52 Conn. 586 | D. Conn. | 1879
The Connecticut Mutual Life Insurance Company, by a policy of insurance signed in their behalf by their president and secretary at Hartford in this state, on the 13th day of March, 1860, and countersigned by their agent at New York on the 15th day of the same month, assured the life of Samuel P. Westervelt, then of Morrisiana in the state of New York, for the sole use of his wife, the said Susan Westervelt, in the sum of five thousand dollars, for the whole term of his life, in consideration of the sum of two hundred and fourteen dollars then paid by the said Susan Westervelt and of an annual premium to be paid on or before the 13th day of March in every year while the policy continued. By the terms of the policy the sum insured was made payable to the said Susan Westervelt, her executors, administrators or assigns, for her sole use, within ninety days after due notice and proof of the death of the said Samuel P. Westervelt, after deducting therefrom all notes taken for premiums unpaid at that date. And in case of the death of the said Susan before that of. said Samuel, the insurance was made payable to her children or their guardians, if under age, for their use, upon like proofs. The policy was delivered to the assured in the citj of New York by the agent of the said company in that city on or about the 15th day of March, 1860. The annual premiums were paid by the said Samuel P. Westervelt until and including the one due on the 13th of March, 1876, and those which were payable on the 13th of March in the years 1877 and 1878 were paid by the said Ralph P. Westervelt.
In the month of June, 1875, the said Samuel P. Wester
In the latter part of the year 1875, the said Samuel P. Westervelt was indebted to the said Mary H. Westervelt and Anna M. Fenner for money lent in the sum of fourteen hundred dollars; and one thousand dollars, parcel of-the consideration stipulated to be paid for said sum, being about to fall due and become payable, he, the said Samuel, applied to the said Mary H. Westervelt and Anna M._ Fenner to raise him the sum of three thousand dollars on the security of a second mortgage on certain property in Harlem, New York; but this they refused to do, as the security offered was not satisfactory to them. A few days afterwards he again applied to them through the said Ralph P. Westervelt, to raise him the said sum, offering as security therefor the note of the said Susan Westervelt and an assignment of the said policy of insurance; and they agreed with him that they would raise the mone3. They accordingly borrowed of the Mutual Life Insurance Company of New York the said sum of three thousand dollars, and mortgaged their real estate in Patterson, New Jersey, where they resided, to secure its payment; and on the 22d day of January, 1876, at said Patterson, they loaned the said sum to the said Samuel P. Westervelt and received from him at the same place the note of the said Susan of that date for the amount
The said Samuel P. Westervelt paid from the money loaned him by the said Mary H. Westervelt and Anna M. Fenner to the said Ralph P. Westervelt $700, to the said Mary and Anna $700, in part payment of a debt of $1,400 which he owed them, $100 for the expenses incurred by the insurance company in searching the title to the lands mortgaged to them as aforesaid by the said Mary H. Westervelt and Anna M. Fenner, and the remaining $1,500 he retained himself.
The assignment to Ralph P. Westervelt was made without any lawful authority whatever, and, as appears by his answer, not to secure the payment of a loan made at the time to the said Samuel P. Westervelt, but to secure a pre-existing debt.
The said Mary H. Westervelt and Anna M. Fenner had no knowledge of the circumstances under which the policy was delivered to the said Samuel P. Westervelt by the said Susan Westervelt, but supposed and believed, and were justified in supposing and believing, that it was delivered to him for the purpose of enabling him to borrow of them the said sum of three thousand dollars, and to secure the payment thereof by the assignment written upon said policy. The said policy was not obtained by the said Samuel
The indorsement of the policy in blank by the said Susan Westervelt in the case at bar could, therefore, have been interpreted by the public as made for no other purpose than an assignment, and if upon the faith of it the said Mary H. Westervelt and Anna M. Fenner had made the loan which they did to Samuel P. Westervelt, Susan Westervelt would not be permitted to say that such was not the true interpretation of the indorsement. But the blank was filled when the
But it is urged that the assignment was void, because by the laws of New York the policy was not assignable; and the cases of Eadie v. Slemmon, 26 N. Y., 9; Barry v. Equitable Life Insurance Company, 59 N. Y., 587, and Wilson v. Lawrence, 18 Hun, (22 N. Y. Sup. Court Rep.,) 463, are cited in support of the claim. Two of those cases arose upon policies issued by New York corporations, and the third upon a pol^ issued by the Connecticut Mutual Life Insurance Company, the petitioner in the case at bar. In two of the cases the assignor and assignee resided and were domiciled in the state of New York and the assignments were executed and delivered in that state. In the other cases the assignor was a resident of the state of New York, and the assignee was a resident and citizen of the state of Maryland. The assignment was executed on a paper separate from the polic3 and transmitted to the assignee in Mainland by mail from New York, without the policy. The policy was subsequent^ delivered to the assignee in the city of New York. The court held that the government of the United States was the agent of the assignee in transmitting the assignment to him from New York to Maryland, and therefore that the assignment, as well as the policy, was delivered to the assignee in the city of New York; and that the contract of assignment was upon that grouud to be treated as a New York contract. The polic3 in the present case is the contract of a Connecticut corporation, and b3 the terms of it the sum insured is pa3able in Hartford to Susan ’Westervelt the wife of Samuel P. Westervelt, her executors, administrators or assigns, unless she died before-her husband, and to her children in case he survived her.
The conclusion is that a decree be entered authorizing