45 N.Y.S. 1005 | N.Y. App. Div. | 1897
The action was originally brought against the Mutual Life Insurance Company to recover the sum of $10,000 upon two - policies of insurance issued upon -the life of Henry W. Dayton, the husband of plaintiff. One policy for $5,000 was issued November 24, 1890, •payable directly to the plaintiff; the other policy for - $5,000 was issued- September 10, 1891, payable to the husband himself, and was assigned to the plaintiff December. 4, 1891. After the commencement of the action an order was entered directing the $10,000 to be deposited- in court, awaiting the determination of the claims thereto; and the defendant, H. B. Claflin Company, was substituted for the insurance company in the action. The defendant claimed that it was entitled t-o the whole insurance fund, and its claim was based substantially upon the allegation that the. assured had, for many years before his death, been one of the employees of the firm of II. ¡B,
A few quotations from the opinion of Peckham, J., will show
The opinion then proceeded to discuss this question of alleged right of property in the wife to insure her husband’s life, and it was held that this.was not such right of property as constituted a mingling of funds in the purchase or procurement of the policies.
In the case quoted from above there was held to have been no mingling of* the partnership funds with the funds of the wife or the assured in the payment of premiums. All were paid from partnership funds.
In the case we are considering there was concededly a mingling of defendant’s funds with the funds of the wife or the assured. The court in Holmes v. Gilman (supra), declined to pass upon the question as to the rights of the parties in case of the mingling of' funds in the payment of premiums, a part being trust funds and a part other than trust- funds. The opinion of Peckham, J., evidently was that under some circumstances the cestui que trust would be permitted to share proportionately in the. whole fund. There was no suggestion by him, however, that the cestui que trust would be permitted in any such case to recover the whole fund, subject only to a claim by the assured or his wife or children to a return of the money
He found that as to the policy first issued,, the one payable -directly to the wife, there was a mingling of funds in tile payment of the premiums, one payment, seventy-six dollars (the second one made on the policy) having been made by the deceased from moneys furnished! by the wife expressly for this purpose; and yet the defendí ant was awarded' the whole fund, the wife being merely allowed a lien thereon for her seventy-six dollars and interest. The referees put this on the ground that the wifé loa/necl this money to.the husband and did not pay the premium herself. There was-little reason fdr holding it to.have been a loan. The relation of the wife to that policy was that she held the legal title toi the policy. It was a coni tract between the company and the wife, the husband acting merely -as her agent. Thiswas held in Whitehead v. New York Life Ins. Co. (102 N. Y. 143) and has never -been questioned. The wife furnished! this seventy-six dollars, therefore, to her agent to pay a premium upon ■her own policy, and that would hardly have constituted a loan by her to het husband.. It is, however, of no consequence whether the money was that of thé wife or the husband when it was paid upon the policy. It was not the .money of the defendant anyway, and! the defendant was not, therefore, in any event. entitled to the pro-! portionate share in the fund arising from that policy based upon that payment. Every payment of premium made on that policy, which was not from the money of the defendant, inured to the benefit ■ of the wife, and in the accounting with reference to and distribution of the. fund arising from that, policy, she was at. least entitled to the; proportionate share based upon such payment.
The case of Holmes v. Gilman (supra) is certainly authority for the proposition that where all the premiums have been paid from; trust moneys, the eestmi que trust is entitled to the whole insurance!' fund. "When, however, a part of the premiums -only has been paid . from trust moneys,-a different question is presented. -In-such case; where. the first ¡premiums -paid, when the policies,- had their legal inception, were made from the trust moneys the inception of the policies and the legal title of the wife thereto would be infected with the improper use of trust moneys, and the rights of the; wife; would, from the very first, be subject and subordinate to the equities
We are-not at all satisfied with the findings of the referee upon the evidence before him , The defendant had the burden of proving that the payments of premiums upon the policies were made from stolen moneys; and we do not think the evidence was- such as té authorize the finding as to the first premiums on the two policies, and as to several others that they were made from moneys embezzled and stolen from the defendant company. Nor do we think the defendant company showed itself entitled to claim the benefit of any moneys used in the payment of premiums which had been embezzled and stolen from the old firm. We refrain, however, from discussing the facts or the evidence given on the first trial, because we do not desire in any way to interfere with a full and fair investigation of the facts upon the new trial which must be ordered before a new referee. The new referee should, upon such evidence as is produced before him, determine, as to the various premiums paid upon these two policies, which ones were paid from moneys embezzled and stolen from the defendant, and which from moneys embezzled and stolen from the old company; and as to the moneys of the old company, what right, if any, the defendant acquired therein. These facts the new referee 'should determine without reference to, and without being influenced by, any determination made by the referee on the ..first trial.
The judgment should be reversed and a new' trial ordered before- : ■a new referee* to be named in the order, with costs of this appeal to abide event. ' ■,
.Yak Brunt, P. J., Rumsey, Patterson- and Parker, ' JJ., concurred.
Judgment reversed, new trial ordered before a new referee,.-to be \ named in the order, with costs of this appeal to the appellant to. .! ubide the event. ' •