Fowler v. Butterly

53 How. Pr. 471 | The Superior Court of New York City | 1877

Sandford, J.

Tinder and by virtue of the legislation of this state, in respect to insurance upon lives for the benefit of married women; the defendant acquired a contingent interest in the policy upon which this action was originally brought, and in the money to become due and payable thereon, of which, until the enabling act of 1873 (Session Laws, ch. 821) she could not divest herself by assignment or transfer (Eadie agt. Slimmon, 26 N. Y., 9; Barry agt. Equitable Ins. Co., 59 id., 587). The paper, therefore, to which her signature appears to have been subscribed, under date 13th of October, 1872, and which purports to assign all her right, title and interest in the policy to one Joseph E. McCormack, . was inoperative as an assignment of her right to receive from the North American Insurance Company the sum of $5,000, which, by the terms of its contract, it became liable to pay her upon the death of her husband during the period of the policy, provided she survived him. Her interests under this contract formed no part of her separate estate, and no power of disposing of them accrued to her by virtue of the “ married women’s acts,” so called. • The plaintiff, therefore, acquired no title to, or right to receive the funds in controversy, by virtue of that paper.

If, however, an assignment, duly executed by the defendant, could in law be deemed to pass the title which she had, the evidence establishes, beyond controversy, the fact that her signature was not affixed to the instrument purporting to be an assignment of her interest, voluntarily and without compulsion on the part of her husband.' On the contrary, it appears, and I must find as matter of fact, that she subscribed such pretended assignment without any knowledge of its purpose or purport, without any consideration passing to her for so doing, and without any intention, on her part, to divest herself of her property or rights; and that her signature thereto was procured from her by the exercise, on the part of her husband, of undue influence and control, amounting to compulsion. She testifies that if she signed the paper at all, of which, she has no recollection, though she admits the fact, she signed.it at the request and in the presence of her husband, and because she was “afraid to refuse.” He was-very self-willed, very determined, and not in the habit of consulting her in regard to his affairs. He did not consult her in regard to taking out the policy, and though neither promises nor actual threats were employed to induce her to part with her interest in it, the evidence warrants the conclusion that she did so while under marital' influence and constraint,' and not as her own free act.

The assignment, executed by the husband concurrently with that of the wife, operated, in my judgment, only to transfer the contingent interest which he had in the insurance money and his right to collect it, provided his life continued beyond the term or period for which it was insured, viz., “until the 6th day of September, in the year 1882.” The money was payable to him only on that condition. In case of his death before that time, it was payable to his wife- if living. The plaintiff and McCormack, his assignor, received the instrument and the documents purporting to transfer it, with full notice, from its terms, of the respective rights and interest of both husband and wife; and McCormack testifies that, although he knew the defendant, he had no negotiations with her in relation to this purchase; that he paid her no money and agreed to pay her none, and that the entire transaction was between himself and her husband. I am of opinion that, as between him and her, no equity arose or, can be invoked in his favor, except to the extent of premiums subsequently paid.

Judgment may be rendered directing payment to the plaintiff from the fund now in court of a sum equivalent to the aggregate amount of such premiums, with interest on each from the date of its payment, and declaring the defendant entitled to receive, and directing payment to her of the residue of such fund. Costs are allowed to neither party.