
    Hurlbut v. Hurlbut.
    
      (Supreme Court, General Term, First Department.
    
    June 19, 1888.)
    1. Insurance—Assignment of Policy—When Assignee’s Interest Vests.
    Where the holder of a life insurance policy executes a formal assignment of all his interest therein to plaintiff at the office of the company’s agent, and it is forwarded to the company, and a copy kept there and filed, and it is returned with an indorsement that, if canceled, it is to be returned to the company, and the policyholder notifies plaintiff of the assignment, and that he has attached it to the policy, the interest in the policy vests in the plaintiff, and she can recover from the company on the death of the assured, though the policy and assignment have not been delivered to her.1
    IAs to the proper method of effecting an assignment of a life insurance policy, and a change of beneficiaries named therein, see Lament v. Legion of Honor, 31 Fed. Rep. 177, and note; Wendt v. Legion of Honor, (Iowa,) 34 N. W. Rep. 470; Grand Lodge v. Child, (Mich.) 38 N. W. Rep. 1; Association v. Montgomery, (Mich.) 38 BT. W. Rep. 588.
    3. Same—Prior General Assignment for Benefit of Creditors.
    In such a case, though the assured had, before the assignment, made a general assignment of all his property for the benefit of creditors, but had never delivered or assigned the policy to his assignee, and had continued to pay the premiums until his death, his administratrix cannot object that the interest in the policy passed to the assignee for the benefit of his creditors, and not to plaintiff.
    3. Same—Assignment of Policy in Fraud of Creditors—Question for Jury.
    An administratrix cannot request the court to -direct a jury to find that an assignment of a life insurance policy of her intestate was in fraud of creditors, under Laws 1858, c. 314, conferring on her power to impeach such an assignment, where the question of fact as to the fraud is not submitted to the jury, under 3 Rev. St. (6th Ed.) 145, § 4, declaring the question of fraudulent intent in such a case one of iact and not of law, and triable by a jury.
    On exceptions from circuit court, Hew York county; A. R. Lawrence, Justice.
    Blanche Hurlbut sued the Mutual Benefit Life Insurance Company to recover on the policy of R. W. Hurlbut, deceased, claiming as his assignee. The company paid the fund into court, and F T. Hurlbut, administratrix of his estate, was substituted as defendant. From a judgment in favor of the plaintiff defendant asked for a new trial, which was ordered to be heard at the general term.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      
      Albert Stickney, for defendant. James Parker, for plaintiff.
   Daniels, J.

The disposition of the action depended upon the title to a sum of money paid into court by the Mutual Benefit Life Insurance Company in satisfaction of a policy of life insurance issued by it to and upon the life of Richard W. Hurlbut. The policy was issued in the year 1845, for the sum of $3,000, payable to the assured, his executors, administrators, or assigns. He paid the premiums upon it until and including May, 1887, and he himself died in September of the same year. On the 10th of June, 1887, he executed a formal assignment of all sums of money, interest, benefit, and advantage to arise or be had by virtue of the policy to the plaintiff in this suit; and, in case of her decease prior to his own, then to another person, who, if he also previously became deceased, then the policy was directed to revert to the assured. This assignment was drawn and executed at the office of the agency of the company, and witnessed by its cashier. It was forwarded to the company, and a copy of it retained and filed, and thereupon it was returned, with the indorsement that, if the assignment should be afterwards canceled, the bolder should return it to the company. In August, 1887, and after the assignment itself had in this manner been returned to the assured, he wrote a letter to the plaintiff, who was his daughter, informing her of this assignment of the policy; and he stated in his letter to her that he had attached to the policy a document whereby, at his decease, the company would pay over to her the sum of $3,000, and which he stated might do her some good, and help her along in her struggle for bread.

