
    Hannah Milhous, App’lt, v. Elizabeth Johnson et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    I. Insurance (life)—Construed by Laws of state, where executed and TO BE PERFORMED. ■
    A policy of insurance executed and delivered in this state, and which, by its terms, is to be performed here in conformity with the statutes of this state, is to be construed according to the Laws of this state, and to the laws, with a view to the provisions of which it was issued.
    3. Same—Deposit in post-office delivery.
    A deposit in a post-office of a policy of insurance directed to the agent of'the company in another state for the purpose of. delivery to the insured, constitutes a delivery to the insured. I
    31 Same—Assignee charged with knowledge of laws under whhjh POLICY WAS ISSUED.
    An assignee of a policy, which appears on its face to have been issued in conformity to the statutes of this state, is charged *th the duty of Jas- . • certaining how those statutes affect his rights. / ‘
    
    4- Same—PóLÍdy of"1 insurance not a separate estate of a married WOMAN. .
    A policy of insurance on the life of a husband does not constitute a separate estate of a married woman.
    S. Same—Wife cannot assign or mortgage without written consent OF HUSBAND. .
    A wife cannot assign or mortgage a policy of insurance in her favor without the written consent of her husband.
    Motion for judgment upon verdict directed in favor of plaintiff where defendant’s exceptions were ordered to be heard in the first instance at general term.
    . Ewing & Southard, for pl’ff; E. B. Convers, for def’t Johnson; Lemuel Skidmore, for def’t.
   Van Brunt P. J.

In 1870 application was made to ope J. G-. Jennings, agent of the defendant, the Mutual Life Insurance Company of New York, at Cleveland, in the state of Ohio, for a policy of insurance upon the life of one Jonathan P. Milhous, residing at Zanesville, Ohio, for the benefit of his wife, Hannah Milhous, residing at Zanesville, and his children.

Johnson took the application and forwarded it to the ■company at New York, where the application was accepted and the policy executed at the company’s office in New York, and transmitted by mail to Jennings in Ohio for delivery, and there delivered to the assured.

The loss and premiums were made payable by the terms-of the policy at the company’s office in New York. The policy contained this provision respecting the payment of the loss: “And the said company do hereby promise and. agree to pay the amount of said insurance at their office in' the city of New York to the assured for her sole benefit if' living, in conformity with-the statute and if not living, toller children or their guardian,” etc. The premiums on the-policy were paid to Mr. Jennings. The Mutual Life Ins. Company, before this policy had issued, bad qualified under the ‘ laws of Ohio and had a statutory agent appointed there. ' At the beginning of the year 1882, one F. A. Seborn held-a promissory note for $1,500 made by Milhous' and three other persons, which was due. Milhous-was pressed by the-defendant Seborn to pay this note and finally it was ar- -' ranged that Mr. and Mrs. Milhous should give their notes and also assign the policy to secure the payment of these notes. Mr. Milhous personally delivered to Mr. Seborn at Zanesville four notes dated June 28-, 1882, for $345.15 each, with interest payable in one, two, three and four years after-date. The notes were all signed by Mr and Mrs. Milhous and in each it was expressly stated that Mrs. Milhous charged her separate estate with the payment thereof. At the same time and place there was delivered to Seborn the original policy with an assignment endorsed thereon signed by Hannah Milhous. At the time of this transaction Mr. Seborn and Mr. and Mrs. Milhous were all residents of Ohio. No part of the four notes had been paid. Mr. Se-born has ever since retained the policy in his possession until he sent it here to his attorney to be used as evidence-' in this case.

In December, 1881, J. B. Milhous, the plaintiff and one John Donda gave three promissory notes payable to the order of one Haver for $300 each, payable'in one two and three years. These notes were endorsed over to the. defendant Elizabeth Johnson by the payee thereof. In January, 1886, Jonathan P. Milhous died leaving him surviving the plaintiff his wife and several children. The plaintiff made ' due proof of loss and in November, 1886, commenced this action against the life insurance company to recover the amount of such loss. On the 10th of January, 1881, the defendant Elizabeth Johnson commenced an action upon the promissory notes above mentioned and procured an attachment against the plaintiff Hannah Milhous which was served upon the insurance company. A claim was also presented by the defendant Seborn for the amount of said insurance moneys, and upon an application to the court the defendants Johnson and Seborn were brought in as defendants and the insurance company discharged upon the payment of the money into court.

