
    BERTHA WUESTHOFF, et al., by Guardian ad litem, and EMMA WUESTHOFF, Appellants, v. GERMANIA LIFE INSURANCE COMPANY, Respondent.
    
      Life insurance—notice and proof of death by or on behalf of those entitled to receive payment.—Estoppel in pais.—One who tabees a benefit or advantage of an act of another is estopped against questioning consequences. —Infancy.
    
    Under an insurance policy upon the life of one Frederick Wuesthoff, payable on the death of his wife Amalia, before him, to “ her children ” (the plaintiffs herein), or to their guardian if under age, payment to be made in sixty days after due notice and proof of the death of said Frederick, Eliza Fredericka, the second wife of said Frederick, served on defendant a notice and proof of death, signing them “ as guardian of the children of the deceased Amalia,” and claiming the ownership of the policy as such guardian, and thereupon defendant paid to her the amount of the policy. No other notice and proof of death was served.
    
      Held, in this action to recover the amount of the policy:
    (1) That if it was claimed by plaintiffs that the notice given was not given on behalf of them, then the notice intended by the policy had not been given, for the defendant was entitled to notice given by, or on behalf of, those entitled to receive payment; and it not having been given on behalf of plaintiffs, they could not ratify.
    (2) That if the plaintiffs take advantage of the notice, thus affirming the exercise by Eliza Fredericka of authority over the policy as owner, the consequence, to wit; its payment to her, must also be affirmed.
    (3) That the.complaint was therefore properly dismissed.
    Before.Sedgwick, Oh. J., Teuax and O’Gorman, JJ.
    
      Decided June 1, 1885.
    Appeal by plaintiffs from judgment dismissing complaint entered upon findings and conclusions by a judge trying, by consent, the issues without a jury.
    The plaintiffs were the children of Frederick Wuesthoff and his wife Amalia. The action was upon a policy of insurance upon the life of the said Frederick Wuesthoff, in the sum of $5,000. It provided that “in case of the death of the said Amalia, before the decease of the said Frederick Wuesthoff, the amount of the said insurance shall be payable, after her death, to her children, for their use, or to their guardian if under age, payment to be made in sixty days after due notice and proof of the death of the said Frederick as aforesaid.” The wife Amalia, died before her husband Frederick, died. At the time of his death, he was a resident of the state of New Jersey. He left a will, afterwards duly proved, by which he made his second wife, Eliza Fredericka Wuesthoff, the guardian of the persons and of the property of the persons who are now the plaintiffs. The statutes of New Jersey enact that “every guardian appointed by last will and testament, which shall be legally proved and recorded, shall, before he exercises any authority over the minor or his estate, appear before the orphans’ court and declare his acceptance of the guardianship, which shall be recorded, and shall give bond, with such sureties and in such sum as the said court may approve of and order, for the faithful execution of his office, unless it is otherwise directed by the testator’s will.” The will contained no direction on the subject. Eliza, the guardian named in the will, did not declare the acceptance of the guardianship or give bond under the statute. After the proof of the will, she served upon the defendant notice and proof of death of said Frederick, signing them as “guardian of the children of the deceased.” In the notice, &c., was the question: “By what right do you claim the ownership of the policy ?” Her answer was as written, ‘c as guardian of the children of the deceased.” The defendants thereupon paid to her the amount of the policy, she then surrendering to them the policy itself, of which she had possession. No other notice and proof of death or demand for payment was given or made to the defendants before action brought, and such fact was set up as a defense in the answer. The plaintiffs claimed that the payment to Eliza, as guardian, was not a payment according to the terms of the policy, for the reason that she had not complied with the statute that has been cited.
    The judge below dismissed the complaint.
    
