13 N.Y.S. 347 | N.Y. Sup. Ct. | 1891
It is claimed that the appellant, Malvina A. De Mets, having survived her father, Maltby G. Lane, as well as her mother, became entitled at his death to the whole of the moneys under the policies in question. It is not doubted that Elvina A., the wife of the insured and mother of the defendant, did not take a vested interest in these moneys, her right to them depending upon the contingency of her survival of her husband. It is apparent from the provision in the policies that such money was to be paid to her if living, which meant living at the time of the death of the insured, at which time the policies matured, and not before. According to the terms of the policies, if the wife of the insured was not living at the time of his death, the amount of the insurance was to be paid to the children of the insured, or their guardian for their use • and, if there were no such children surviving, then it was to be paid to the executors, administrators, or assigns of the insured, i. e., to the executors, administrators, or assigns of Maltby G. Lane. From this phraseology the conclusion seems to be inevitable that the children of the insured had not, nor had either of them, a vested interest during the life of the insured, it being expressly provided by the policies that if there should not be any surviving children of his the insurance money should go to his executors, administrators, or assigns. It was a provision that was exclusively for the children of the insured who should survive him, and not for his grandchildren, —a result conclusively indicated by the declaration that in case there were no surviving children it should be paid to the representatives of his estate or assigns, and the absence of any provision for the payment of it or of any part of it to the personal representatives of a deceased child. It is contended on the part of the appellant that by the well-settled principles of construction in analogous cases these insurance moneys, if they become payable to the children of the insured, would be payable to them as a class, and those of the class would take it who were in being when the policies became payable. This proposition would necessarily include after-born children of the insured of his second wife, if there had been any, as participants of the fund. In a case in which a legacy of £2,000 in equal shares was given to the children of a deceased sister of the testator, of whom there were three at the date of the will, but one of whom had died in his life-time, it was held that the two survivors were entitled to the whole sum. Viner v. Francis, 2 Brown Oh. marg. p. 658. See, also, Doe v. Sheffield, 13 East, 526. This rule is recognized and approved by the court of appeals in U.S. Trust Co. v. Mutual Benefit Life Ins. Co., 115 N. Y. 152, 21 N. E. Rep. 1025, and in Downing v. Marshall, 23 N. Y. 374. Independently, however, of this rule, a proper construction of the language employed in the policy which embraces the subject under consideration removes all doubt that by the words “surviving children” the insured meant “his children only who should survive him.” The construction contended for on behalf of the plaintiff, if the appellant had not survived the insured, would have made the moneys under consideration payable to her personal representatives, and not to those of the insured, as expressly provided for in the policies, in ease there should be none of his children surviving. The adjudications upon which the plaintiffs depend are not applicable to the facts and circumstances of this case. In Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. Rep. 267, the policies were issued in consideration of a sum stated paid by the wife of the insured, and the amount of the policy was to be paid to her or her personal representatives. In one of the policies it was specified “that in case she died before the insured the insurance should vest in the heirs of the insured, ” and in one of the other two policies in ease of such death the insurance was to vest in his children. In U.S. Trust Co. v. Mutual Benefit Life Inst Co., 115 N. Y. 152, 21 N. E. Rep. 1025, the policy was issued on the
All concur.