8 N.Y.S. 517 | N.Y. Sup. Ct. | 1890
This is a case in which the sympathy of the court must be in favor of the widow and children. But we ought not to be influenced by sympathy to give the amount to them because they need it, and because it will be a small sum to distribute among all the creditors. The simple question is, what does the contract of insurance mean? In the very brief testimony given, it is not stated to whom was payable the old policy, which was surrendered in 1879, when the present policy was issued; but, under the decision in Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. Rep. 267, we may infer that that was not payable to wife or children. If it had been, the insured could not have surrendered it, and without doubt, in that case, the new would in its language have followed that of the old. There are no circumstances which can aid in the construction of the policy, except the fact that, at the time when it was issued, the insured, who had previously been a
Landon, J., concurs. See post, 565. Fish, J., dissents. See post, 960.