115 N.Y. 152 | NY | 1889
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *154
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *156
The policy was issued in this state and was a valid policy under chapter 80 of the Laws of 1840; and the sole matter for our determination is the construction and effect to be given to the language contained in the policy. The court below held that no portion of the policy was payable to the administrator of Mrs. Miles, but that one half thereof was payable to Caroline C. Finn, the surviving daughter of Mr. and Mrs. Finn, and the other half to the three grandchildren. We find no language in the policy insuring anyone but Mrs. Finn, and the children of Mr. and Mrs. Finn. 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. (Olmsted v.Keyes,
It is true that it was the purpose of the act of 1840 to enable a husband to make a provision for his family; but how that provision should be made was to be determined by the parties to the policy. The insurance could be for the benefit of the wife alone, in which case the amount insured would, upon the death of the husband, be payable to her if she survived; but if she died before him, it would then vest in and be payable to her personal representatives, and not to her children. So, too, the insurance could be made payable to a child, in which case, upon the death of the father, it would be payable to the personal representatives of the child if dead. Her grandchildren are not named, and their names cannot be put into the policy. *158 In the event that has happened, the policy might be construed and is payable precisely as if the children alone had been named therein. Therefore, when Mrs. Miles died her interest in the policy passed to her administrator as her personal representative and as part of her personal estate; and upon the death of Mr. Finn one-third of the policy was payable to the surviving child, one-third to the administrator of Mrs. Miles and one-third to the administrator of Mrs. Anthon. The children of Mrs. Anthon, as such, could have no standing to maintain an action to recover any sum due upon the policy. But even if they could, their full share has already been paid to them.
If, however, we assume that we are wrong in this construction of the policy, then, upon the death of Mrs. Finn, the policy was payable to her children as a class, and those of the class would take who were in being at the time when the policy became payable, and in no event could grandchildren be included in the class. In that case the whole policy would be payable to the only survivor of the class, to wit, Caroline C. Finn.
We are, therefore, of the opinion that the judgments of the General and Special Terms should be reversed, and that the defendant should have judgment upon the demurrer, with costs.
All concur.
Judgments reversed.