23 N.J. Eq. 486 | New York Court of Chancery | 1873
A policy of insurance for $10,000 on the life of Louis 3)e Rouge, was issued March 5th, 1851, to Josephine his wife, by the Mutual Benefit Life Insurance Company. The premium, payable on the 5th of March in every year during the continuance of the policy, was $243. In consideration of the payment of these premiums, the company agreed to pay to the said Josephine the sum of $10,000 within ninety days after notice and proof of the death of the said Louis,
In June, 1871, the policy was assigned by the said Josephine and Louis to George A. Elliott as security for the payment of a large indebtedness then existing and lately created from Louis Le Kongo to Elliott. The assignment was under seal, signed by herself and husband, and was delivered with the policy to the assignee. In the following month of November Louis Le Eonge died, and the company, having been duly notified of such decease, was about to pay over to the assignee the amount due on the policy, when the complainant filed her bill, and an injunction was issued restraining such payment. The defendant Elliott has answered, and the cause has been argued upon its general merits on this motion to dissolve, there being no further evidence on either side to elucidate the case.
The question made by the pleadings and evidence relates solely to the validity of the assignment. The complainant insists that the assignment was illegal and invalid, and passed nothing to the defendant, for the following reasons :
First. Because the assignment was procured from the complainant under circumstances which amounted to duress.
The facts in regard to the execution of the paper are not disputed. Le Eonge was indebted individually to Elliott, as was also the firm to which he belonged. In February preceding, suits had been commenced against him ■ and against his firm, in one o£ which he had been held to bail. These suits were pending in June, when, at her husband’s request, the complainant assigned the policy. Her statement is that she was not then aware that her husband had been arrested ; she was aware that he was in great difficulty, arising out of his indebtedness to Elliott, She says he was in great distress of mind when he desired her to execute the assignment, and that to relieve him she did it. She says that she did not read it, and that it was not read to her, but she under
As a second reason why the assignment is invalid, it is said that the fund secured by the policy was not capable of being transferred by a married woman, even with the consent of her husband, because the fund itself, not being payable in the lifetime of the husband, is a reversionary interest belonging to the wife which cannot lawfully be transferred by the hnsband and wife so as to bar her right by survivorship.
The effect of an assignment by the husband, with the wife’s consent, of her reversionary choses in action, was held in Hornsby v. Lee, 2 Madd. 16, adversely to the doctrine on that point which seems to have been previously entertained. It was again similarly held and established in Purdew v. Jackson, 1 Russell 1, and the doctrine became settled, that in the case of reversionary rights, the assignment passed an interest in the chose in action sub modo, to become effectual only in the event of the husband and wife living long enough to enable the assignee to reduce the chose in action into possession.
As the husband’s assignment has no effect against the wife’s right by survivorship unless the chose in action is reduced into possession in his life, it follows that his assignment will be void when the fund cannot fall into possession
But the above principle is inapplicable to the present case, because the reversionary interest secured to her by the policy is her sole and separate property. It is made so by the fourth section of the act incorporating the company by whom the policy was issued, which act was approved January 31st, 1845, and also by the second section of the act for the better securing the property of married women, approved March 25th, 1852. To the separate estate of the wife the husband could not, before the last named act, assert the title which belonged to him in respect to her personal property in general, whether in possession or otherwise, and the wife had the power to dispose of such separate estate as if she were unmarried. This power of disposition belonged to her as well in case of her reversionary property as of property reducible to possession. Bright on Husband and Wife, Vol. II, pp. 220, 221, 222; 2 Story’s Eq., §§ 1389, 1390, 1393, 1394.
The operation of the above act of 1852 in enabling married women to dispose of their separate personal estate, though not of their real estate, is recognized in Naylor v. Field, 5 Dutcher 287. Where once a wife is permitted to take personal property to her own use as a feme sole, she must take it with all its- privileges and incidents, one of which is the jus disponendi. 5 Dutcher 288, and cases there cited.
Regarding this policy, therefore, as an obligation to pay money to the Avife after her husband’s death, although it be considered a reversionary chose in action, she has the poAAer to assign it, because she holds her interest in it to her sole and separate use. Nor is it material that her, interest is contingent on her surviving her husband. In that case the assignee Avoulcl take; othenvise not, but the fund AAmuld go to the children, if any, living at the husband’s death.
But it is said, thirdly, that the policy is not assignable, because the fund Avas created for the particular purpose of
The statute is as follows : 1. “It shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trustee, to cause to be insured for her sole use the life of her'husband, for any definite period, or for the term of his natural life; and in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance, shall be payable to her, to and for her own use, free from the claims of the representatives of her husband or his creditors; but such exemption shall not apply where the amount of premium annually paid shall exceed $100. 2. In case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable after the death to her children, for their use, and to their guardian if under age.”
The object of these enactments was not to give validity to a policy contract, which was previously unlawful; or, in other words, to save a policy to the wife on the life of her husband from being bad, as a wager policy, prohibited by the statute against gaming, or condemned by the general principles of expediency and morality. By the law of New Jersey, a life insurance policy was not so prohibited or con-
I cannot, therefore, regard the case of Eadie v. Slimmon as entitled to govern here. The contract in this case was made in this state, and mus't follow our laws. But it is further to be said, that the adjudications of other states are in conflict with the decision in Eadie v. Slimmon.
In Connecticut Mutual Life Insurance Company v. Burroughs, 34 Conn. 305, the assignee’s right was denied because the married woman who assigned died before her husband, and under the statute of that state similar to ours, and under a similar provision in the policy, the fund was payable to the children in the event of her death prior to the husband’s. But the principles of Eadie v. Slimmon were not concurred in, and the assignability of the qtolicy was recognized rather than denied, though of course dependent for effect on the survivorship of the wife.
In Knickerbocker Life Insurance Company v. Weitz, 99 Mass. 157, the wife who assigned died before her husband, and the assignee did not recover. The provisions of the policy seem to have been the same on this point with the provisions of the policy here, and it was held that if the assignment of the wife passed anything, it was at most her own interest, which ended with her death.
In Pomeroy v. Manhattan Life Insurance Company, 40 Ill. 398, a married woman assigned §600 of her policy of §5000 to secure a debt of her husband, and it was held that the policy being her separate property, she could pledge it, or part of it, as security for her husband’s debt, and the assignment was valid in equity, independently of the statute.
In Emerick v. Coakley, 35 Maryland R. 188, decided in 1872, the case of Eadie v. Slimmon was dissented from, and that of
My opinion is that upon authority and principle, the assignment in the present case must be sustained. It can make no important difference in favor of the complainant here that the insurance is not expressed to be payable to her assigns. The policy is a writing obligatory for the payment of money, and may be assigned at law, as well as in equity, without the word assigns.
I shall advise an order that the injunction be dissolved.