33 N.Y.S. 911 | N.Y. Sup. Ct. | 1895
Lead Opinion
On the 23d day of May, 1874, the plaintiff issued its policy for $2,000 on the life of Alonzo H. Doty, which policy contained the following provisions, which are material for consideration on this appeal, for the purpose of determining who, if any, of the claimants were, at the time of the commencement of this action, beneficiaries entitled to the proceeds of this policy:
“This said sum insured to be paid at the office of said Go., in Hartford, Conn., to Josephine Doty (hereinafter called the ‘Assured’), wife of the said insured, within ninety days after due notice and direct evidence that the death of the said insured has taken place during the continuance of this policy, and within that period of any year for which period the premium shall have been actually paid, and not otherwise. In the event of any indebtedness to the company, either on the part of the insured or assured, then such sum only as shall remain in excess of such indebtedness shall become due and payable as aforesaid. And, in case of the death of the said assured before the decease of the said insured, the said insurance shall be paid, when*912 due, to their children, if any then living, or to their guardian, in trust, if they be minors. But, if neither said assured nor any such child shall survive said insured, then said insurance shall be paid to his executors, administrators, or assigns. * * * Eighth. That this policy may be converted into cash, at the option of the holder, at any time after the expiration of fifteen years from the date hereof, for the amount indorsed upon the back of this policy, corresponding to the age (nearest birthday) of the insured at the time of such conversion; provided that this policy shall have been first paid up by the payment of ten full annual premiums, as herein stipulated. Ninth. That no assignment of this policy shall be valid, unless made in writing indorsed hereon, and unless a copy of such assignment shall be given to this company within thirty days after its execution; and any claim against this company arising under this policy made by any assignee' shall be subject to proof of interest.”
On the 13th of April, 1894, the insured borrowed of the defendant Ann Healey $600, and gave a joint note of himself and the assured, Josephine, to Healey, for the same, and also delivered to her the policy in question, as security, which she has ever since retained. No assignment of the policy was made to her at that time, but on the 4th of April, 1890, Alonzo and Josephine executed and delivered to Healey a written assignment of all their right, title, and interest in the policy. On the 29th of October, 1886, Josephine and Alonzo executed an assignment of the policy to the defendants Peterson & Packer, reciting in the same an indebtedness to them of $1,130.65, for which sum on the same day they perfected judgment against the defendants Alonzo and Josephine. On the 1st day of November, 3886, Peterson & Packer gave the plaintiff written notice of the assignment of the policy to them. On the 24th of May, 1889, Healey notified the plaintiff, by letter, that the policy had been verbally assigned to her to secure a $600 loan; and on the 4th of April, 3-890,-she, by her attorneys, sent the plaintiff a copy of the written assignment of the policy to her on that day. On the 22d of October, 1891, Ann Healey commenced an action against the plaintiff to recover $740, in the complaint in which it is alleged that she “elects that the same be converted into cash.” On the 17th of November, 1890, an alleged guardian of the children of Alonzo and Josephine, all of whom were infants, forbade, by letter, the plaintiff from paying anything on the policy, either to Healey or Peterson & Packer, and therein asserted that the children of Alonzo and Josephine had an interest in the policy. None of the claimants under the policy have demanded that this policy be converted into cash, under the provisions of the eighth clause of the same, except the demand made by Healey in her complaint in the action brought by her against the insurance company. Alonzo H. Doty and Josephine Doty are still living, as are the children. The learned trial judge found that the title to this policy was in Peterson & Packer, who held the first written assignment from the insured and assured, and are entitled to exercise the option given by the policy to the holder thereof; that the assignment to Healey was invalid, and that she had no interest in the policy; that the children of the insured and assured have neither of them any interest in the policy, actual or contingent. By the judgment,' Ann Healey was perpetually enjoined from the further prosecution of her action against the plaintiff, and it directed
It is insisted on the part of the appellant Healey that this policy, by its terms, after the lapse of 15 years from its date, became payable in cash, at the option of the holder, and that by the delivery to her, without an assignment by the insured, as collateral to a loan, after 10 years from the date, she became the holder, and, as against all but the plaintiff, the assignee, in law, of the policy; and she insists that it does not lie with the other defendants to challenge her title on the ground that the policy, by its terms, required an assignment in writing. We think that that contention cannot prevail. She did not acquire possession of the policy by any written assignment, as required by the terms of the contract itself, but received the same only as a pledge, or collateral security of a loan made to the insured. Such transfer was, at most, only a pledge, and gave the pledgee, if any right, only a special property right in the policy, which would divest the interest of the assured. It was, at most, an agreement to give a lien to secure the payment of the $600. McFarland v. Wheeler, 26 Wend. 467; Bank v. Alcott, 46 N. Y. 12; McCaffrey v. Wooden, 62 Barb. 316-323.
