Mr. Justice Musser
delivered the opinion of the court:
The plaintiff devotes considerable space in her brief to a discussion of the question of the power of Fannie Heller to assign the policy of insurance, and claims that, under the laws of New York, she had such right. It is not necessary to discuss this question. The defendant grants that she had the power and right to assign the policy. It seems that, by her complaint, the plaintiff claims that, by the assignment from the Hellers, she became vested with the absolute and unqualified ownership of the policy and all rights thereunder, and that, therefore, she is the owner of the paid-up policy, which she alleged was issued to her, and inasmuch as the defendant offered her $810.00 for this policy, which offer she accepted, she is now entitled to recover the money offered her; or, even if she was not the owner of the orig*465inal policy and all rights of action thereunder, the defendant, by its acts, is estopped to deny that she is such owner; and, lastly, if she is wrong in the foregoing claims, that she ought to recover $100.00 on account of an offer made to her at one time by the defendant, which offer appears in the record.
If the effect of the assignment of the policy by Mrs. Heller is as the plaintiff contends, then the rights of her children therein were entirely cut off. The contract of the company was, that, at the death of David Heller, it would pay the amount of the policy to Fannie Heller, if living, and, if not living, to her children. If there was no assignment, and the policy kept in force, Fannie Heller having died before David Heller, it is clear that the policy would be payable to her children upon the death of her husband. It is also clear that, if Mrs. Heller was living at the time of her husband’s death, the amount of the policy, if in force, would be payable to her, or if she had assigned it, to her assignee. The plaintiff contends that, by the assignment from Fannie Heller, the amount thereof, if in force, was payable to the assignee, in any event, upon the death of David Heller. The assignment could not have such an effect. The interest of Mrs. Heller in the policy was contingent upon her survival of her husband, and she could transmit no greater interest than she had. When she died, her husband still living, her interest and that of her assignee ceased, and all rights in the policy inured to her children. This is clearly and ably upheld in the opinion of the court of appeals above referred to, where so many authorities are cited that it is unnecessary to repeat them.
No further comment would be made on this branch of the case, were it not for the able brief and argument of counsel for plaintiff relative to certain statutes of the state of New York, which are set. *466forth in the complaint, and which were not before our court of appeals. The plaintiff maintains that the effect of the assignment of the policy by Mrs. Heller is to be determined by the laws of the state of New York. It need not be determined whether the laws of the state of New York or of Colorado ought to govern, for the reason that the laws are the same in effect.
By an act of 1840, a married woman in the state of New York was permitted to take out insurance on the life of her husband for any sum which she and the company might contract for. It was held that such policies were not assignable.—Eadie v. Simmons, 26 N.Y. 9" court="NY" date_filed="1862-12-05" href="https://app.midpage.ai/document/eadie-v--slimmon-3592195?utm_source=webapp" opinion_id="3592195">26 N. Y. 9. It appears, from the complaint, that, by an act of 1873, a married woman in New York was enabled to assign a policy upon the life of her husband, if she had no. children, and, by an act of 1879, she was given power to assign a like policy, in any event, with the consent-of her husband. These were simply enabling statutes; they were intended to enable a married woman to do that which she-'theretofore had no power to do. Nowhere in these statutes is any power given to a married woman to assign the interest of her children in any policy. It was said, by Putman, J., Travelers Ins. Co. v. Healey, 33 N. Y. Supp. 919, that the law authorizing a. married woman to assign such a policy with the written consent of her husband, contains no authority for her to assign the interest reserved to her children by the express terms of the policy. No case' from New York is cited, nor are we able to find any, in which it is held that the assignment of such a policy as the one set forth in the complaint bars the express rights of the children therein. Speaking of such a policy, payable to one Mrs. Finn, if living, at the death of her husband, if not living, to her children, the New York court of appeals said: *467.“If Mrs. Finn survived her husband, the sum mentioned in the policy was payable to her. When she died before her husband, the only persons interested in the policy were her children then living, and the whole policy,-as a chose in action, belonged to them. They held vested interests therein, as they could in any other chose in action payable at a future time."—U. S. Trust Co. v. Mut. Ben. L. I. Co., 115 N.Y. 152" court="NY" date_filed="1889-06-11" href="https://app.midpage.ai/document/united-states-trust-co-v-mutual-benefit-life-insurance-3606125?utm_source=webapp" opinion_id="3606125">115 N. Y. 152. Mrs. Heller’s assignment, at most, passed her interest in the policy, which ended with her death. She died before her husband. In such event, the policy, by its express provisions, was payable to her children. The latter, and not her assignee, would be entitled to receive the amount of the policy, were it in force at the death of Mr. Heller.—Knickerbocker L. Ins. Co. v. Weitz, 99 Mass. 157" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/knickerbocker-life-insurance-v-weitz-6415304?utm_source=webapp" opinion_id="6415304">99 Mass. 157. The case of Anderson v. Goldsmidt, 103 N.Y. 617" court="NY" date_filed="1886-12-17" href="https://app.midpage.ai/document/anderson-v--goldsmidt-3603145?utm_source=webapp" opinion_id="3603145">103 N. Y. 617, does not sustain the contention of plaintiff. In that case, there was an endowment policy, payable to Mrs. Goldsmidt in 1885, or, upon the death of Mr. Goldsmidt, should he die before that time. The policy provided that, in case of the death of Mrs. Goldsmidt before her husband, the amount of the insurance should he payable to her children. Mr. and Mrs. Goldsmidt assigned the policy to Anderson. It matured in 1885, while Mrs. Goldsmidt was living. In such a case, if she had not assigned the policy, all rights therein would have been hers, and the court held that her assignee was entitled to collect the policy. In the present case, if Mr. Heller had died and Mrs. Heller had survived him, the policy being in force, her assignee would certainly have the entire interest in the policy, hut no such case is presented here.