Upon the trial of this case these facts appeared, and also proof of the laws of Ohio, that where a policy of insurance is made payable to a married woman solely for her use she may sell, assign or surrender the same upon the party whose life is insured concurring in and becoming a party to the transfer, and also upon the part of the defendant, Johnson, to the effect that a married woman, having a separate estate, may charge it by the execution of a promissory note as security for her husband or another, and that it is not necessary that by the terms of the note its payment should be made an express charge.

Upon this state of facts the court directed a verdict in fvaor of the plaintiff. This direction seems to have been entirely correct.

It is apparent from the foregoing statement that the contract of insurance is to be governed by the Laws of the state of New York and not by the Laws of Ohio. In the first place the policy was executed here and delivered here. It is true it was transmitted by mail to the agent in Ohio. But after it had been mailed it was impossible for the company to have recalled it because it appeared from the proof /that it was mailed for the purpose of delivery. The con-i tract was to be performed here as by its very terms the iloss is made payable, at the company’s office in the city of (¡New York. And it further appears upon the face of the ^policy that it was contracted for and issued with a view to (the provisions of the statutes of New York.

The contract must therefore be construed according to the Laws of this state and according to the Laws with a view to the provisions of which it was issued. If any; authority was needed to establish an elementary proposition of this kind the case of Barry v. Equitable Life Assur. Soc. (59 N. Y., 587), is a case exactly in point. In that case the policy wa§ of the same form, and it was there held that the rights of the parties were to be determined by the provisions of the Laws of New York as applicable to policies of this de scription.

^In view of this consideration, it is entirely immaterial whether the contract is deemed to be entered into in Ohio or not. It was entered into in view of certain provisions of the laws of the state of New York, and in conformity therewith, and the provisions of those acts thereby became incorporated in, and an active part of, this policy.

It is urged upon the part of the defendant Seborn that he knew nothing about the laws of New York, being a resident of Ohio. That may be true ; but upon the face of ■the policy which he took as security, it appeared that the policy had been issued in conformity to the statutes of New York, and he was thereby notified that the state of New York had statutes in reference to this matter, and whether they affected his rights as assignee of the policy or not, it was his duty to have ascertained. It is, therefore, clear that as far as the defendant Seborn is concerned, by reason of the assignment of this policy to him, no rights in and to ■said policy were acquired, because such assignment was not executed according to the laws of New York, in that ■it did not appear to have been made by Hannah Milhous with the written consent of her husband.

The claim of the defendant Johnson stands upon a different basis. It is urged that under the laws of Ohio, by the making of the notes above referred to, the plaintiff charged her separate estate with the payment thereof,- although such payment was not made an express charge upon- the face of the notes. This seems to be the law of Ohio. But at the time of the making of these notes, it does not appear that Hannah Milhous had any separate estate upon which these notes could be a charge ; and it is only in case a married woman has a separate estate that she is empowered by the laws of Ohio to make notes as surety for her husband or another. Therefore, Hannah Milhous, being a married woman, unless she is known to have a separate estate, had no power to makes the notes which formed the basis of the claim of the defendant Johnson in this case.

It is urged that her interest in the policy of insurance constituted a separate estate. We think that the principles laid down in the cases by the courts of this state show conclusively that this policy could have constituted, no separate estate of Hannah Milhous, because at no time prior to the_ death of her husband did she have any interest in this policy which a creditor could seize. This is expressly held in the case of Smillie v. Quinn, 90 N. Y., 498, If she had no interest in this policy within the reach of a creditor, then she had no separate estate which was the subject of a charge.

And, further more, it has already been stated, that in the state of New York, whose laws are to govern the rights of the plaintiff in this policy, a married, woman cannot assign, a policy, such as the one under consideration, without the written consent of her husband. If she cannot assign the policy without such written consent, certainly she cannot mortgage it, and the claim that the plaintiff by the execution of the notes in question, made a charge upon this policy, is necessarily defeated by the fact that her husband has not executed any consent to the making of such charge.. It is true the he joined with his wife in making the notes, but that is no compliance with the requirement of the statute for two reasons: First, that the policy did not constitute-any separate estate of Mrs. Milhous, and the notes were-therefore void, and second, Mrs. Milhous could not assign the policy absolutely, without the written consent of her husband, and she certainly could not mortgage it without a like consent. The defendants have, therefore, established-no clainl the notes upon which this claim is founded not being authorized by the Laws of Ohio, and formed no claim which would be made the basis of an action in this state to reach the proceeds of this policy.

Judgment should, therefore, be entered upon the verdict, in favor of the plaintiff with costs.

Daniels and Bartlett, JJ., concur.  