
    Fannie Tepper, an Infant, by Harris Tepper, Her Guardian ad Litem, Plaintiff, v. New York Life Insurance Company and William M. Hoes, as Administrator of the Goods, Chattels and Credits of Morris Yorres, Deceased, Defendants.
    (Supreme Court, New York Special Term,
    February, 1915.)
    Insurance (life) — designation of beneficiary — Statute of Frauds — assignment of policy — change of beneficiary in fraud of assignee’s rights.
    Where one engaged to marry Fannie T. changed his policy of life insurance to designate “ Fanny, wife,” as the beneficiary under the policy there was sufficient designation of Fanny T as the beneficiary since she was unquestionably identified as the person intended to be designated in the policy as beneficiary, though she never became his wife. .
    In an action to cancel a designation as beneficiary in a life-insurance policy, it appeared that the insured agreed to name plaintiff as the beneficiary in consideration of her promise to marry him. Immediately after they had procured a marriage license and had agreed to execute a formal written engagement to marry, the insured changed the policy to designate plaintiff as beneficiary and delivered it and. the marriage license to plaintiff’s mother who gave them back to the insured with a request that he retain them for her. Thereafter the insured, after seducing plaintiff, changed the policy to designate his estate as beneficiary without the knowledge or' consent of plaintiff or her parents. A written engagement to marry continued until the insured died. Held, that the written evidence with all fair inferences to be drawn therefrom was sufficient to satisfy the Statute of Frauds.
    Under the rule that the Statute of Frauds cannot be used as an instrument to deprive a party of the benefits of a contract made in good faith, there was such gross fraud on the part of insured as took the case out of the Statute of- Frauds.
    The delivery of the policy to plaintiff’s mother in connection with other evidence in the ease constituted a valid assignment of the policy to plaintiff, and the subsequent change of beneficiary without the plaintiff’s consent was in fraud of her vested rights and ineffectual and an implied trust should be impressed upon the proceeds of the policy in her favor.
    Action to cancel a designation as beneficiary in a life insurance policy.
    Philip S. Glickman, for plaintiff.
    Frank W. Arnold (Samuel W. Tannenbaum, of counsel), for William M. Hoes, public administrator.
   Gavegan, J.

The action is to cancel a designation as beneficiary in a life insurance policy made by defendant-Hoes’ intestate and to have the proceeds of said policy paid to plaintiff. Morris Torres, the decedent, was the holder of a policy of life insurance for $1,000 with the defendant New York Life Insurance Company, in which policy as originally issued to Torres the beneficiary designated was his estate. In the latter part of September, 1913, Torres, a man thirty-five years of age, became acquainted with the plaintiff, a young woman, then nineteen years of age. In November, 1913, Torres approached one Cook, who was engaged to be married to an elder sister of the plaintiff, and requested said Cook to assist in bringing about a “ match ” between the plaintiff and himself. He asked Cook to tell the plaintiff that if she would consent to marry him he would name her as beneficiary in said life insurance policy. When Cook related this conversation to the plaintiff, she, after consulting her father and mother, consented to marry Torres provided he made over his insurance to her, which he agreed to do. On December 2, 1913, Torres and the plaintiff procured a marriage license. No definite date for the marriage ceremony was fixed at the time, but both agreed to have a formal written contract signed and their engagement formally announced on December 28, 1913, which was also to be the occasion of Cook’s marriage to the plaintiff’s sister. Immediately after securing the license, and"on the same day, December 2, 1913, Torres-went with the plaintiff to the office of the New York Life Insurance Company and caused the beneficiary of his policy to' be changed from his estate to “Fannie, wife.” On the following day, December 3, 1913, Torres called on plaintiff, and in the presence of her family and Cook delivered to plaintiff’s mother an envelope in which was contained the policy with the change of beneficiary indorsed thereon, together with the marriage license. Plaintiff’s mother requested Torres to retain them for her, as she had no safe place in which to keep them. Torres agreed to this and took the papers away. On the same day he seduced the plaintiff. On December 5, 1913, without the knowledge or consent of plaintiff or her parents, Torres caused the beneficiary of his policy to be changed back to his estate. Thereafter, and on December 28, 1913, a celebration of their engagement was held at which both plaintiff and. Torres signed and acknowledged a formal written engagement contract. It does not appear when the wedding ceremony was to be performed, but their engagement continued until February 20, 1914, when Torres died of typhoid féver. On applying for the insurance money thereafter the plaintiff learned for the first time that the béneficiary in the policy had been changed back to Torres’ estate. This action was then begun and the defendant New York Life Insurance Company pro7 cured an order permitting it to deposit the proceeds of the policy in