintiff, as his executor, began an action to recover the amount of the policy from the insurance company, claiming under the assignment of the policy to his testator. An order was made substituting Barbara Goldsmidt as defendant, and the fund was deposited in court. She answered, setting up that the assignment was void because she was a married woman with children having an interest in the. policy, and because the assignment was not executed in conformity with the statute. A judgment for the plaintiff having been affirmed by the General Term, the defendant has appealed to this court and attempts to sustain her appeal upon the two grounds mentioned in her answer. It is provided in chapter 248, Laws of 1879, that “ all policies of insurance heretofore or hereafter issued within the State of Hew York, upon the lives of husbands, for the benefit and use of their wives, in pursuance of the laws of the State, shall be; from and after the passage of this act, assignable by said wife with the written consent of her husband; or in case of her death, by her legal representatives, with the written consent of her husband, to any person whomsoever, or be surrendered to the company issuing such policy, with the written consent of the husband.” Objection is made that there was not in this case, within the meaning of this statute, the written consent of the husband to this assignment. But by uniting with his wife in executing the assignment, he consented thereto in writing, and it would *621 be taking a very narrow view of the statute, quite inadmissible, to hold that the purpose of the statute was not fully answered by the execution of the assignment in that way. The mere fact that she had children at the time she executed the assignment did not render her assignment void. The statute, whether there be children or not, gives the wife, with the consent of her husband, the absolute power to assign or surrender the policy. It is quite true that the children had a contingent interest in the policy which would have become vested in case the wife had died before the policy matured. But here she survived that period, and hence the contingency did not arise which gave the children any interest whatever in the policy. At the time of this assignment there was no law and no public policy which prohibited the wife from assigning any interest which she had in the policy, and by the assignment, which she executed, plaintiff’s testator became vested with the entire interest in the policy, and there is no defense to the plaintiff’s claim to the amount due thereon. The judgment should be affirmed. All concur. Judgment affirmed.