Anderson v. Goldsmidt — 4 N.Y. St. Rep. 286

Majority

p. 286

Thomas Anderson, ex’r, etc., of John Anderson, deceased, Resp’t, v. Barbara Goldsmidt, substituted as defendant, App’lt^[1]

(Court of Appeals,

Filed December 17, 1886.)

Headnote

1. Insurance (life)—Assignment of policy taken on life of husband for benefit of wife—Laws 1879, chap. 348.

On May SI, 1879, the G. L. Insurance Co. issued to B. G. an endowment policy on the life of her husband, payable May 31, 1885, or within sixty days after due notice and proof of his death should he die before that time. The policy provided that in case of her dying before her husband, the amount of the insurance should be payable after her death to her children. On February 15, 1881, B. G. and her husband united in a written assignment, signed by them, of all their right, title and interest in and to the policy to J. A. The policy having matured, the plaintiff as executor of J. A. began an action to recover the amount of the policy from the company, claiming under the assignment. An order was made substituting B. G. as defendant, and the money paid into court. Laws 1879, chapter 248, provide: “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 this state shall be * * * assignable by said wife, with the written consent of her husband. Held, that by uniting with his wife in the assignment he consented thereto in writing.'

3 Same—Contingent right of beneficiary.

Held, that the fact that .the wife had children at the time she executed an assignment, did not render her assignment void. The statute gave to the wife the absolute power to assign or surrender the policy. The children had a contingent interest in the policy, which would have become vested in case the wife had died before the policy matured.

James D.:Bell, for app’lt; C. L. By on, for resp’t.

On the 31st of May, 1810, the Germania Life Insurance Company issued to Barbara Goldsmidt an endowment policy upon the life of her husband, Joseph Goldsmidt, for $1,000, payable May 31, 1885, or within 60 days after due notice, and proof of his death, should he die before that time. The policy, among other things, provided that, “in case of the death of the said Barbara Goldsmidt before the decease of the said Joseph Goldsmidt, the amount of said insurance shall be payable, after her death, to her children, for their use, or her guardian, if under age; or, if she shall have no children, to her executors, administrators and assigns.” On the 15th of February, 1881, Barbara Gold

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smidt and Joseph, her husband, united in a written assignment, signed by them, of all their right, title and interest in and to the policy to John Anderson. The policy matured on the 31st of May, 1885, and, said John Anderson having died, the plaintiff, as his executor, began an action to recover the amount of the policy from the insurance company, claiming under the assignment of the policy to his testator. An order was made substituting Barbara Goldsmidt as defendant, and the fund was deposited in court. She answered, setting up that the assignment was void, because she was a married woman, with children having an interest in the policy, and because the assigmnent was not executed in conformity with the statute. A judgment for the plaintiff having been affirmed by the general term, the defendant has appealed .to this court, and attempts to sustain her appeal upon the two grounds mentioned in her answer.

.It is provided, in chapter 248, Laws 1819, that “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.”

Objection is made that there was not in this case, within the meaning of this statute, the written.consent of the husband to this assignment. But, by uniting with his wife in executing the assignment, he consented thereto in wilting, and it would be taking a very narrow view of the statute, quite inadmissible, to hold that the purpose of the statute was not fully answered by the execution of the assignment in that way.

The mere fact that she had children at the time she executed the assignment did not render her assignment void. The statute, whether there be children or not, gives • the wife, with the consent of her husband, the absolute 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. At the time of this assignment there was no law and no public policy which prohibited the wife from ássigniñg any interest which she had ,in the policy; and,by the. assign

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ment which she executed plaintiff’s testator became vested with the entire interest in the policy, and there is no defense to the plaintiff’s claim to the amount due thereon. The judgment should be affirmed.

All concur.