
    Alice C. Van Riper di Mombercelli, Plaintiff, v. Marie Van Riper, Individually and as Executrix of the Last Will and Testament of Eccles G. Van Riper, Deceased, Defendant.
    (Supreme Court, New York Special Term,
    November, 1914.)
    Evidence — absence of proof.
    Insurance (life)—policy of — uncertainty as to whether policy was a New Jersey or Indiana policy — pleading.
    In the absence of proof that the common law of a sister state is different from that of New York it must be presumed to be the same.
    
      A policy of insurance on the life of decedent was payable to his first wife and in the event of her death before him the insurance money was made payable to their children two of whom predeceased her, intestate and without issue. The wife who had divorced her husband died leaving plaintiff
    .their sole surviving child and her sole next of kin. In an action by interpleader between plaintiff and the decedent’s second wife as his executrix and sole legatee to determine the title to one-half of the proceeds of the life insurance policy, held, that the interest of the two deceased children of the first wife passed to plaintiff as the survivor of the class, the conflicting allegations of the complaint making it uncertain whether the policy was a New Jersey or Indiana contract.
    Motion for judgment on the pleadings.
    Cornell, Lockwood & Jeffrey, for plaintiff.
    Carrington & Pierce, for defendant.
   Guy, J.

Motion by plaintiff for judgment on the pleadings. Under the amended pleadings the action was by interpleader between the plaintiff as the only surviving child of decedent and decedent’s first wife, and the defendant, decedent’s second "wife, as executrix and sole legatee of said decedent, to determine the title to one-half the proceeds of a life insurance policy upon decedent’s life. On August 6, 1866, the Mutual Benefit Life Insurance Company insured the life of the decedent for $10,000 payable to his first wife (plaintiff’s mother) by name, the policy further providing that “ in case the said assured (the first wife) should die before the decease of ’ ’ her husband ‘1 then the amount of this insurance shall be payable to their children or to their guardian, if under age, within ninety days after due notice and proof of interest and of the death of the said decedent, Eccles G. Van Riper.” The policy by its terms was between the wife, plaintiff’s mother, and the insurance company, but the answer alleges that the premiums were in fact paid by the husband. Decedent and his first wife had two children who predeceased his first wife, intestate and without issue. Decedent and his first wife were divorced in Indiana in 1882 in a suit brought by the first wife. Decedent’s first wife died on September 23,1906, leaving plaintiff their sole surviving child and her sole next of kin. Decedent died on January 26,1914. The policy of insurance was either a New Jersey or an Indiana contract, the conflicting allegations of the pleadings making it uncertain which for the purposes of this motion. Assuming defendant, claiming as the privy of a party to an insurance policy against plaintiff as beneficiary thereunder, may disregard the provision of the policy which specifies the first wife as the assured and acknowledges the premiums as paid by her alone (contrary to Pool v. New England Mutual Life Ins. Co., 123 App. Div. 885-887), the question remains, What are their common law rights under such a policy? The common law meaning of the words in a life insurance policy, in the absence of proof that the common law of New Jersey or Indiana is different from that of New York, must be assumed to be the same as ours. Under the common law a policy upon the husband’s life payable, first to the widow and second to their children if the husband survived the widow, vests after the death of the widow in her then living children at the time when the policy became payable, as survivors of the class. Consequently the interests of the two deceased children of the first wife passed to the plaintiff as the survivor of the class, and not tp the second wife as the legatee of the decedent, their father. United States Trust Co. v. Mutual Benefit Life Ins. Co., 115 N. Y. 152, 157, 158; Walsh v. Mutual Life Ins. Co., 133 id. 408, 413-419; Fidelity Trust Co. v. Marshall, 178 id. 468, 472-474; Bradshaw v. Mutual Life Ins. Co., 187 id. 347, 355; Davis v. New York Life Ins. Co., 212 Mass. 310, 314; Winsor v. Odd Fellows Assn., 13 R. I. 149-151; Ryan v. Rothweiler, 50 Ohio St. 595, 600-602. In Connecticut, Iowa, Kentucky, Michigan and Tennessee a different rule prevails (see cases cited in Davis v. New York Life Ins. Co., 212 Mass. 314), on the theory that the policy is there regarded as a testamentary disposition in favor of decedent’s wife, children and their next of kin, rather than as a contract. I think both on reasons of authority and on the natural meaning of the words used the New York, Massachusetts and Ohio rule of construction of life policies is sound as applicable to the common law of Indiana or New Jersey, in neither of which has the question been decided by the court of last resort.

Judgment for plaintiff.  