
    Patrick E. Walsh, App’lt, v. The Mutual Life Ins. Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed May 24, 1892.)
    
    Insurance (life)—Policy in favor of wife and children.
    A policy on the life of a husband provided for payment to the wife “ if living, in conformity with the statute, and if not living, to her children and their guardian, etc.” Bessie, a daughter, died intestate leaving a husband and children; then the wife died; then Solomon, a son, died leaving a widow and children, and finally Traub, the assured, died, leaving Carrie, a daughter, alone surviving. Held, that upon the death of the wife, her children living at that time became vested with every right to and interest in the policy to the exclusion of the representatives of the child who died before the mother.
    Appeal from judgment of the supreme court, general term, third department, reversing interlocutory judgment overruling defendant’s demurrer to complaint
    
      F. M. Danaher, for app’lt; Julien T. Davies, for resp’t
    
      
       Reversing 39 St. Rep., 710.
    
   Gray, J.

The complaint sets forth the issuance by the defendant of a policy of insurance, whereby it insured the life of Traub for the sole use of his wife Rica, in a sum named, and "promised to pay the amount to her, as the assured, “ if living, in ■conformity with the statute, and, if not living, to her children or their guardian, etc.” It further showed these facts, namely, that at that time the Traubs had three children living. Bessie, a daughter, died first, intestate and leaving a husband and children; "then the wife died; then Solomon, a son, died, intestate and leaving a widow and children; and, finally, Traub died. Carrie, a daughter, alone survived, and one-third of the policy was paid by the company to her. Another third was paid to the administratrix of Solomon, who had died intermediate his mother and father. The plaintiff took an assignment from Carrie and from .Solomon’s administratrix of their interest in the policy and claims, as their assignee, to be entitled to the remaining one-third of the policy. The defendant demurred to the complaint for insufficiency ■of facts to constitute a cause of action and the question presented is, did Bessie, the first child who died, have such an interest in this policy as survived her decease and, upon her mother’s death, vested in her personal representatives; or did all interest in the (policy, upon the death of the wife of Traub, vest at once in the two children surviving her? Another aspect of the question which the plaintiff presented is this: assuming that all interests settled in the two surviving children, upon their mother’s death, was it, nevertheless, conditional upon their both surviving their father; so that by Solomon’s death his interest was lost and Carrie, who survived all, had the sole claim to the insurance moneys ?

At the special term the judgment went for the plaintiff; but. at the general term the decision was the other way; and. two of the learned justices thought that Bessie, who had predeceased her' mother, had an interest in the policy, which, upon her death, passed to her personal representatives. We feel constrained to-differ with the learned general term justices and to uphold the-plaintiff’s appeal. If we were at liberty to treat of this question at first hand and as altogether an original one in this court, I should say that the arguments to sustain the judgment of the general term are cogent and not easily overcome. Certainly they have a moral support in equitable considerations. But if we. are to be guided in the disposition of the cases which come before us by the principle store decisis, then we must adhere to-views which have been held and assented to within recent decisions. In the case of the United States Trust Co. v. The Mutual Benefit Life Insurance Co., 115 N. Y., 152; 24 St. Rep., 1, the plaintiff sued as the guardian of certain grandchildren of the assured. The policy was upon the life of Finn for the sole use of his wife and, in case she should die before him, the amount was-payable to their children, or to their guardian. The wife first died and their three children survived her, but two of them predeceased Finn, their father. The plaintiff claimed that the children of a child who had died after the mother were entitled to receive among them an equal one-third of the policy. The decision was against their right to take anything under the policy. It was held that as grandchildren were not named in the contract, for that reason they could not be regarded as having been assured. Judge Earl, in the opinion, with respect to the nature of the interests which settled in the assured under such a policy, spoke in such wise as to cover this case. He said: “ When she (referring to Mrs. Finn) died before her husband, the only persons inter- . ested 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.”

