
    ANDERSON FOWLER, Plaintiff and Appellant, v. HENRIETTA BUTTERLY (Substituted in Place of North America Life Insurance Co.), Defendant and Respondent.
    Life insurance policy.—Husband and wife.—Married woman, EIGHTS AND POWERS OF.—GrlFT, COMPLETION OF.
    Nicholas Butterly, the husband of the defendant, procured a policy of life insurance to be issued to him in September, 1869, by the North America Life Insurance Co., which assured his life in the sum of $5,000, until September 6, 1882, or until his decease, in case he died "before the last named date, and then said company agreed to pay the said $5,000 to him, in case he was living at the expiration of the time, and in case of his decease before that time, it agreed to pay the said sum to his wife, the defendant. In October, 1872, both husband and wife executed an assignment of the policy to one McCormack, who subsequently assigned the same to plaintiff. In 1875, Nicholas Butterly died. The plaintiff sued the company, -who paid the money into court, and procured the substitution of the defendant in its place. This appeal is from the decision of the judge below, on the following points :
    1. That the policy of insurance was protected by the statute in respect of life insurance for the benefit of married women, and that, in 1872, when the defendant signed the instrument, which was in the foim of an assignment, she had no right to assign the same.
    2. That whatever was the nature of her rights under the policy, her execution of the purported assignment was not her act, but was the result of undue influence used upon her by her husband, which amounted to compulsion.
    The following question was also raised and argued by counsel on the appeal. That the defendant had no rights or interest whatsoever in the policy at the time of the assignment, but the husband was possessed of the whole legal and beneficial property and interest in the policy and the same passed by^iis assignment.
    On these several points the court—Held, the wife had the power to transfer any right or interest in the policy, that had vested in her at the time she executed the purported assignment.
    If the means used by the husband deprived the defendant of mental or moral power to guide her actions for herself, the signature was not voluntary, but extorted from her.
    If she was induced or persuaded to act, her signature was voluntary. If she was compelled to act, it was involuntary.
    The kind and amount of force used in such a case has the same relations that it would have in a charge of robbery, as distinguished from larceny or false pretenses.
    What will compel a wife to sign may depend upon her temperament, and the past relations between her and her husband. There may be little in the way of threats or action, and yet the absolute fact may be, that resistance to his will or non-compliance with it may be impossible.
    If the wife testifies to her own state of mind, and swears that she was afraid of her husband, the court must rest upon that fact, if she is a credible witness.
    In this case the husband was not possessed of the whole legal and beneficial property and interest in the policy. The wife had a right and interest therein created by her husband in the nature of a gift, and it thereby became her sole and separate estate, and he had not the power in law or equity to dispose of it.
    Before the statute relating to and protecting the estates of married women, the husband had power to give, directly and without the intervention of trustees, personal property to his wife, so that the same became free in equity from his power of disposition of the same. By our present statute law a gift of property by a husband to his wife vests the same absolutely in the wife, and it becomes her separate property ansi estate to all intents and purposes.
    The form of the gift is not important if it appears that there was an executed intention to give (Stewart «. Kissam, 2 Barh. 493).
    In the present case the right or interest of the wife proceeds from the husband voluntarily, and his acts and intentions in respect to it, and the limitations and modes of control of the same prescribed by him at the time of its creation must be entirely respected and preserved by the court.
    In all cases it is safest to consider that there must be a delivery of the gift, or an execution of the intention on the part of the donor, to benefit the donee without delivery. In this case the omission to deliver the policy to the wife is not conclusive against the gift, because the form of the gift was such that the husband would naturally retain the policy in his possession, to use for himself (in case he lived until the year 1881).
    In cases of choses in action actual delivery is not always necessary (see the cases cited and reviewed in the opinion of the court, as applicable to the questions in this case). The original delivery of this policy was to the husband in behalf of his wife as well as in his own behalf, and upon that delivery the wife became vested with an interest in the policy which the husband could not take nor divest from her without her consent.
    Before Ctrims, Ch. J., Sedgwick and Freedman, JJ.
    