Plaintiff claims that it appears by her complaint that the defendant is estopped from denying that she has any interest in the policy, or to set up ownership in the children. An estoppel of the nature of the one *468contended for by plaintiff arises only when the conduct of the party estopped is fraudulent in its purpose or unjust in its results.—2 Herin. Est., § 731. What defendant did with respect to the paid-up policy and the surrender, value, was certainly not fraud- ' ulent in its purpose. Was it unjust to plaintiff ? Was plaintiff thereby induced to give up anything, or to change her position to her detriment? She had in her possession an insurance policy in which, we have seen, she had no interest. The defendant did not induce her to buy this policy. She ought to have known that it was of no value to her, unless Mrs. Heller survived her husband, and the policy was kept in force. Furthermore, before she sent the policy to the defendant, default had been made in the payment of the premiums, and, by the express terms of the policy itself, it had ceased and determined on account of the nonpayment of the premiums. This was not brought about by any act of the defendant. There was no provision in the policy, nor in any contract alleged, whereby the defendant agreed to issue a paid-up policy or pay cash for the surrender of this original policy. Whatever it did do in this behalf, was done voluntarily and without any consideration. What if it did write a paid-up policy? It was under no obligation to do so. The plaintiff paid no consideration therefor. The surrender to the defendant of a lapsed policy in which the plaintiff had no interest, was no consideration. The defendant never delivered any paid-up policy to the plaintiff. If such a one was written, it does not appear, from the complaint, to whom it was payable. We can not presume it was payable to the plaintiff, in any event.. If any presumption is to be indulged, we must presume that the paid-up policy was payable the same as the original one—that is, to her children, if Mrs. Heller died before her hus*469band. Plaintiff would have no interest in this paid-up policy. What if the defendant did say it would pay $810.00 for the paid-up policy, which, it appears, was never delivered to the plaintiff? There was no provision in the original policy that it would do so, and, so far as appears from the complaint, there was no such provision in the alleged paid-up policy. The offer of defendant to pay $810.00 was an offer to make the plaintiff a gift of that amount. It therefore appears that the plaintiff, when she began negotiations with defendant, started with nothing, afterwards gave up nothing, and, for this, now claims that the defendant should pay her $810.00. Is it unjust for the defendant to say that it will not give up $810.00 for nothing?
With respect hr the claim of plaintiff on account of the offer of $100.00, referred to in the complaint as appearing in the record, it appears that, on March 18, 1899-, the defendant served upon the plaintiff an offer to allow plaintiff to take judgment for $100.00 and costs. Plaintiff- did nothing toward accepting this offer until after the case had come from the court of appeals. Section 281 of our Code of Civil Procedure provides that the defendant may serve upon plaintiff an offer to allow judgment. If plaintiff accepts the offer and gives notice thereof within five days, he may do certain things and have judgment entered. If the notice of acceptance be not given, the offer shall be deemed withdrawn. In this ease, the notice of acceptance was not given as required by the Code, and the offer is deemed withdrawn.
It appearing that plaintiff cannot recover on her complaint, the judgment of the district court will be affirmed. ' Affirmed.
Chief Justice Steele and Mr. Justice Campbell concur. Rehearing denied.