    
      
      Beaman, Mayer & Walrath, attorneys, Charles B. Mayer and Frederick B. Walrath, of counsel for appellants, argued:
    I. (On the point on which the general term decided.) Due notice and proof of death, as required by the policy, was given to the defendant. There is no requirement in the policy that notice of death shall be given by any particular person. The essential thing is that the insurer shall receive due notice of the death, and it can in nowise be essential by whom that notice is given, or how its information is obtained. The notice may be given by an entire stranger. And when the information has been seasonably communicated, the requirement of the policy has been fulfilled, to wit: “Due notice. . . . of death has been given to the company” (May on Insurance, §§ 465, 466, 512 ; Guardian Life Assu. & Trust Co., 9 Weekly Notes of Cases, 425 ; Eclipse Insurance Co. v. Schoener, 2 Cin. Supr. Ct. 414 ; Taylor v. Selna Life Ins. Co., 13 Gray, 434; Day v. Mutual Ben. Life Ins. Co., 1 McArthur, 600 ; Hincken v. Mutual Ben. Life Ins. Co., 6 Sand. 24 ; Northwestern Ins. Co. v. Atkins, 3 Bush, 333). If the death occur in the presence of the board of directors, or of an officer of the company competent to receive proof, or if the company of its own motion obtain the information, that fact alone operates as due notice to the company (Kennedy v. Home Ins. Co., 9 Ins. L. J. 359). The law is reasonable, and does not require that to be done which is unnecessary. Eliza F. Wuesthoff, being the widow of the deceased, and the stepmother of the beneficiaries, was a proper party to give notice of such death, under any and all circumstances. If it could by any possibility be construed as an obligation on the part of the beneficiaries to give the notice,- then it was proper to communicate the information through an agent. Such agent was their stepmother, whose act, in giving notice, they have ratified (Sims v. State Ins. Co., 47 Mo. 60). The case of Bliss v. Cottle (32 Barb. 322), with others cited by defendant’s counsel, was an action in tort for conversion, and refers to demand, -not notice. The plaintiffs were not required to make a demand in this case, hence do not ratify any demand of their stepmother—if she made such. And even in the extreme cases where, by the terms of the policy, personal notice by the insured was required to be given, the acceptance of the notice and proofs of loss from another, without objection, has been held to he a waiver of the right to require personal notice from the insured (Reilly v. Guardian Hut. L. Ins. Co., 60 N. Y. 172 ; Sims v. State Ins. Co., 47 Mo. 60 ; Farmers’ Hut. Ins. Co. v. Graybill, 74 Pa. St. 17 ; Kernochan v. Bowery F. Ins. Co., 17 N. Y. 433; Pratt v. N. Y. Cent. Ins. Co., 55 Ib. 506 ; Bodle v. Chenango Co. Ins. Co., 2 Ib. 58). The payment of the amount of the policy (notwithstanding it was made to the wrong person) was a waiver of the right to raise any objection to the manner of giving the notice and proof of death. It was held, that the sufficiency of preliminary proof was admitted by the mere act of bringing the money due upon the policy into court (Johnson v. Columbia Ins. Co., 7 John. 315).
    II. (On the point on which the special term decided.) This suit was properly brought by the plaintiffs, they, as infants, being represented by their guardian ad litem (Segelken v. Meyer, 94 N. Y. 473). The appointment of a general guardian was not a condition precedent to the cause of action arising in favor of the plaintiffs. The contract, as evidenced by the policy, was to pay them, and the addition of the words “their guardian if under age,” did not make it obligatory upon them to have a guardian as a condition precedent to recovery. These words did not modify the contract, but were simply surplusage. The policy was for their benefit, and the guardian is their representative and not a principal in the contract. The infants should sue as beneficiaries by their nest friend, or guardian ad litem, and the judgment, in the event of recovery, will be entered in their favor (Higgins v. Hannibal & St. Jo. R. R. Co., 36 Mo. 418 ; Balto. & Ohio R. R. Co. v. Fitzpatrick, 36 Md. 619). Under a policy of fife insurance, payable “ to their children, for their use, or to their guardian if under age,” which is the same language as that contained in the policies in this case, it was held notwithstanding the objection that the cause of action was in the general guardian, that the children were the real parties in interest, and that the suit was properly brought in their names by their guardian ad litem (Price v. Phoenix M. L. Ins. Co., 17 Minn. 500). The interest in- the policy vested in the infants immediately upon the death of their father. So held, under a policy of the N. Y. Life Ins. Co. identical in form with the policy in evidence (Clemmitt v. N. Y. Life Ins. Co., 76 Va. 360). And it is apparent that in neither of these cases had a general guardian been appointed. The same doctrine was held in cases where obligations to pay ran to other representative parties, as, for example, an agreement “to pay to the treasurer of the commissioners ” was held to be a contract to pay the commissioners which must be declared upon by them and not the treasurer (Piggott v. Thompson, 3 Bos. & P. 149). So also on a contract to pay A. B., agent of the proprietors, etc. (Gilmore v. Pope, 5 Mass. 491). To the same effect (Taunton Co. v. Whiting (10 Mass. 327). So also on an agreement to pay to directors, their successors or assigns (Bayley v. Onondaga Ins. Co., 6 Hill, 477, and cases cited). So also on a “ policy for loss, if any, payable to (the broker) only ” (Lane v. Columbus Ins. Co., 2 Code R. 65). If the contract was not with the guardian as beneficiary, then there was no necessity for the appointment of a guardian in order to give the real beneficiaries a cause of action. The only purpose then of the appointment of a guardian, is that he may receive property belonging to the infant, and take the custody and management thereof. If there be no property to receive into his custody, there is no occasion for the appointment of a guardian. If an infant simply has a claim which is disputed, when that claim is perfected by a judgment, and about to be paid, it will be in sufficient season to procure the appointment of a general guardian to receive the money into his custody and management. And rather than that the action by the infant should fail, the courts could appoint a general guardian during the pendency of the action. The guardian ad litem may become such by filing security (Code, % 474 ; Rule, 51).
    