      Decided August 1, 1878.
    Appeal from judgment entered on decision of judge at special term.
    The original defendant deposited in court $5,041. The case showed these facts. On September 6, 1867, Nicholas Butterly, husband of defendant Henrietta Butterly, applied in writing to the North America Life Insurance Company for insurance on his life ; and to the direction to “ Specify name of person or persons for whose benefit assurance is desired. If wife of person to be assured, say so,”—stated: “ Nicholas Butterly. A. In case of death to Henrietta Butterly, wife, if living. B. Otherwise to Alice V. Butterly, daughter.” A policy was thereupon issued. This policy was, about September 28, 1869, surrendered by Nicholas Butterly and a new policy was issued to him. The only alteration related to the manner of paying the premium. The policies contained the provision that the company “do assure the life of Nicholas Butterly, of Brooklyn, in the amount of $5,000, until the sixth day of September, in the year 1882, or until his decease in case of his death before that time. And the said company do hereby promise and agree to and with the said assured well and truly to pay or cause to be paid, the said sum insured to the said assured, within 90 days after the' termination of this assurance as aforesaid, or in case he shall die before that time, then to Henrietta Butterly, wife, if living, otherwise to Alice Y. Butterly, daughter of the saidassured.” There was a further provision that the “company do further .promise and agree, that if after due payment of the said premiums for the first two years of the assurance, default shall be made in the payment of any subsequent premiums . . . they will pay ... as many fifteenth parts of the original amount hereby assured, as there shall have been complete annual premiums paid'at the time when such default shall first be made.” This clause was not to be operative unless the policy should be returned to the company within thirty days from the day of default. He paid the premiums to October 13, 1872, and. on that day, executed and delivered the following assignment:
    “In consideration of the sum of $1,500 to me in hand paid by Joseph E. McCormack, the receipt whereof is hereby acknowledged, I, Nicholas Butterly, do hereby sell, assign, transfer and set over unto the said Joseph E. McCormack, the policy of insurance on my life, issued by The North America Life Insurance Company, and numbered 11,994.
    “Dated, New York, October 13, 1872.”
    On the same date, the following paper was delivered by Nicholas Butterly to McCormack :
    “In consideration of the sum of one dollar, to us in hand paid by Joseph E. McCormack, the receipt whereof is hereby acknowledged, we Henrietta (wife), and Alice Y. Butterly (daughter), do hereby sell, assign, transfer and set over unto the said Joseph E. McCormack, all our right, title and interest, in the policy of insurance on the life of Nicholas Butterly, issued by The North America Life Insurance Company, and numbered 11,994.
    “Dated, New York, October 13, 1872.
    “HENRIETTA BUTTERLY.
    “ALICE Y. BUTTERLY.”
    Thereafter the premiums were paid by McCormack, until he assigned the policy to the plaintiff, and then the premium was paid by plaintiff, or on his account by McCormack.
    As to the instrument signed by the defendant, Mrs. Butterly, the judge found as matter of fact, that “it was signed by her without any knowledge of its purpose or purport, without any consideration passed to her for so doing, and without any intention on her part to divest herself of any property or right, or of any interest in said assurance, and that her signature thereto was procured from her by the exercise, on the part of her husband, of undue influence and control, amounting to compulsion ;” and as a conclusion of law on these facts, that the instrument was inoperative and void as an assignment of the wife’s interest in the policy.
    The general conclusion was, that the assignment by the husband transferred only his contingent interest to receive the amount of insurance, in case he was living in 1881, and he having died in 1875, the wife was entitled to the amount insured.
    
