Bradshaw v. Mutual Life Insurance

Williams, J.: The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event. The action was brought to recover the amount of a policy of insurance upon the life of the plaintiffs’ testator. The policy was issued January 16,1882, upon-the application of the wife by her husband, the insured, dated January 13,1882. The wife died Jnly 1,1896, leaving no children, but leaving a will which disposed of her property to others than her husband. The insured, the husband, died in April, 1901. The question was and is whether the wife was the owner of the policy at her death, so that it passed under her will, or whether the representatives of the insured, the husband, were entitled to the insurance upon his death. The case has been tried twice. Upon the first trial, a verdict was ordered for the plaintiffs for the amount of the premiums paid after the death of the wife, with interest, less costs, upon the theory that the policy, upon the death of the wife, passed under her will. In effect, this was a judgment for the defendant upon the question of ownership. The judgment upon such verdict was affirmed in this court (109 App. Div. 375), but was reversed in the Court of Appeals, and a new trial ordered (187 N. Y. 347). Upon the second trial a verdict was directed for plaintiffs, and this is an appeal from the judgment entered thereon. The record upon the former appeal did not contain the application for the insurance, and .the opinions in this court and the opinion in the Court of Appeals; treated the policy as one issued to the husland a/nd not to the wife. The application is.-in the present record, and it now appears the policy was issued directly to the wife. It is true that theJiusband negotiated for the policy, procured it to be issued, kept it in his possession and paid all the premiums thereon, but in so doing he acted simply as agent of.the wife, and she acquired a vested interest in the-policy at the moment of its delivery to the. insured, even though no knowledge of its existence cameuto the wife during her life. (Whitehead v. N. Y. Life Ins. Co., 102 N. Y. 143,) [819] The reversal in the Court of Appeals was based upon the mistake of fact, that the policy was issued to the husband and not to. the wife ; that the contract was between the husba/nd and the company, and not the wife and the company. The opinion of the Court of Appeals starts with the proposition that the policy was the eontraet of. the husband with the company, and both being competent were free to make such a contract as they could agree upon. The court further said : “ The statutes authorize a married woman to enter into a contract with an insurance company for insurance in her name, or in the name of a third person with his assent as her trustee, on the life of her husband, and they also recognize that insurance may be taken by a person on his own life for the benefit of a married woman. It is an insurance contract of the former, class that is referred to in the statutes that we have quoted giving a married woman power to dispose by will of such policy of insurance. The right to dispose of -insurance by will is based upon the vested interest which the wife has in the insurance. The statutes providing that insurance taken by a wife on the life of her husband may be made payable after her death to her children, for their use, and to their guardian, if under age, is permissive, and when a policy is so made' payable it is a contingent limitation upon the married woman’s absolute title to the proceeds of the policy which has resulted from her individual contract.” . It would seem, therefore, that it now appearing the contract of insurance was that of the wife and not the husband, the entire reason for reversing our judgment on the former appeal fails, and the trial court should have directed a verdict for the defendant instead of the plaintiffs, or at most should have directed a verdict for the plaintiffs for the amount of premiums paid after the death of the wife only, for which judgment was offered by the defendant. It does not seem necessary to discuss the other questions suggested by respondent on this appeal. So far as they are important they were passed upon by us upon the former appeal, and were left undisturbed by the Court of Appeals. All concurred, except Spring, J., not voting, and Kruse, J., who dissented in a memorandum.