Bradshaw v. Mutual Life Insurance Co.

Williams, J,: . The' judgment should be affirmed, with costs. The action is to recover the amount of an insurance policy issued by the defendant to the plaintiffs’ testator, Robert C; Bradshaw, payable at his death to his wife Corrie f. for her sole use, if living ,• in., conformity with the statute, and if not living,, to their children Or their guardian for their use. . The policy was issued January 16, 1882. The Bradshaws were then husband and wife and continued such until the wife died July 3, 1896. They nevér had any children. Mrs. Bradshaw left a will by which she made no specific disposition of this policy, but ' disposed of all her property, including this policy, provided she had power to dispose of it by will.. Her will was duly admitted to — 377 — probate and an executor appointed thereunder, who duly qualified, and who claims the money payable upon this policy. The husband, Bradshaw, negotiated for this policy himself and retained it and paid the premiums thereon until his wife died. Immediately after her death he agreed with the defendant to pay the future premiums during his life, in consideration of which agreement the defendant agreed to make the policy payable to his estate, and notified him in writing that it had done so, and he did thereafter pay the premiums until his death, April 19, 1901. He left a will, which has been admitted to probate,'under which plaintiffs are executors.' The court held that^upon the issue of the policy the title thereto vested in the" wife and remained so until her death, and then belonged to her estate and passed under her will; that the plaintiffs were entitled to recover from'the defendant the premiums paid by the husband under the agreement of the defendant, with interest, but had no right to the amount of .the policy. It will be seen, therefore, that the question involved in this appeal is whether under the statute the wife had title to the policy at her death and the power to dispose of the same by will. The statute under which the policy and the money payable thereon are claimed by the wife’s representatives is chapter 80-of the Laws of 1840, as amended by chapter 187 of the Laws of 1858 ; chapter 656 of the Laws of 1,866 ; chapter 277 of the Laws of 1870, and chapter 821 of the Laws of 1873. ' Since the amendment of 1858 the act has been entitled, “ An act for the benefit.of married women in insuring the lives of their husbands.” The amendments of 1866,1870 and 1873 were in force when this policy was issued. All these statutes were repealed by section 90 of the Domestic Relations Law (Laws of 1896, chap. 272), which took effect October 1,1896 (Id. § 91), and section 22 of that law, which is still in force, was enacted in place of the' act of 1840 and its amendments. It was provided by section 1 of the act of 1840, as amended in 1870, in brief, that it should be lawful for a married woman to cause the life of her husband to be insured for her sole use, arid that should she survive the period or term of the insurance the amount of the insurance should be her own property, free from any claims of the representatives of the husband or of his creditors or persons claim — 378 — ing by, through or under-him provided that the yearly premium in excess of $500 paid out of the|property or funds of the husband, with the interest thereon, should inure to the benefit of the creditors of the husband. By section 2 of said act, as amended in 1866, it was provided that.“the amount of the insurance may be made payable in case of the death of the wife before the period at which it becomes due to her husband or to his, her or their children, for their use, as shall be provided in the policy of insurance aiid to their guardian if under age.” By sectibn 2 of the act of 1870, as amended by the act of 1873, it was provided: “Any policy in fa.vor of a married woman, or of her and her children, * * * maj* be surrendered to and purchased by the company issuing the same", in the same manner as any other policy. A.nd such married woman may, in case she have.no child or children born of her body, or any issue of any child or children born of her body, dispose of such policy in and by a last will and testament or any instrmpent'in the nature of a last will and testament or by deed duly- executed and acknowledged * * * which disposition lawfully made, shall in vest ‘the person or persons to whom such policy shall have been so bequeathed or granted and' conveyed, -with the same rights in respect thereto, as such married woman would have had in case she survived the person on whose life such policy was issued, and such legatee or grantee shall have the same right to dispose of such-policy as herein- conferred' on- such married woman.” There seems to be no provision in the sections quoted, as to the pre-. cise form in which the policy may be issued. The provision in section 2 of the act of 1870, as amended in 1873, is. that any policy that had been issued in favor of a married woman or of her and her children might be .surrendered or disposed of by will or assignment. Section ■ 22 of the Domestic Relations Law re-enacts section 1 of the old law, as amended, in substance, though' not in words^ and then provides a substitute for section 2 of the principal act and section 2 of the act of 1870, as amended, viz.: “The policy may provide that the insurance, if the married woman dies before it becomes due and without disposing of it, shall be paid ;to.her-husband, or to his, her- or their .children, or to or for the use of one. or more of those persons * * *. The married woman may dispose of such policy by will or written acknowledged assignment, -to take effect on her — 379 — death, if she dies thereafter, leaving no descendant surviving. After the will or the assignment takes effect the legatee or assignee takes such policy absolutely.” The section further provides for the assignment of the policy and for the surrender thereof to the company issuing