A dispute arose between the plaintiff and the defendant, as the administratrix of the assured, as to which had the better right to the moneys paid by the company in discharge of its liability under the policy; and it was held at the trial, under this state of facts, that the title to the money had become vested in the plaintiff, and that she was entitled to recover it in this action; and upon the accuracy of this decision the disposition of the case is now mainly made to depend. What the assured intended to do, was to give the insurance, and the money resulting from it, to his daughter; he, in the meantime, designing to pay the premium, and keep the insurance in life. And, to create such a gift, it is beyond dispute the law of the case that a delivery of the assignment must have been made to the donee. Delivery is essential to a gift of personal property, and it must be such “as to vest the donee with the control and dominion over it, and to absolutely divest the donor of his dominion and control, and the delivery must be made with the intent to vest the title to the property in the donee.” Jackson v. Railway Co., 88 N. Y. 520, 526. In that case there was no such delivery to the testator, and because of its absence the action was not permitted to be sustained. The same principle was followed in Wallace v. Berdell, 97 N. Y. 13. But it is not necessary that the. delivery of the thing intended to be given should be made directly to the person intended to receive or be invested with the gift, but it may be made to another person for him or her, when that is done so as to divest the possession and title of the donor. Young v. Young, 80 N. Y. 422, 430. And what took place concerning this insurance seems to have been attended with that effect. Hutchings v Miner, 46 N. Y. 456. The assignment, so far as it was for the benefit of the plaintiff, was absolute, subject only to the contingency of her surviving her father, the assured, who was the assignor; and it was delivered to the company, intending to secure such action on its part as would recognize the right and title of the plaintiff to the money, and place the company under the obligation to pay it over to her upon the decease of the assured, unless the assignment should be afterwards canceled and returned. It appears to have been accepted by the company with that understanding, and with the intent to hold the money afterwards for the benefit of the plaintiff; and for the expression of that intent, after it had filed away a copy of the assignment, it made the indorsement which it did upon the original before it was returned. The assignor acquiesced in the action of the company which had been taken in this manner at his instance, and'informed the plaintiff of the transaction, giving her by the letter written to her by himself the right to look to and hold the company as her debtor for the payment of this money; and she accordingly ■ accepted the gift, and proceeded to enforce it, after the decease of her father, by supplying the usual proofs of death, and demanding of the company the payment of the money. More was done in this instance to confer upon her the title to the insurance money than was sanctioned as being attended with the like effect in the case of Martin v. Funk, 75 N. Y. 134. There the donor-made a deposit in a savings bank, declaring in the account that it was in trust for another person; and that was held to be equivalent too gift of the money by the depositor to the beneficiary There was not only the intention to make a gift of these moneys to the plaintiff, but the company, which was to be the debtor after the decease of the assured, was apprised of it, and placed in such a position as to be obligated'to pay it over to her, and she was informed of what had been done in this manner to secure to her the payment and benefit of the fund. The assignment, under this state of facts, may legally be held to have been delivered to the insurance company for the benefit of the plaintiff; and the effect of the delivery was not defeated by afterwards returning the assignment to the assignor, after the company had complied with what appeared to be essential to mature its obligation. As to this part of the case, the ruling at the trial appears to have the support of the law.

To defeat the right of the plaintiff to maintain the action, proof was given, under the answer, showing that a general assignment was made on the 11th of September, 1884, by a firm, of which the assured was a member. This assignment was not only made of the partnership property for the benefit of the firm creditors, but, in addition to that, it was declared that the assignors sold, assigned, delivered, and conveyed to the assignee all and singular their real estate and personal property of every kind and nature held and owned by them, respectively, as their separate and individual property; and under this assignment it was urged at the trial that the assured had become divested of his interest in the policy prior to bis assignment in 1887 to the plaintiff, and that she acquired no title whatever under that assignment. But the defendant was in no way connected with this assignment, or with the right or title of the assignee under it; and it did not appear that the policy of life insurance was ever passed over or delivered to the assignee, or in any manner claimed by him, but the probabilities of the case warrant the conclusion that it remained in the possession of the assured himself, and he paid the premiums upon it, which, by its own language, was indispensably necessary to keep the policy alive. In this manner, he had from time to time renewed it for his own benefit, subsequentffo.the time of the execution and delivery of the assignment. If that had not been done by the payment of the annually accruing premium, the policy would have ceased to exist, and become null and void. In this manner the assured continued the insurance himself after the time when the general assignment was executed and delivered, and he had secured to himself its benefit as an insurance upon his life by what had taken place after the general assignment was made, and which, if it had been omitted, would have voided the policy; and that gave him the right, certainly against the personal representative of his own estate, to assign the insurance to the plaintiff in the action, as he is already shown to have done. And the court, on this account, was right in overruling the objection that.the plaintiff could not maintain the action because of this preceding general assignment. In this respect, the cáse differs very materially from those which have been referred to in support of this objection, and required the plaintiff’s right to be maintained as superior to that of the general assignee.

It was shown at the trial that a large amount of the debts of the firm of which the assured was a member remained unpaid; and the right of the plaintiff to the insurance money was further resisted by the defendant under the authority conferred upon her as administratrix, by chapter 314 of the laws of 1858, to impeach and set aside the assignment of the insurance for the benefit of the creditors of the testator. And because he was insolvent, and gave the insurance to the plaintiff, it was claimed at the trial that his assignment was void as a matter of law, as made with the intent to hinder, delay, and defraud creditors. But there was no proof that he was actuated with that intent other than the presumption arising out of the facts of his insolvency at the time of the assignment. Prom that fact, however, and the donation of the money to the plaintiff, it might have been inferred, if the case had been submitted to the jury, that the assignment to the plaintiff was attended with this intent. But the court was not requested to submit this point to the jury. The counsel for each of the parties, on the contrary, regarded the case as dependent solely upon legal propositions; and, on behalf of the defendant, the court was asked to direct a verdict in her favor upon this and the other grounds which have been considered. That the court was not justified in doing, for the law has declared that the question of a fraudulent intent, in cases of this description, shall be one of fact and not of law, and therefore to be submitted to the jury. 3 Rev. St. (6th Ed.) 145, § 4. It would have been an infraction of this direction of the law for the court to have required a verdict from the jury on this ground, without submitting to them for their consideration the evidence concerning the facts. This exception, as well as the others, was not well taken. Neither was the exception to the direction of a verdict by the court after the defendant had presented all the points in the case to the justice presiding at the trial to be considered and decided by him. The motion for a new trial should be denied, and the plaintiff should have judgment on the verdict.

Van Brunt, P. J., and Brady, J., concur.  