Again, such transfer could not operate as a valid assignment by Josephine, one of the assured, for the reason that by chapter 248 of the Laws of 1879 she could not make a valid assignment of a policy on the life of the husband for her benefit without his consent in writing, during the .life of her husband. Smillie v. Quinn, 90 N. Y. 496; Baron v. Brummer, 100 N. Y. 376, 3 N. E. 474; Brick v. Campbell, 122 N. Y. 337, 25 N. E. 493. This policy was issued prior to the enabling act of 1879, and unless that act gave her power to assign this policy, she could not do so while her husband was living, she having at the time living children.
At common law, and by the act of 1840, and all subsequent acts down to the enactment of chapter 248 of the Laws of 1879, a policy on the life of the husband, for the benefit of the wife, was not assignable by her, where she had living children. The act of 1873 only authorized a married woman to make an assignment of such a policy with the written consent of her husband, when she had no-children living at the time. It will be observed, by an examination of all the decisions upon this subject, that the right to make such transfers has never been upheld, except where authorized by the-express terms of the statute. In discussing this question, Potter, J.,. in Brick v. Campbell, 122 N. Y. 343, 25 N. E. 493, uses this language:
“So strictly have the courts adhered to the enabling acts passed by the legislature upon the subject of such policies, that they-have refused to regard the general enabling acts in relation to married women and their separate property as having any reference or application to such policies.”
Independently, then, of the requirement of the policy itself that the transfer must be in writing, it seems quite apparent that no,
It is insisted by the learned counsel for Peterson & Packer that, under the provisions of chapter 248 of the Laws of 1879, the wife who is named as beneficiary in this policy is fully authorized to assign the same, with the consent of her husband, regardless of the claim of her children, as subsequent beneficiaries in the same policy. The provisions of that chapter are 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 he 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 the policy with the written consent of her husband.”
It is to be observed that this provision of statute makes no reference to policies for the benefit of children as well as for that of the wife. The policy under consideration provides for both these classes of beneficiaries. It is true that the policy provides that it may be converted into cash after 15 years, at the option of-the holder. But can the assignee of one of rhe possible beneficiaries, without the consent of the other possible beneficiaries, be deemed the holder, as against the rights of the latter? The death of Josephine before the assignlnent would have devolved the benefits of this policy on her children, if her husband were at that time living. It is difficult to see how any greater right could attach to
“The mere fact that she had children at the time of making the assignment did not render the assignment void. The statute, whether there be children or not, gives the wife, with the consent of her husband, the absolute*916 power to assign or surrender the policy. It is quite true that the children had a contingent interest in the policy, which would have become vested in case the wife had died before the policy matured. But here she survived that period, and hence the contingency did not arise which gave the children any interest whatever in the policy.” ■
It will be seen, in the case from which the above quotation is made, that the whole case turned upon the fact that the wife survived the period at which the policy absolutely matured, to wit, May 31, 1885, when her rig'ht became absolute, and all possibility of a devolution of the benefits of the policy upon the children ceased. The policy under discussion in the case at bar matures and becomes payable at the office of the company within 90 days after notice of the death of the insured. Clearly, the rights of the beneficiaries named in the policy cannot be fixed or known until the death of the insured. That period has not yet arrived, and until it does, in the language of Judge Earle, “the children have a contingent interest in the policy, which would have become vested, had the wife died before the policy matured.” It follows, therefore, from the authority of Anderson v. Goldsmidt, referred to by the counsel for the respondents, that the children in this case have a cohtingent interest in this policy, which will become absolute if Josephine die before the insured. Nor does the expiration of 15 years, at which time the option of the holder to demand cash payment commences, constitute the maturity of the policy, so long as any contingency exists as to who shall be the ultimate beneficiary. It may be conceded that, if all contingency was removed, the person in whom the absolute right vests might, after the expiration of the 15 years, exércise the option. But, so long as the ultimate right to this fund remains unsettled, none of the contingent beneficiaries can exercise the option. But, as Peterson & Packer have not assumed to exercise the option, the question of their right to do so is not before us. If we are right in our conclusions above, the rights of the respective parties to the proceeds of the policy in question cannot be determined in this action. The right of Josephine to this money depends upon her surviving her husband. The right of Peterson & Packer depends upon the title of their assignor, which cannot now be determined. The right of the children of the insured depends upon the death of their mother before that of their father, all of which events are in the uncertain future.