      O. Van Santvoord, attorney, and of counsel for appellant, among other things, urged :
    I. The policy issued to Nicholas Butterly, as the covenantee, on his application for a consideration moving from him, with the provision in the covenant with him to pay 'the sum insured on his life to his wife, if she survived him, at the most vested in or conferred upon her a right of action, if she survived, for the recovery of such sum, which, as a chose in action of the wife by the gift of the husband, the latter could defeat by a release or an assignment for a valuable consideration. In Draper v. Jackson (16 Mass. 476), it was held that the law required that a note and mortgage made to husband and wife should go to the wife if she survived her husband, for which the reason given is that when the husband takes a security for a debt in the joint names of himself and wife he is understood to assent and intend that she shall have some peculiar benefit from it (pp. 482, 486). It is added, it is true, that the husband may afterwards change his mind and may release the demand or take a new security for it, or bring the action in his own name, and if he recovers the money he will retain it to his own use. In 2 Pierre Williams, 497, the lord chancellor held that a bond given to husband and wife during coverture, on the husband’s dying first, survived to the wife, though it be true that the husband may disagree to the wife’s right to it, and bring the action on the bond in his own name only ; but till such disagreement the right to the bond is in both the husband and wife, and shall survive. In Sanford v. Sanford (45 N. Y. 723), it is held that if one loaning money takes a promissory note therefor, payable to the order of himself and wife, this imports a gift to the wife if she survive him, and delivery of the note to her by the husband is not necessary to perfect the gift. During the husband’s life such note remains subject to the husband’s control, and the wife has no legal interest therein, until his decease—that is, until his decease without having exercised his right to control the disposition of the note. See, further, as to right of husband to dispose of the dioses in action of the wife, by a sale for valuable consideration, the leading case in this State: Schuyler v. Hoyle, 5 Johns. Ch. 196. In 2 Kent's Com. 137, it is said the rule is, that if the husband appoints an attorney to receive the money, and he receives it, or if he mortgages the wife’s dioses in action, or assigns them without reservation for a valuable consideration, or if he recover the debt by a suit in his own name, or if he release the debt or novates the debt by taking a new security in his own name, in all these cases, upon his death the right of survivorship in the wife to the property ceases. The right of the husband to dispose of the interest of the wife acquired by the gift of the husband is not affected by the acts for the more effectual protection of the property of married women, act of April 7, 1848, ch. 200; April 11, 1849, ch. 375 (See section 3 of act of 1848, as amended by act of 1849. See Towl v. Towl, 114 Mass. 167).
    II. The policy being the instrument by which the payment of the amount insured was secured to be paid, whether the payment should become due before or after the death of Butterly, the assignment thereof by Butterly to McCormack for a valuable consideration, without any reservation, was an effectual transfer of the interest in the sum assured, whether the same should become payable before or after the death of Butterly, discharged of any claim of the wife as survivor, which was terminated by such assignment (See Jones v. Gibbon, 9 Vesey, 411; 2 Kent, 137).
    III. But, further, the convenant in the policy being with N. Butterly, as the assured, the legal title and interest was in him, and no suit could be brought at common law upon it except in his name or that of his executors or administrators (1 Chitty Pl. 3). His so taking it is evidence of an intention to retain the control of it, and without a delivery to the wife with intent to pass the title, o'r retaining it until his death without disposing of it, the wife could acquire no interest in it (Hicks v. Davis, 3 Md. Ch. 266 ; Carpenter v. Dodge, 20 Vt. 595 ; Scott v. Simes, 10 Bosw. 
      314; Reed v. Reed, 52 N. Y. 651. See also Fortesque v. Barratt, Myl. & Keene, 36; Stone v. Haskett, 12 Gray, 227).
    IV. The assignment of the wife was effective to pass any interest which she may be supposed to have had, if any, there being nothing in any statute at that time enacted, which required any acknowledgment before any commissioner or notary ; and the presumption of law being, that a party to a writing did read it, or was otherwise informed of its contents, or was willing to assent to its terms without reading it, where there is no evidence of fraud or imposition (See cases collected in Grace v. Adams, 100 Mass. 507).
    Y. Any interest which the defendant can be supposed to have acquired by the terms of the policy was contingent upon its continuance, by the payment of premiums for account or benefit of the original parties on days specified. And when, after the sale to McCormack, to be rid of the payment of further premiums which Butterly was under no contract or obligation to make, no provision was ever made for such payment by or on behalf of Mr. Butterly ; this should be deemed an abandonment of any such interest (See Baker v. Union Mutual Life Ins. Co., 43 N. Y. 283).
    
