95 N.Y.S. 797 | N.Y. App. Div. | 1905
The facts are not in dispute. John 0. Burns became a member of the Masonic Mutual Life Association of Cleveland, O., March 25, 1884, and under that date received a certificate of insurance, being Ho. 366, for $3,000, payable “to the heirs of said John C. Burns” upon his death. Thereafter and about February, 1901, as authorized by the laws of -Ohio, the Knights Templars and Masonic Mutual Aid Association of Cincinnati, O., reinsured the risks of the Masonic Mutual Life Association, and at the request of John C. Burns issued to him its certificate, being Ho. 15,506, for like amount, also made payable “ to the heirs of the said John C. Burns,” which is the certificate or policy in suit. The notice sent to Burns by the association issuing the certificate in question and which induced its acceptance in the place of the one issued to him by the Masonic Mutual Life Association contained the following : “ The laws governing associations like ours permit you to name as your beneficiary any one or more of your family who are heirs, or it may be made payable to either your executors, administrators or some one as your assign.” Burns assented to such reinsurance, accepted the certificate in suit, and directed “ that my new certificate be made payable to my heirs as my beneficiary.” Such "new certificate, the one in suit, contained the following provision :
“Eighth. This contract shall be governed by and construed only according to the Laws of the State of Ohio, the place of this contract being expressly agreed to be the Home Office of the Association in the city of Cincinnati, Ohio ; and no action at law or suit in equity shall be maintained hereon, or recovery had, unless such*100 action or suit is 'commenced within, one year from the, date of the 'death of said member.” . .
A 'by-law of the association, which was. received in evidence, •provides as follows: “The home office shall be in the city of Gin-cirinati, Hamilton County, Ohio. The object of the/ Association shall be to furnish mutual protection and relief'to its members, and for the payment of stipulated ¿u’ms of money to the families,, heirs*, executors, administrators or assigns of the deceased members of the association.”' ■.
. When each of the certificates referred to was issued,, the insured was a resident of the State of Hew York, as was also the, -plaintiff, his.widow, and the defendants* their children. -Such Continued to be the place of residence of the insured until his' death,, which occurred on the 25th day of February, 1902- During all of said time, and when this action was commenced, the plaintiff and defendants were also residents of this State. . Ho question is made by the association as to its liability. In fact, at the request and- for the ,,,convenience of all the parties, it deposited the full amount of said fund with the defendant hank to abide the-final decision of this case. The certificate was- éxecuted and issued at the home office of the association in Ohio. It was made payable there upon.the pre- . sentation to' it at .that place of proper proofs of death.. All premiums or assessments were required to be paid at the home- office. Upon the foregoing facts we think it is. clear, that the rights, of the parties to this action should be determined in accordance with the laws of Ohio. (Mutual Life Ins. Co., of N. Y. v. Dingley, 100 Fed. Rep. 408.)
In that case the insured, when the policy was issued and at the time of his death, was a resident - of the State of Washington, and his administrator who. brought the action was appointed in- that State. The insurance company which issued the policy was ,a Hew York corporation, having its' principal or home office in the city of .Hew. York.- By its terms the policy was made “ subject to the /charter of the company and the .laws, of the State of Hew York.” There, as. here, the policy was delivered in & foreign State, but it" /provided, as does the certificate in question,.that it was payable, at' the ■ home office, as were also all the premiums. The court held that the contract should be construed according to and governed
In that case one Pollard became a member of the plaintiff, in which he had a policy for $1,000, payable to his “ heirs.” ' He died, leaving his widow and child surviving. It was held that'his widow and child were his “ heirs.”
In Furguson v. Stuart's Executors (14 Ohio, 140), where a testator provided by will that certain moneys should “go to my heirs,” it was held that the widow of the testator was an heir and included in the word “ heirs,”
In the Pollard Case (supra), the facts in which were almost identical with the facts of the case at bar, so far as they affect the question now being considered, it was held that the amount of the insurance to which the widow was entitled was fixed by the Statute of Descent and Distribution above quoted.-
In our view of the case it is unnecessary to decide what would have been the rights of the parties if the certificate in question were to be construed under the.laws of this State-, as w;e are of the opinion that its meaning must be ascertained and the rights of the parties determined under the laws of the State of Ohio. So interpreted and construed, the plaintiff was entitled to receive something more than one-third of the fund, about $1,067. The learned trial court determined that the plaintiff was entitled to receive $1,000, .being one-third of the $3,000, under and by virtue of the Statute of Distribution of the .State of New York, as. in cases-of intestacy: In our view of the case, such statute in no manner affected the rights of the parties, but as the judgment awarded to the plaintiff a less sum than she was entitled to under the Ohio statute, which is applicable and fixes the amount, the plaintiff not having appealed, we think the judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.