      
      Salomon & Dulon, attorneys, and Edward Salomon, of counsel for respondent, argued:
    I. (On the point on which the general term decided.) The complaint was properly dismissed, because no notice and proof of death were ever given to the defendant by the plaintiffs, or in their behalf, except those of Eliza F. Wuesthoff, as their guardian, whose action as such they seek to repudiate (Paley Agency, by Lloyd, 171, 172 [343 to 346] ; Right ex dem. Fisher v. Cuthell, 5 East, 49 ; Cole v. Ball, 1 Camp. 478 ; Coore v. Calaway, 1 Esp. 115 ; Freeman v. Boynton, 7 Mass. 483 ; Bank of Utica v. Smith, 18 Johns. 230). The rule of law that “ omnis ratihabitio retro tráhitur et mandato priori cequiparatur,n seems only applicable to cases where the conduct of the parties on whom it is to operate cannot, in the meantime, depend upon whether there be a subsequent ratification (Bliss v. Cottle, 32 Barb. 322, and cases there cited; Story Agency, §§ 244, 245). In the case at bar the object and effect of the notice and proof of death under the policy is to fix the time of payment, and to subject the company to damages by way of interest, if payment is not made accordingly. Service of such notice and proof comes clearly within the rule of the above authorities. If Mrs. Wuesthoff was not the plaintiffs’ guardian, her notice and claim was unauthorized, and cannot inure to the plaintiffs’ benefit and the defendant’s injury.
    The notice and proof of death were given by Mrs. Wuesthoff as guardian for the plaintiffs, and she therein expressly states: “that the undersigned is the legal owner of said policy, and has a good and valid interest to the amount assured in the Ufe of said deceased.” It was acted upon in good faith by the defendant, who paid the money accordingly to her as guardian, and has spent its force. It was made and served by and for her benefit as guardian, and has served its purpose. It is functus officio. It would be contrary to all justice and weU-known rules of law to allow the plaintiffs to repudiate her act as guardian, and at the same time base upon it a right of action. Such a thing would be a novelty in the jurisprudence of this country. The plaintiffs cannot be permitted to adopt this notice in part and repudiate it in part; they cannot in the same breath adopt and repudiate the guardianship of Mrs. Wuesthoff.
    None of the authorities cited by plaintiffs’ counsel in the court below support the proposition that no notice from the plaintiffs to the defendant was necessary, or that the plaintiffs, while repudiating Mrs. Wuesthoff’s authority as guardian, can claim under her notice a right of action, while the defendant has once acted upon that notice in good faith in paying the policy to her. The cases cited are cases of waiver not applicable here. But amongst the numerous authorities there cited against this point, the following strongly support the defendant’s position (May Insurance §§ 463, 465 ; Reilly v. Guardian Mutual Ins. Co., 60 N. Y. 172 ; Kernochan v. N. Y. Bowery Fire Ins. Co., 17 N. Y. 433). In the case at bar nothing has been done by the defendant to warrant the court to hold that they have waived “due notice.”
    II. (On the point on which the special term decided.) The complaint was properly dismissed, because, except Mrs. Wuesthoff, no general guardian of the plaintiffs, or any guardian authorized to receive payment of the policy, has ever existed, (a) The agreement of the defendant in its policy is, in case of death of Amalia Wuesthoff before that of her husband, to pay the amount of the insurance “to her children for their use, or to their guardian if under age.” Until the existence of such a guardian, therefore, authorized to receive the money, there can be ' no default in the defendant’s obligation. Assuming that the amount had become payable, for instance, that the notice and proof of death had been waived by the company in a given case, yet, so long as there is no guardian in existence authorized to receive payment, and until such guardian had made a demand, the company could not be held to be in default (Code Civ. Proc. §§ 2822, 2823, 2825, 2826, 282Y, 2838, 2839, 2840). (6) Price v. Phoenix Mut. Life Ins. Co. (17 Minn. 497), cited by plaintiffs5 counsel in the court below, is to the effect that where a right of action exists in the general guardian, i. e., where a general guardian is in existence, and a company in default in not paying him, the action may be brought by the infant as the real party in interest, appearing by guardian ad litem. The same rule exists in this state (Segelken v. Meyer, 94 N. Y. 473). But it is nowhere held that where no general guardian is or has been in existence, to whom payment could be made, an action could be maintained by the infant. Williams v. Storrs (6 Johns. Ch. 353), and Wangler v. Swift (90 N. Y. 38), are direct authorities in support of the position that the existence of a general guardian, and notice thereof to the defendant, was a condition precedent to the defendant’s liability, and clearly sustain the judgment of dismissal, (c) This point of the non-existence of a general guardian for the infant plaintiffs, affects equally the adult plaintiff ; because, 1st, The action is a joint action ; 2d, The promise or covenant in the policy is to the adult and the guardian of the infant children jointly (1 Bliss Code, 220, 234 ; Pearce v. Hitchcock, 2 N. Y. 388 ; Tinslar v. Malkin, 12 Week. Dig. 530 ; Jones v. Belch, 3 Bosw. 63 ; Code, §§ 446, 448).
    Counsel on both sides, and also Chamberlain, Carter & Hornblowér, of counsel for the New York Life Insurance Company, by leave of the court, argued at general term, as to the effect of the will of Fredericka Wuesthoff, deceased, of the laws of New Jersey, and of the non-compliance of Eliza Fredericka therewith.
    