It is also urged by the learned counsel for the appellants Doty that this action of interpleader cannot be maintained for the reason that the parties named as defendants are not all demanding the same relief or right, as against the plaintiff. The complaint alleges the issuing of its policy on the life of Alonzo H. Doty; sets out the policy, and some of the acts done under it; also sets up the claim made by Ann Healey to recover $740, the present cash value of the policy, and her election to accept that sum in full satisfaction for the amount of the same. The complaint also sets up the claim of Peterson & Packer as assignees of the policy. No claim to this, policy or fund by Starks A. Doty and Carrie E. Doty, infant children of the insured, was made, against the plaintiff; but a letter from
Concurrence Opinion
Story, in his Equity Jurisprudence, remarks, in reference to a bill of interpleader (section 806):
“It is properly applied in cases where two or more persons severally claim the same thing, under different titles or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the persons he ought to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He therefore applies to a court of equity to protect him, not only from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits which are, or possibly may be, instituted against him.”
I think, under the doctrine just stated, this action was properly brought. Each of the defendants claimed an interest in the policy of insurance described in the complaint. Each claimed under such policy. Peterson & Packer urged that they were its absolute owners; the defendant Ann Healey made the same claim; while the defendants Doty asserted that they were vested with a contingent interest in said policy, which, upon the death of Josephine Doty before the decease of her husband, would become absolute. Plaintiff admitted its liability under the policy in question to the legal owner thereof, either for the sum of $2,000 on the death of the insured, or for the sum of $740 when the action was commenced, if it should appear that such sum was then due under the option contained in the eighth clause of said policy. An action had been commenced by Ann Healey, who claimed to be the holder of the policy, to recover $740, under the provisions of the said eighth clause. Each of the defendants had served a notice upon plaintiff, forbidding the payment to Ann Healey of the sum claimed by her. When this action was commenced the plaintiff was placed in such a position that if Ann Healey should recover judgment, and it should be compelled to pay the amount of her claim, it might be subjected to other actions by the other defendants, and hence would be liable to a double recovery under the same policy.
I think, therefore, that the conclusion reached by the learned trial judge—that the action was properly brought for the purpose of protecting plaintiff from a multiplicity of suits, and. also from a double recovery—was correct. See Crane v. McDonald, 118 N. Y. 648, 23 N. E. 991. I am unablé to agree, however, with his conclu
It is claimed by the learned counsel for defendant Healey that, under the contract of insurance, Alonzo H. Doty must be deemed the “holder,” and entitled to convert the policy into cash, under the eighth clause thereof. If this position is correct, probably the delivery of the policy to defendant Healey by the insured in consideration of the loan of $600 might be effectual to transfer the same. Marcus v. Insurance Co., 68 N. Y. 625. In the case cited it was held that a life insurance policy could be transferred by a mere delivery, without an assignment in writing, although the policy, by its terms, requires a written assignment. If the insured, Alonzo H. Doty, was the “holder” of the policy, within the meaning of the eighth clause of the policy, that provision in the contract was entirely for his benefit, and he could transfer his separate interest in the policy alone, without his wife joining in the transfer; and, as to an assignment of his separate interest under the contract of insurance, the act of 1879 did not apply. Hence I am inclined to believe that ,if the position of the counsel is correct, that Alonzo H. Doty should be deemed the holder of the policy, his conclusion that the defendant Healey was entitled to maintain her action is also correct.
The question therefore arises, who was the holder of the policy? By it an insurance was effected for the benefit (1) of the wife, (2)
HEEEICK, J., dissenting.