court. The insurance company, therefore, has no interest in the result of this action. The contention of the defendant Hoes, as administrator, that the designation of “ Fannie, wife,” is not a proper description of plaintiff, because she had never married Torres, is not well founded since she was unquestionably identified as the person intended to be designated in the policy. Story v. Williamsburg, M. M. B. Assn., 95 N. Y. 474. The designation of plaintiff as beneficiary was clearly in consideration of marriage, and no formal memorandum of agreement to name her as beneficiary having been made by Torres, the defendant Hoes pleads the Statute of Frauds as a complete defense to plaintiff’s claim. Were it necessary to the decision in this case to determine whether such defense constituted a bar to plaintiff’s recovery, I should still hold that there was ample evidence to establish the contract, since the written evidence, with the fair inferences drawn therefrom, are sufficient, in my opinion, to satisfy the statute. But where such gross fraud is shown on the part of a decedent as in the present case, it would be against all principles of equity and good conscience to sanction the use of the Statute of Frauds by his representatives as an instrument of fraud to deprive a party of the benefits of a contract made in good faith. “ It doubtless is true that a verbal antenuptial agreement might, under special circumstances, be enforced in equity in order to prevent the party invoking the statute from perpetrating a fraud upon the other party, and this upon the ground that the statute is never to be so expounded as to make it a mere instrument in consummating a fraud upon the party against whom it is invoked. Smith Fraud, § 314; Livingston v. Livingston, 2 Johns. Ch. 537; Dygert v. Remerschneider, 32 N. Y. 629. The case at bar is similar to those wherein an applicant for a loan contracts with another person to take out a policy of life insurance and names such person as beneficiary therein, or where one advanced in years or in ill health contracts with another to provide for him until his death,' in consideration of which he agrees to name the other as beneficiary in his life insurance policy. The courts have invariably held in such cases that the designation of the person as beneficiary was founded upon a valuable consideration, and that no change of such designation is effective without the consent of the person named therein. Stronge v. Knights of Pythias, 189 N. Y. 346; Smith v. Nat. Soc. Benefits 123 N. Y. 85; Conselyea v. Supreme Council, 3 App. Div. 464, affd. 157 N. Y. 719; Webster v. Walsh, 57 App. Div. 558. In Stronge v. Knights of Pythias, supra, the court, at page 352, said: ‘ Irvine agreed he would procure the certificate to be issued designating appellant as beneficiary if she and her husband would establish a new home, take him with them and care for and nurse him in his sickness. The appellant performed her part of the contract and Irvine performed his so far as procuring the certificate to be issued was concerned, and the law now prohibits him from destroying the rights which appellant has acquired in the certificate for a valuable consideration. ’ ’ The contract between the plaintiff and Yorres was fully performed so far as it was possible. Mutual promises to marry were given, the plaintiff was designated as the beneficiary in the policy, and the marriage itself was only prevented by Yorres’ death, plaintiff being at all times ready and willing to marry him The acts of Yorres were deceptive and unconscionable. In accomplishing plaintiff’s seduction he took a base advantage of the relationship established by the contract. By secretly causing plaintiff’s designation as beneficiary in the policy to be changed three weeks before the engagement contract was signed he not only violated the confidence reposed in him by plaintiff’s mother when she allowed him, after he had actually delivered the policy, to retain it in his custody for safekeeping,, but he also committed a breach of trust and perpetrated a fraud. It appears that even before the engagement was solemnized he attempted to deprive the plaintiff of the very consideration which induced her to promise to marry him. These acts of Torres were such as to preclude this court from extending to his legal representatives any aid. They require rather the application of the maxim that equity considers done what ought to be done in order to carry out so far as possible the obligations of the contract. Tidd v. McIntyre, 116 App. Div. 602; If any doubt remained as to plaintiff’s right to the relief sought, it would be wholly removed, as it seems to me, by Torres’ delivery of the policy to plaintiff’s mother after designating plaintiff as the beneficiary therein. I am of the opinion that this delivery, taken in conjunction with the other evidence in the case, constituted a valid assignment of the policy (McGlynn v. Curry, 82 App. Div. 431; McNevins v. Prudential Ins. Co., 57 Misc. Rep. 608); that the attempt to thereafter change the beneficiary without the plaintiff’s consent was in fraud of her vested rights and ineffectual, and that an implied trust should be impressed upon the proceeds- of the policy in favor of the plaintiff. Goldsmith v. Goldsmith, 145 N. Y. 513. Judgment for plaintiff, but without costs, since the New York Life Insurance Company is only formally a defendant, and defendant Hoes is the public adminitrator. Submit proposed findings.

Judgment for plaintiff.  