190 N.Y. 211 | NY | 1907
The plaintiff is the widow and the defendants are the children of John C. Burns and their dispute is over the distribution, which should be made of certain life insurance moneys that became payable upon Burns' death. The Knights Templars and Masonic Mutual Aid Association of Cincinnati, an Ohio corporation, upon Burns' application, issued to him its certificate, whereby it "agreed with him *213 to well and truly pay to the heirs of the said John C. Burns the sum of $3,000 * * * at the office of the Association, in the City of Cincinnati, O.," upon the proof required as to his death. The certificate stated that it was "issued and the contract made upon" certain "express conditions and agreements"; among which was one that "this contract shall be governed by and construed only according to the laws of the State of Ohio, the place of this contract being agreed to be the Home office of the Association in the City of Cincinnati, Ohio." By one of the by-laws, which were made part of the contract, it was stated that "the object of the Association was to furnish mutual protection and relief to its members and for the payment of stipulated sums of money to the families, heirs, executors and administrators, or assigns, of the deceased members." At the time the certificate issued, the assured and his family, composed of the plaintiff and the defendants, were, and they continued, up to his death, to be, residents of this state. The association does not dispute its liability and, under an amicable stipulation, the insurance moneys were deposited by it in a bank in this state, to the credit of "the heirs of John C. Burns," to be held until the final determination of this action. Thereupon, the action was commenced by the widow and the sole question, which the parties seek to have determined, is whether, the policy having been made payable "to the heirs" of Burns, his widow can share in the payment. She proved upon the trial a statute of the state of Ohio, contained in section 4176 of the Revised Statutes, which provided, as follows: "when a person dies intestate and leaves no children, or their legal representatives, the widow, or widower, shall be entitled, as next of kin, to all the personal property, which is subject to distribution upon settlement of the estate; but if the intestate leaves any children * * * the widow, or widower, shall be entitled to one half of the first $400, and to one third of the remainder of the personal property subject to distribution." The plaintiff succeeded in recovering a judgment for one third of the insurance moneys; which has been affirmed at the Appellate Division. *214
The relation between Burns and the association was one of contract merely. The so-called certificate expressed it and embodied the respective rights and obligations of the parties and of the payees, or beneficiaries. (Uhlman v. N.Y. Life Ins.Co.,
For these reasons, I advise the affirmance of the judgment, with costs.
CULLEN, Ch. J., O'BRIEN, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment affirmed.