This expression seems very authoritative, for although the-question presented and decided was whether grandchildren could acquire any interest, and although all the children in that case happened to survive the wife, nevertheless, the learned judge passed upon the nature of the interest of the children in such a policy, and used very precise and exclusive language in that respect. With that opinion all the members of the court concurred. While referring to the opinion in that case, I may add that the-concluding remarks of the learned judge need not embarrass our conclusion here. He said: “ If we are wrong in this construction * * * then * * 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.” That was. not the decision, and it was not intended to be the expression of an opinion upon the case, otherwise than that in no event could grandchildren take, inasmuch as, upon an assumption that the court was in error in what had been held, the only alternative was. the proposition stated. It was at once illustrative of the unsoundness of the plaintiff’s claim, and, at the same time, reasoning ele-. duetively, in further exclusion of the possibility of any interest having vested in the children at the time the policy issued. Previously, in Anderson v. Goldsmidt, 103 N. Y., 617; 4 St. Rep., 286, the same judge had delivered the opinion of the court; a case where wife and husband had joined in an assignment of a policy issued in her favor, and, in case of her death before him, making the amount of insurance payable to her children. The wife defended against the suit of the assignee on the ground that she was a married woman, with children having an interest in the policy. The plaintiff’s recovery was upheld, and it was there said that the interest of the children was contingent, and that the contingency did not arise which gave them any interest whatever in the policy. We have, therefore, in these two recent cases, authoritative opinions that children have none other than a contingent, interest in a policy issued in such a case, and do not become' actually vested with an interest unless the wife die before the termination of the life insured against and they survive her; and, as the contract then is one with her children, only those who answer at that time that description acquire an interest in the policy. Only in such an event would there arise a distinct class of beneficiaries under the contract of insurance.

Some stress is laid upon the remarks of Judge Pinch in the-case of Whitehead v. The New York Life Insurance Co., 102 N. Y., 143 ; 1 St. Rep., 344, decided very shortly before the Anderson case. That was a case where the insurance was upon the husband’s life and in favor of his wife or her personal representatives, with a provision that in case she died before him the insurance should vest in the children of the insured. The wife died and the husband surrendered the policy to the company, in consideration of sums paid to him for the surrender. The children then sought to have the surrender set aside and the policies reinstated as subsisting obligations of the defendant company. Their action was sustained. Judge Pinch, in his opinion, speaks of the interest in the policy as one which was vested in the wife, “ and one also in the children.” What he meant, however, seems explained by his subsequent observation that it was an interest which vested in wife and children “ as the assured, under the provisions of the statute; ” referring to the act of 1840, Laws of 1840, chap. 80, which was passed as a provision for orphanage and widowhood, and authorized the issuance of policies insuring a man’s life in favor of his wife, and also to provide by their terms for the payment of the insurance moneys to children, in case of her decease before that of her husband. The opinion is not authority for the proposition that an interest vested in the children upon the issuance of the policy in favor of the wife, which could not be lost, or divested, by their death before their mother as the assured. It decided that, by force of the act of 1840, such a policy, in favor of the wife and, in case of her death, made payable to her children, vested an interest in the children, which, upon the happening of the contingency named, conferred upon them the rights of ownership, and without their assent it could not be surrendered nor released. That was the decision called for by the case before the court. In a certain sense, upon the issuance of the policy such an interest in, or right to, its continuance as an obligation did vest, or, more properly, enure to her children.

It did not vest in the technical sense of the term as it is used in connection with estates created under testamentary devises; but the interest was such as, when the contractual relation with the mother ceased by her death, they, who were her children, •could, by the terms of the contract with the company, as authorised by the statute, assert and enforce it for their protection, as substituted parties in the place of the first assured. That such a meaning is to be attached to Judge Finch's remarks seems evident from the fact that Judge Earl, in his opinion in the 'United States .Trust Company's case, supra, cites the Whitehead case as an authority, and had the opinion fresh in his mind when delivering the opinion in the Anderson case. In a case recently decided by the supreme court of Pennsylvania, where the policy was issued by a New York company, and was in favor of the wife, and, in case of her death, the insurance was payable to her children, the court construed the policy to be anobligation which made the insurance money payable to her, if she survived her husband, but, if she did not, it was payable to her children then living.”

