
    COURT OF APPEALS.
    Peane Brummer agt. Jacob Cohen.
    
      Insurance {Life)—Nonassignability of endowment policy upon life of husband for benefit of wife—Laws of 1840, chapter 277.
    An endowment policy on the husband’s life, payable on a certain date to the wife or her personal representatives, is within the act of 1840, and therefore subject to the rule of non-assignability. {Affirming 8. G., 58 How., 239.)
    
      Decided October, 1881.
    Action to compel the reassignment to the plaintiff of a policy of insurance on her husband’s life, which policy plaintiff had previously assigned to defendant as collateral security for a loan or loans of money to her said husband.
    The policy was issued by the Mutual Life Insurance Company of Uew York, May 12, 1868. In consideration of $687.30, recited to have been paid by Peane Brummer, wife of Aaron Brummer, and of the annual payment of a like amount on or before May twelfth in every year during the continuance of the policy, the company assured the life of Aaron Brummer in the amount of $10,000, and agreed to pay that sum to the said Peane Brummer or her executors, administrators or assigns, on the 12th day of May, 1883, or, should he die previously thereto, in sixty days after due notice and proof of his death, to her or.her executors, administrators or assigns.
    The premiums were changed from annual to semi-annual payments of $357.40, payable May twelfth and November twelfth in each year. This change was made on May 11, 1874.
    All the premiums were paid by the husband, as far as premiums were paid, in cash. At a certain period the dividends which the policy had earned were, by consent of the company, applied to the payment of premiums.
    There are children living of the marriage, and such children were in being at the time the defendant took the assignment from Mrs. Brummer.
    Two questions were litigated at the trial — the assignability of the policy, and whether all the advances intended to be secured by the assignment had been repaid.
    The court of common pleas, J. F. Daly, J., gave judgment for the plaintiff (see 57 How., 386), which was affirmed by the general term, Larremore, J. (See 58 How., 239). "
    
      A Bl/wmensbiel, for plaintiff.
    
      David Leventritt, for defendant.
   Andrews, J.

— This case is governed by the decision in Eadie agt. Slimmon (26 N. Y., 9). The contention that to bring an insurance by a wife upon the life of her husband within the operation of the act of 1840, it must appear from the terms of the policy, or must be shown by extrinsic evidence, that it was the intention of the assured to avail herself of the provisions of the act, cannot, we think, be maintained. The right of a wife to insure the life of her husband was not given by that act. She had, at common law, an insurable interest in her husband’s life (Reed agt. Royal Ex. Ass. Co., Peak Ad., Clas., 70 ; Lord agt. Dall, 12 Mass., 115 ; Loomis agt. Eagle Ins. Co., 6 Gray, 396 ; Connecticut Mut. Ins. Co., agt. Schaefer, 94 U. S., 457). The amount insured must necessarily be the measure of damage in ease of his death. The pecuniary interest of a wife in her husband’s life is incapable of exact measurement. The insured, by issuing a policy to the wife, agrees that her interest is at least equal to the sum insured, and the policy is in the nature of a valued policy, and the full amount insured is recoverable in case of death, without proof of actual damages.

Nor did the provision in the second section of .the act of 1840—that the insurance by a wife on the life of her husband may, in case of her death before the decease of her husband, be made payable to her children—confer any new power or authorize a contract which before the statute would be unauthorized. There does not seem to be any ground to doubt that before the statute a provision in a life policy issued to a wife on her husband’s life that in the event of her death before the death of her husband the policy should inure to the benefit of her children would be entirely valid and enforceable. But the act of 1840 did secure to the wife the sole benefit of an insurance on the life of her husband, procured by or for her and in her name, in case she survived her husband, free from any claim by him or his representative or by his creditors, subject to the limitation that the annual premium paid should not exceed a specified sum.