      LuJce A. LocJcwood, attorney, and Henry W. Johnson, of counsel, for respondent, among other things, urged:—I.
    Upon the facts proven and found, there clearly is no error in the conclusion of law found thereon : “ that the paper purporting to be an assignment of her right and interest, is inoperative and void.” If it was not her free act and deed, if it was not executed or delivered by her Icnowingly, understandingly and intentionally, it could not operate to deprive her of a single right, unless such facts or circumstances were shown as would create an estoppel against her. It was not claimed or pretended on the trial, nor is it suggested by any of the exceptions, that any such facts or circumstances existed ; and it is clear from the evidence that all of the essential elements of an estoppel are wanting in the case. The assignee dealt with the husband as the sole owner of the policy ; bargained with him for it; paid him for it; never saw the wife respecting it, and never paid her anything. For aught that appears from the evidence he did not require anything from her ; never examined the instrument signed by her, or made any inquiry respecting it, or did any act upon the faith of it.
    Upon this state of facts it clearly cannot be claimed or pretended that the instrument can be upheld as an estoppel within any well-considered authority (2 Bishop on Married Women, §§ 484-495; Tyler on Infancy and Coverture, 726).
    II. But the instrument signed by the defendant wTas inoperative and void for another reason. 1. The policy is a “wife’s policy” within the spirit and object, if not the letter, of the legislation of this State enabling the husband to make provision by insurance for the benefit, of his wife as a widow, as such legislation has been interpreted by the courts and by the enabling act of June 23, 1873. She did not, and could not, therefore, transfer any interest in the policy by the instrument in question (Eadie v. Slimmon, 26 N. Y. 9 ; Barry v. Equitable, 59 Id. 587 ; Barry v. Brune, 8 Hun, 400 ; Moehring v. Mitchell, 1 Barb. Ch. 264 ; Laws of 1840, ch. 80 ; Laws of 1858, ch. 187 ; Laws of 1862, ch. 656; Laws of 1870, ch. 277; Laws of 1873, ch. 281). 2. If the policy is not a “wife’s policy” within the authorities and acts above referred to, it constituted a valid insurance in favor of the wife at common law, and she was thereby constituted the appointee or beneficiary of the fund upon her husband’s death (Baker v. Union Mutual Life Ins. Co., 43 N. Y. 287 ; Lord v. Dall, 12 Mass. 115; Thompson v. Amer. Tontine Life and Savings Ins. Co., 46 N. Y. 674). 3. Being a mere appointee of the fund, no interest vested in her which could be the subject of assignment during the lifetime of her husband.
    III. The plaintiff’s case is to be considered only in the light of the instrument executed and delivered by Butterly to McCormack. That instrument was nothing more than what it purported to be on its face, and that was, an assignment of the policy as it then existed. It had undergone no change since it was issued. By its terms the insurance money was not payable to Butterly unless he should be alive on September 6, 1882, and the policy was then in full force. If he died before that day, leaving the defendant him surviving, and the policy in full force, then the insurers expressly stipulated and agreed to pay the money to her. The precise event has happened which, by the terms of the policy, makes the money ’ payable to her. Butterly has died, leaving the policy in full force and the defendant surviving.
    The sole effect of his assignment, therefore, was to vest in the assignee the same right to receive the money that he, Butterly, would have had if it had not been executed ; that is, a right to receive the money on September 6, 1882, if then living, and the policy should be then in force. As he is now dead, it follows as a necessary result, that the plaintiff can take nothing by the assignment.
   By the Court.—Sedgwick, J.

The learned judge held that the policy of insurance was protected by the statutes in respect of life insurance for the benefit of married women, and that, in 1872, when the wife signed the paper, which was in form her assignment, she had no right to assign it (Eadie v. Slimmon, 26 N. Y. 9 ; Barry v. Equitable Ins. Co., 59 Id. 587). A married woman possessed such a right, for the first time in 1873 (Laws of 1873, ch. 821). He thus impliedly held that her interest under the policy was not her separate estate, and she had no power of disposition over it as her separate estate. He further considered, that whatever the nature of her right was, her execution of the assignment was not her act, but it was the result of undue influence used upon her by her husband, which amounted to compulsion.

Undoubtedly (Barry v. Equitable Ins. Co., supra) if the means used by her husband" deprived her of mental or moral power to guide her actions, for herself, her signature was not voluntary. It was extorted from her. She had all the faculties for free action. She could not be deprived of those, but means might be used to stop their function.