      
      
        Guardian of infants, contract to pay to—existence of a general guardian necessary to maintain action on behalf of inf ant plaintiffs.—Joint promise to infant and adult plaintiffs—action on cannot be maintained where there is no general guardian for the infant plaintiff.
      
      At special term, the complaint was dismissed, on the ground that there was no general guardian in existence who was entitled, to receive payments for the infant plaintiffs, Ingraham, J., writing as follows :—
      “The first question to determine in disposing of this action is, what contract did the defendant make ? what did it agree to do ?
      “By a policy of insurance, the defendant, in consideration of $164.25 to it in hand paid hy Amalia Wuesthoff, wife of Frederick Wuesthoff, and of further annual premiums to be paid, assured the life of Frederick Wuesthoff, for the sole use of the said Amalia Wuesthoff, in the amount of $5,000, and agreed with said Amalia Wuesthoff, to pay the said sum to Amalia Wuesthoff within sixty days after due notice and proof of death, 1 and in case of the death of the said Amalia Wuesthoff, before the decease of said Frederick Wuesthoff, the amount of the said insurance shall he payable after her death to her children for their use, or to their guardian if under age.’ Amalia Wuesthoff having died before Frederick, the amount of the insurance on his death was payable to her children. The children being minors at the time of the death of the insured, to whom, under the policy, was the company bound to pay ? Not the children, for they were incapable of receiving the money or releasing the company from its obligations, and in express terms the policy provided that in such a case the payment was to be *1 to their guardian. ’ In Price v. Phoenix Insurance Co. (17 Minn. 498), cited by plaintiff, the court says that the words ‘ payable to the guardian ’ give the defendant the privilege, and make it its duty, to pay the sum assured to such guardian. A payment, therefore, under this policy, to any one but their guardian would not have satisfied the obligation of the policy, and discharged the defendant on the policy. It appeared on the trial, that Frederick Wuesthoff died in 1877, leaving a last will, whereby he appointed Eliza F. Wuesthoff, guardian of bis children. The will was duly admitted to probate as required by the statute of New Jersey, where Frederick and his children resided. And under the statute of New Jersey such appointment was valid, and constituted the said Eliza F. Wuesthoff the guardian of the children, and such guardian was authorized by the statute to take into her hands, "for the use of such child or children, the goods, chattels and personal estate of such children (Revised Statutes of New Jersey, § 1, p. 464). A subsequent section of the statute (§ 48, p. 762), provides, however, that every guardian appointed
      