That case was decided in 1889, the same year as was the Trust Company's case, supra, and seems a strong illustration of the force of the proposition as to the contingent nature of the childrens’ interest in the policy, in that it impressed itself similarly upon the minds of the members of the two courts.

I do not think there is any reason for, or that we should, resort to the rules which obtain in cases where the question relates to the vesting of estates created by will and depends upon the •construction of the language of the testamentary devise. A will is in no sense a contract and an insurance policy is. St. John v. Insurance Co., 13 N. Y., 31; Olmsted v. Keyes, 85 id., 593. In the endeavor to effectuate the intention of a testator, courts are .allowed a greater latitude of action within settled rules than when the subject of their consideration is a contract between parties. In the one case, courts will go far to avoid a construction which defeats an intention, apparent from a consideration of the-whole will and of the circumstances surrounding its making, that the issue of children who may have predeceased the testator, ■or an event mentioned for the determination of some suspension of the estate, shall share in a general provision for the testator’s family.

Presumptions of an intention that all who could naturally be regarded as objects of his regard are comprehended will be permitted to influence and guide construction, wherever possible without conflict with plain provisions in the will. .But, in the case of a contract, where the minds of the contracting parties have met and which is supposed to resume their purposes and to-contain their agreements, construction may not be so liberal as to-permit a departure from a precise and strict conformity with its terms, if compliance is possible. Mr. Story, in his work on contracts (§ 639) laid down this rule of construction: “ If its language is neither uncertain nor ambiguous, it is to be expounded according to its apparent import, and is not to be warped from the-ordinary meaning of its terms, in order to harmonize with uncertain suppositions, in regard to either the probable intention of the parties contracting, or to the probable changes which they would have made in their contract, had they foreseen certain contingencies.”

As a contract then, the provisions of this policy are to be construed as contracts ordinarily are construed. They should be read and enforced, if unambiguous, according to the plain meaning of the words used. This policy, in the respect we are considering, used clear and definite words. The defendant contracted with the wife of Traub and assured her thereby of a certain payment, in the event that she survived her husband; and the parties further agreed that, if she failed to live till then, the payment was to be made to her children, or their guardian. The ordinary meaning of the word children is indisputable and the more reasonable ambiguity to be supposed would consist in whether it was only that child, or those children, who should survive the father who would be entitled to claim payment under the policy. But this difficulty is removed by authority and upon reasoning. If others than her children were to benefit by the insurance, it was quite possible to write them into the contract; but here definite parties are named as substitutive beneficiaries. The instant the mother died, those who answered the description of her children became the parties assured by the policy. The personal representatives of the child who had predeceased the wife could not be substituted as parties to a contract which expressly describes “ children.”

At any rate, by parity of reasoning, if grandchildren in the Trust Company's case, could not take because not named in the policy, how can executors or administrators take if they are not named; and, upon the authority of those cases, which declare the interest of children to be contingent during their mother’s lifetime, how could the child who had predeceased Mrs. Traub have possessed an interest which she could transmit to her personal representatives and which they could assert under such a contract ? I think the conclusion must be reached that, upon the death of Traub’s wife, her children living at that time became vested with every right to and interest in the policy.

In the case supposed by one of the learned justices at the general term, of the death of all of the children before the mother and then of her predeceasing her husband, we have authority for suggesting that the obligation of the insurer would be enforceable by the personal representatives of the husband, if he had not administered upon it. Olmsted v. Keyes, 85 N. Y., 593. In such a case, if all the children had died before their mother, the interest in the policy would be solely in' her, and, upon her death, like any other chose'in action, would pass to her husband. If lie should not make any disposition of it with the company during his lifetime his personal representatives would have the right to administer upon it.

It is needless, however, to discuss or decide upon the supposed case. It is sufficient to say that such an obligation of the insurance company could not fail for the want of a payee, in any contingency that I can conceive of.

The views expressed lead to the conclusion that the judgment of the general term should be reversed and the judgment entered upon the interlocutory judgment at the special term should be affirmed, with costs at'the general term and in this court

All concur (Maynard, J., in result), Peokham, J., not sitting.  