In this respect the act of 1840 is enabling and not declaratory. The act does not require that it should appear by the policy that it was issued under the act, in order that the insured should have the benefit of its provisions. There are no restrictive terms. The act is remedial and was passed for the benefit of married women and their children, and the intention of a married woman insuring the life of the husband to avail herself of its provisions is inferable from its beneficial nature. In Eadie agt. Slimmon, the policy did not refer to the act, although it might perhaps be fairly inferred that the parties had the act in view from the fact that it incorporated substantially the language of the second section, in providing for the payment of the insurance to the children in case of the death of the wife before the decease of her husband. But in Wilson agt. Lawrence, affirmed in this court (76 N. Y., 585), the policy made no reference to the act; nor did it make any provision for children. It was, aside from the endowment feature, substantially like the policy in this case. It was held that the policy was subject to the act of 1840, and unassignable within Eadie agt. Slimmon and other cases. The learned judge who delivered the opinion at general term, in considering whether the policy was subjected to the act of 1840, and in answer to the suggestion upon the subject that it made no provision for children, remarked that it did not appear that there were children of the marriage. But this circumstance seems to me to be immaterial where the question is as to the wife’s power to assign her interest. The act as amended expressly provides that the insurance may be made payable, in case of the death of the wife before the insurance becomes due, to the husband or to his or their children as may be provided (Laws of 1862, chap. 70 ; Laws of 1866, chap. 656). The omission to provide for the devolution of the fund or claim in the contingency of the wife’s death before the death of her husband, or, as in this case, the deliberate statement in' the application in answer to the question, For whose benefit is the insurance to be effected ? that it was for the benefit of the wife, and the striking out of the words “ and her children,” does not, we think, relent the presumption that the wife, in taking the policy had in view the act of 1840. But we do not mean to decide that extrinsic parol evidence, showing that the insurer and insured did not intend to make the policy subject to the act of 1840, would be allowable to control the legal effect' of the contract. That question can be determined when it arises.

• It is claimed that the policy in question is not within the act of 1840, and is not, therefore, subject to the rule of nonassignability established in Eadie agt. Slimmon, for the reason that it is an endowment policy — that is, a contract by the insured in the alternative, in consideration of the payment by the insured of an annual premium, to pay the sum insured at the expiration of a term of years, or on the death of the husband at any earlier period. The husband insured by the policy in this case is still living, and the period has not arrived when the obligation of the insurer to pay has become absolute; and it is insisted that the assignment of the wife sought to be annulled in this section was valid, so far at least as to convey her contingent interest, in the event of the bus-band surviving the time when the policy becomes absolutely payable. This contention is based on the claim that only contracts for life insurance strictly — that is, insurance payable in the event of death — are within the purview of the act of 1840, and that the reason assigned in Eadie agt. Blimmon, for holding that policies of life insurance payable to wives are non-assignable, is that the legislature had in view the protection of widows and orphans who would or might be frustrated if a wife was permitted to assign the policy during her husband’s life; that this reason has no application to the endowment feature of a life policy which contemplates the maturity of the contract during the husband’s life. There is considerable force in the argument that an endowment policy-was not in the mind of the legislature when the act of 1840 was passed. The original act provides that “a married woman may cause her husband’s life to be insured for her use for any definite period, or for the term of his natural life;” and further provides that the insurance shall be payable to her “in case of her surviving her husband,” and refers to no other event upon the happening of which she is entitled to receive it. It seems reasonable, therefore, to suppose that the words “ any definite period ” in the original section referred to an insurance for a limited period, but, nevertheless, to an insurance payable only in the event of death. This construction justifies the remark of Dentó, J., in Eadie agt. BUmmon, that the statute “ looked to a provision for a. state of widowhood and for her orphan children.” The policy in that case was issued in 1852. But the act of 1840 was amended by chapter 656 of the Laws of 1866, by striking out the words in the first section of the original act, which made the insurance payable to the wife “in case of her surviving her husband,” and inserting in their place the words “ in case of her surviving such period or term.” ■ This amendment seems to have been intended to bring within the act insurance of the precise character of the one in question.

An endowment policy is an insurance into which enters the element of life. In one aspect it is a contract payable in the event of a continuance of life; in the other, in the event of death before the period specified. The amendment of 1866 entitles the wife to the insurance whenever she survives the period or term of insurance, and her right is not limited, as in the act of 1840, alone upon the event of her surviving her husband, and seems to contemplate as well the case of an insurance payable before the death of the husband as one payable on his death. We are of opinion that the principle of non-assignability in Eadie agt. Slimmon applies to this case.

The statute, as it now stands, makes provision as well for wife and children, the husband living, as for widow and orphans, and there is no ground for imputing a different legislative policy in respect to an insurance payable during the husband’s life and one payable only on his death.

We are not called upon to indicate the doctrine of Eadie agt. Slimmon. The inference of a legislative intent to make a policy procured by a wife on her husband’s life unassignable deduced by the court in that case, has sometimes been thought to rest on a slender foundation; but the case has been repeatedly followed (Barry agt. Eq. Life Ass. Co., 59 N. Y., 587 ; Barry agt. Brune, 71 id., 262 ; Wilson agt. Lawrence, 76 id., 585).

The legislature, in conferring by subsequent acts a limited power of assignment, have recognized the policy attributed to the legislation of 1840, chapter 821, Laws of 1873, chapter 248, Laws of 1879. The assignment in this case was not within the authority conferred by those acts.

The fact that the premium paid may have exceeded the sum limited in the statute presents no question between these parties.

We think the judgment is right and should be affirmed.

All concur.  