        by last will and testament, shall, before he exercises any authority over the minor or his estate, appear before the orphans’ court and declare his acceptance of the guardianship, which shall be recorded, and give bonds, etc., unless it is otherwise directed by the testator’s will. This was not done, and it is claimed by plaintiffs that in consequence of such omission, the defendant was not authorized to pay the amount of the policy to the person appointed guardian by the will of the deceased.
      “ But if defendant was not authorized to pay to such guardian, to whom was it authorized or required to pay ? The agreement was to pay to the children’s guardian; and a guardian was appointed in the manner . required by law, but according to plaintiffs’ theory was not qualified to receive the infants’ estate. No statute of New Jersey was proved which authorized the defendant to apply for the appointment of a guardian of the children, and I know of no rule of law that requires it to provide a person qualified to receive the money, as well as to pay it to such persons when qualified to receive it, and until such guardian had been appointed and qualified, I do not see how the defendant can be said to be in default. If there had been a guardian duly appointed and authorized to receive the fund, and the company had refused to pay, it is now settled in this state that the infants could sue by their guardian ad litem (Segelken ®. Meyer, 9 I 473); but that does not dispense with the necessity of there being a person in existence to whom the obligor would be by the terms of the obligation authorized to pay before it could be said to be in default. In Wangler v. Swift (90 W. Y. 88), it was held that where a thing to be done lies more properly within the cognizance of the plaintiff than of the defendant, notice that such thing had been done ought to be given to the defendant, and such notice was a condition precedent to the defendant’s liability. In that case, the person to whom the payment was to have been made was determined, but the amount to be paid was in doubt; in this case the amount is fixed, but the person to whom it is to be paid is uncertain, and until such person is appointed, notice thereof given to the defendant; and a demand made on it, there could be no breach, and consequently, no right of action.
      “The obligation sued on is joint. The action is at law to recover the amount of the policy, and I think, for the reasons above given, that no cause of action has been shown against the defendant, and the complaint must be dismissed, with costs.”
    
   Per Curiam.

The learned counsel for the appellant claims that by virtue of the statute of New Jersey that has been cited, Eliza F. Wuesthoff had no power to exercise any authority over the estate of the minors. On the assumptions made in this action on behalf of the minors, they had an interest in the policy, and the policy was part of their estate. Eliza F. Wuesthoff exercised authority over the policy, claiming to be the owner of it, and giving ' in the course of making that claim, the only notice and proof of death that have been given to the defendants. Under the terms of the policy, the plaintiff, to recover, was bound to prove that there had been made the notice and proof of death intended by the policy to be a condition precedent to the obligation of the company to pay.

The plaintiffs take the position that the proof and notice of death that were given, inure to their benefit in this action. Without this, there would be no proof of the performance of the condition precedent referred to. If, however, they take the advantage of the notice, they must take it as it was in fact, by affirming the relations in which it was given, viz.: as a notice given by Eliza, as guardian under the will, exercising authority over the minors’ estate. When this exercise of authority over the policy as owner is affirmed, the consequence in its payment must also be affirmed (The Farmers Loan & Trust Co. v. Walworth, 1 N. Y. 433, and cases cited). The principle is like that that prevents a partial ratification of an agent’s acts (Story Agency, § 250).

If the notice given was not given in behalf of the plaintiffs, then, in favor of the defendants, who were entitled to notice given by or on behalf of those who were entitled to receive payment of the policy, the notice intended by the policy has not been given, for the plaintiffs cannot ratify a notice not given in their behalf (Hamlin v. Sears, 82 N. Y. 331 ; Story Agency, §§ 251 a, 246, 241).

Judgment affirmed, with costs.  