1 N.Y.S. 854 | N.Y. Sup. Ct. | 1888
The disposition of the action depended upon the title to a sum of money paid into court by the Mutual Benefit Life Insurance Company in satisfaction of a policy of life insurance issued by it to and upon the life of Richard W. Hurlbut. The policy was issued in the year 1845, for the sum of $3,000, payable to the assured, his executors, administrators, or assigns. He paid the premiums upon it until and including May, 1887, and he himself died in September of the same year. On the 10th of June, 1887, he executed a formal assignment of all sums of money, interest, benefit, and advantage to arise or be had by virtue of the policy to the plaintiff in this suit; and, in case of her decease prior to his own, then to another person, who, if he also previously became deceased, then the policy was directed to revert to the assured. This assignment was drawn and executed at the office of the agency of the company, and witnessed by its cashier. It was forwarded to the company, and a copy of it retained and filed, and thereupon it was returned, with the indorsement that, if the assignment should be afterwards canceled, the bolder should return it to the company. In August, 1887, and after the assignment itself had in this manner been returned to the assured, he wrote a letter to the plaintiff, who was his daughter, informing her of this assignment of the policy; and he stated in his letter to her that he had attached to the policy a document whereby, at his decease, the company would pay over to her the sum of $3,000, and which he stated might do her some good, and help her along in her struggle for bread.
A dispute arose between the plaintiff and the defendant, as the administratrix of the assured, as to which had the better right to the moneys paid by the company in discharge of its liability under the policy; and it was held at the trial, under this state of facts, that the title to the money had become vested in the plaintiff, and that she was entitled to recover it in this action; and upon the accuracy of this decision the disposition of the case is now mainly made to depend. What the assured intended to do, was to give the insurance, and the money resulting from it, to his daughter; he, in the meantime, designing to pay the premium, and keep the insurance in life. And, to create such a gift, it is beyond dispute the law of the case that a delivery of the assignment must have been made to the donee. Delivery is essential to a gift of personal property, and it must be such “as to vest the donee with the control and dominion over it, and to absolutely divest the donor of his dominion and control, and the delivery must be made with the intent to vest the title to the property in the donee.” Jackson v. Railway Co., 88 N. Y. 520, 526. In that case there was no such delivery to the testator, and because of its absence the action was not permitted to be sustained. The same principle was followed in Wallace v. Berdell, 97 N. Y. 13. But it is not necessary that the. delivery of the thing intended to be given should be made directly to the person intended to receive or be invested with the gift, but it may be made to another person for him or her, when that is done so as to divest the possession and title of the donor. Young v. Young, 80 N. Y. 422, 430. And what took place concerning this insurance seems to have been attended with that effect. Hutchings v Miner, 46 N. Y. 456. The assignment, so far as it was for the benefit of the plaintiff, was absolute, subject only to the contingency of her surviving her father, the assured, who was the assignor; and it was delivered to the company, intending to secure such action on its part as would recognize the right and title of the plaintiff to the money, and place the company under the obligation to pay it over to her upon the decease of the assured, unless the assignment should be afterwards canceled and returned. It appears to have been accepted by the company with that understanding, and with the intent to hold the money afterwards for the benefit of the plaintiff; and for the expression of that intent, after it had filed away a copy of the assignment, it made the in
To defeat the right of the plaintiff to maintain the action, proof was given, under the answer, showing that a general assignment was made on the 11th of September, 1884, by a firm, of which the assured was a member. This assignment was not only made of the partnership property for the benefit of the firm creditors, but, in addition to that, it was declared that the assignors sold, assigned, delivered, and conveyed to the assignee all and singular their real estate and personal property of every kind and nature held and owned by them, respectively, as their separate and individual property; and under this assignment it was urged at the trial that the assured had become divested of his interest in the policy prior to bis assignment in 1887 to the plaintiff, and that she acquired no title whatever under that assignment. But the defendant was in no way connected with this assignment, or with the right or title of the assignee under it; and it did not appear that the policy of life insurance was ever passed over or delivered to the assignee, or in any manner claimed by him, but the probabilities of the case warrant the conclusion that it remained in the possession of the assured himself, and he paid the premiums upon it, which, by its own language, was indispensably necessary to keep the policy alive. In this manner, he had from time to time renewed it for his own benefit, subsequentffo.the time of the execution and delivery of the assignment. If that had not been done by the payment of the annually accruing premium, the policy would have ceased to exist, and become null and void. In this manner the assured continued the insurance himself after the time when the general assignment was executed and delivered, and he had secured to himself its benefit as an insurance upon his life by what had taken place after the general assignment was made, and which, if it had been omitted, would have voided the policy; and that gave him the right, certainly against the personal representative of his own estate, to assign the insurance to the plaintiff in the action, as he is already shown to have done. And the court, on this account, was right in overruling the objection that.the plaintiff could not maintain the action because of this preceding general assignment. In this respect, the cáse differs very materially from those which have been referred to in support of this objection, and required the plaintiff’s right to be maintained as superior to that of the general assignee.
It was shown at the trial that a large amount of the debts of the firm of
Van Brunt, P. J., and Brady, J., concur.