the same, by the married woman, or her legal representative, with the written consent of the assured. The policy in question was issued under the old act of 1840 and its amendments, and that act was still in force when the wife died in July, 1896, the repeal taking effect in October, 1896. Very likely the Domestic Relations Law has nothing to do with the question we are here considering, but it is interesting to observe the change made thereby in the statute of 1840 and its amendments. It is said that the policy did, not conform to the language of the statute, that it was not one for the sole use of the wife under section 1 of the statute as amended in 1870, nor was it one in favor of the wife or of her and her children under section 2 of the.act of 1870, as amended in 1873 ; that it was one for her sole use, if living, at the death of her husband, and if not then living, for the benefit of their children. The policy, however, by its language, expressly" provided it was in conformity with the statute, and this reference could only have beeii made to the provisions of the amendments of 1866; 1870 and 1873 above referred to. We "can hardly adopt the reasoning of appellants’ counsel that the policy is not within the provisions of these statutes, in view of the language used in the policy referring to the statute, and of the decisions of the courts, hereinafter referred to. The policy was one under section 2 of the act of 1870, as amended in 1873 “in favor of a married woman * * * and her children.” It is said this policy was not one procured by the wife, but by the husband; that he caused it to be issued; kept it in his possession and paid all the premiums thereon until the death of his wife, and, therefore, the policy is not within the provision of the statute. But it was held in Whitehead v. N. Y. Life Ins. Co. (102 N. Y. 143) that “ where a husband procures a policy of insurance upon his life for the benefit of his wife, or in case of her death before his, of their children, in procuring.it and in doing whatever is necessary tp perfect and' continue the rights of the assured, he acts simply as — 380 — their agent, and by force of the statute authorizing such insurance (Chap. 80, Laws of 1840), they acquire a vested interest in the policy at the' moment of its delivery to the insured; and this-although no knowledge of the existence of the policy comes to them until after,his death; their claim to the fruits of the insurance is a ratification of the act by which it was obtained. The assured, therefore, acquire and hold their ownership irrespective of the question whether the policy has been actually delivered to them.” The same doctrine was held in Dayton v. Olaflin Co. (19 App. Div. 120,124) arid Shipman y. Protected Home Gvrcle (174 N. Y. 398). - It does not seem to-be essential that the policy shall use the precise. words of the statute, in order to' be regarded as within its provisions. If it is issued upon the life of the husband for. the benefit of the wife or wife and children it is covered by the. statute. In Brummer v. Oohn (86 N. Y. 11) it was said by the court: “ The act does not require that it should appear by the policy that it was. issued under the act,, in order that the insured .should have the benefit of its provisions. There are -no restrictive terms. The act is remedial, and was passed for the benefit of married women and their children, and the intention of a' married woman ¿ in insuring the life of .her husband to avail herself of its provisions, is inferable from its beneficial nature.” . • - ■ In Whitehead v. N. Y.. Life Ins. Co. (supra) the policies were payable to the wife, or in case -of her death before the husband, then to their children, and they were held to be within the statute. In Walsh v. M. L. Ins. Co. (133 N. Y. 408) the policy was payable to the wife, if living, if not living, to her children, and' it was held to be within the statute. . .... ■ In Haney v. Van Cott (71 Hun, 394; affd. on opinion below, sub nom. Haney v. Wright, 149 N. Y. 579) the policy was payable to the wife, or if she should not be living, then to her children ; and it was held ■ to be within the statute. In that case the wife died before the husband leaving ho children. She left a will wherein her husband was one of • the executors. The will contained no specific disposition of the policy, but there was a residuary -clause. The husband, as executor of his wife, sold the policy to a purchaser, who -thereafter paid the premiums. After the death of the husband the money was claimed by his personal representatives and also — 381 — by the residuary legatee under his wife’s will and by the purchaser of the policy. It was held that the policy passed under the residuary clause in the wife’s will, and the purchaser from her executor, the husband, got good title to it, and was entitled to the moneys payable thereon. This policy being within the provisions of the statute at the death of the wife, without children, it passed under the residuary clause in her will, and her personal representatives are entitled to the moneys payable thereon. We think no estoppel was established against the defendant’s interposing its defense. If the agreement between the husband and the defendant was invalid, it was so as a matter.of law, and the husband, as well as the defendant, was bound to know the law. There was no .mistake or misrepresentation of the facts. ■ They were all kno wn to the husband as well as to the defendant. The plaintiffs •procured a judgment for all moneys paid by the deceased to the defendant as premiums, pursuant to the agreement, with interest, which .was as favorable a result as they were entitled to. Without discussing the other objections to this defense made by the defendant, we think no error was committed in respect to this branch of the case. Ho other questions raised on the appeal need be discussed. All concurred, except McLennan, P. J., who dissented in an opinion in which Nash, J., concurred.