72 N.Y.S. 328 | N.Y. App. Div. | 1901
This action is to determine which party is entitled to the proceeds of a policy of life insurance paid by the insurance company to a trustee to abide the event. Halliwell took out the policy in 1876 for $5,000, payable upon his death to his legal representatives. In 1886 Halliwell duly assigned the policy to Hester, his wife, her executors, administrators and assigns. ■ Hester died intestate owning the policy. Baker, her administrator, surrendered the policy to the insurance company in consideration of a paid-up policy for $1,628, payable to him as administrator, or to his successor. Baker, as administrator, assigned the paid-up policy in 1886 for $300, and through several similar assignments the policy is held by the defendant. Baker died, and was succeeded as said administrator by this plaintiff and by the husband of Hester. The assured died in 1900, and both the plaintiff, as sole surviving administrator of Hester, and the said defendant, by virtue of the said assignment of the policy by Baker and the successive assignments based thereon, claimed the insurance moneys. The plaintiff contends that the first assignment of the policy by Baker, as administrator, was fraudulent and collusive, invalid, without consideration and ultra vires. The learned Special Term decided against the plaintiff, who now appeals.
The policy is regarded as “ a chose in action with all the ordinary incidents belonging thereto, and as such may be assigned either as collateral or absolutely as the payee may elect.” (Steinback v. Diepenbrock, 158 N. Y. 24, 30.) The policy was payable to Hester, her
In Whitehead v. New York Life Ins. Co. (102 N. Y. 143), cited by the appellant, the policies were with' the wife as the party assured, the contract was said to be “ about the husband but not with him,” and the wife was held to have a vested interest in the policies at the moment of their delivery, so that the husband could not surrender the policy to the company without her consent, and his act in so doing .was not within his power. Butin the case at bar the contract was with the husband, who subsequently assigned to the wife, her executors, administrators and assigns, and upon her death the title vested in her administrator.
It is objected that the assignment by Baker, as administrator, to Bedell, being without the assent of the husband, was in violation of the provisions of chapter 248 of the Laws of 1879, which reads as follows: “All policies of insurance heretofore or hereafter issued within the State of New York upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the State, shall be, from and after the passage of this act, assignable by said wife with the written consent of her husband, or in case of her death by her legal representatives, with the written consent of her husband, to any person whomsoever, or be surrendered to the company issuing such policy, with the written consent of the husband.” I think that the statute does not apply. The original policy in this case was not issued'upon the life of the husband for the benefit of his wife, but for the benefit of his legal representatives, which must be taken to be his executors and administrators. (Geoffroy v. Gil
The judgment appealed from must be affirmed, with costs.
Goodrich, P. J., Woodward, Hirschberg and Sewell, JJ., concurred.
Judgment affirmed, with costs.