253 A.D. 51 | N.Y. App. Div. | 1937
This action was orginally brought against the Massachusetts Mutual Life Insurance Company to recover on a life insurance policy issued by it on the life of plaintiff’s husband, .Samuel Greenfield. The other defendants were brought in by interpleader. The defendant insurance company has paid into court the amount of the policy and the action has been discontinued as to it. The action, therefore, has resolved itself into a contest between appellant, who was the original beneficiary under the policy, and the respondents, who were named in an attempted
March 14,1937, fell on a Sunday. On that day the insured, who then was in a hospital in New York city, executed an assignment to the respondents of all of his interest in the policy and a change of beneficiary which substituted the respondents as the new beneficiaries. On the motion for summary judgment the proof shows that the attorney who prepared the change and superintended its execution, did so at the request of the deceased. The change itself is in writing, witnessed and acknowledged. While the affidavits used in the court below are meager as to the exact circumstances surrounding the execution and delivery of the change by the insured, the attorney states that he made attempts to communicate with the insurance company both on the day of death and on the following day, to advise them of the change. Insured died some time after the execution of the change, but on the same day, Sunday, March 14, 1937. The attorney says that he reached the company by telephone on March 15, 1937, and notified it of the change. The record also contains a letter written on March 15, 1937, by the attorneys to the insurance company, stating that the change was executed at the hospital and insured died thereafter, that the attorneys have the original instrument of change of beneficiary in their possession and expect to get the policy within the next few days. Proofs of death were then sent by the insurance company to the attorneys with the request that they be executed and returned, together with the policy and the original instrument of change of beneficiary.
The right to' change the beneficiary with the consent of the company was reserved by the insured in the policy. He was clearly acting within this right when he substituted the respondents in the place of his estranged wife. Whatever rights she had before his death were contingent and revocable at his will. (Schoenholz v. N. Y. Life Ins. Co., 234 N. Y. 24.) The policy requirement that any change of beneficiary was to be with the consent of the company was for the benefit of the insurer only and it might waive it at will. (Rothstone v. Norton, 231 App. Div. 59; affd., 256 N. Y. 601; Donnelly v. Burnham, 86 App. Div. 226; affd., 177 N. Y. 546; Baley v. Prudential Ins. Co., 147 Misc. 488.) The rights of all parties became fixed and unalterable upon the death of the insured. (Fink v. Fink, 171 N. Y. 616; Schoenholz v. N. Y. Life Ins. Co.,
But we do not need to go as far as that in this case, although we ought not to hesitate to do so if it were necessary. Insured’s intent to change the beneficiary is undisputed and should not be defeated. Apparently after the execution of the change it was delivered to the attorney and the attorney gave notice of the change to the insurance company on the first business day thereafter which was as soon as it was possible for him to do so. Under instructions from the company the written change itself was not forwarded to the company until several days after the date of death, but it is apparent that the insured himself did all that he could while alive to effectuate the change and his intention should not be defeated because the attorney followed the instructions of the insurance company as to sending the change to it. When the insured executed the change and put it in the way of transmittal to the insurance company, he did all that was humanly possible for him to do because he was then upon his deathbed. He had thus completed all that was necessary or possible on his part to bring about the change.
The order and judgment should be affirmed, with costs.
Hill, P. J., Rhodes, McNamee and Heffernan, JJ., concur.
Judgment and order affirmed, with costs.