The point to be scrutinized is the condition of the facility of volitión as determined by external circumstances, beyond her control. These circumstances are to be examined to ascertain their effect upon the will. Their character in other regards is immaterial. If the result was, that she was induced or persuaded to act, her signature was voluntary. If she was compelled to act, it was involuntary. The kind and amount of force used in such a case has the same relations that it would have in a charge' of robbery, as distinguished from larceny or false pretenses.

What will compel the wife to sign may depend upon her temperament and the past relations between her and her husband. There may not be much to testify to, so far as words or threats go, but the absolute- fact may be, that resistance to his will or noncompliance with it, was not possible. A judge must be very cautious, but in a case like the present, the wife herself is the witness to testify to her own state of mind. She swore she signed because she was afraid of her husband. The judge was bound to rest upon the fact, if she were credible. There was testimony to support the finding of fact on this point, and it must be sustained.

The learned counsel for the appellant takes the position that the policy was not within the statutes that regulate life insurance for the benefit of married women. He argued that the statute meant to protect against creditors, the use of premiums paid from the husband’s moneys in case the benefit was to go to the wife, but in the present case the policy was in fact for the benefit of the husband, as he would have the insurance money if he lived to the year 1881. The whole premium was paid in solido for the husband’s benefit, and therefore the husband’s creditors would have a right to take it.

I think this is correct, and it meets the position that the insurance could not be assigned by the wife, by reason of the policy of the statute; but it does not meet the position that her assignment was obtained by compulsion.

Therefore the judgment must be sustained, unless the husband, at the time of his assignment, was possessed of the whole legal and beneficial property and interest in the policy, and the wife had no interest or property in it. .If the wife, however, had a right of action, in the nature of a gift by her husband, it became her sole and separate estate. If it was her separate estate, he had no power, in law or equity, to dispose of it. Before the statute to protect the estates of married women the husband had power in equity to give directly and without trustees personal property to his wife, so that it was free in equity from his power of disposition. By our statute, a gift by husband to wife, becomes her separate property for all purposes. The form of the gift is not important, if it appear that there was an executed intention to give (Stewart v. Kissam, 3 Barb. 493).

In cases like the present, the right or interest proceeds from the husband voluntarily. His acts and intentions in respect of it are to be entirely respected, and the limitations and modes of control which he presented are to be entirely preserved.

It is said that he never parted or intended to part with his control, because the promise is wholly made to him, and the policy was kept in his own possession. The only clause which seems to give the wife an interest (viz., that which makes it payable to her, if he die before 1881), was dictated by him, and did not affect any right or interest of the company. It was not a stipulation for their beneiit.

If that clause were not in the policy, the husband could by law, without leave of the company, shape an assignment that wuuld have the same effect as the clause, and could keep any degree of control over the assignment he pleased. Therefore it is argued, that so long as the policy is not delivered to the wife, the maxim applies, viz., Expréssio eorum qucB tacite insunt nihil operatur.

This argument was used in Connecticut Mutual Life Insurance Co. v. Burroughs, 34 Conn. 305.

A married woman procured an insurance on her husband’s life, payable to her, her administrators and assigns, for her sole use. The policy provided that in case of the death of the wife before the death of the husband the amount of said insurance shall be payable after her death to her children for their use, or to their guardian if under age.”

Before the husband’s death she had assigned the policy to the defendant. After her husband’s death, the insurance money was claimed by her child. The court held that the child’s interest was protected by a statute of Connecticut, and could not be assigned by the mother. The court also looked at the case irrespective of the statute, and as if the premiums had been paid by her from her separate property. The suggestion liad been made that the provision in favor of the children was an expressed but unexecuted intention to give the sum insured to her children, which she could abandon at pleasure. The court was of the opinion that “ the intention was not to give a sum of money to the children but to make a life policy in a certain event payable to them. The intention was not only expressed but executed. The contract was complete, and the money when due was payable to the children, without any further act on her part.”

It cannot with certainty be said that the law will deem a voluntary provision for wife or children final and irrevocable, under different and less significant circumstances than would uphold a voluntary disposition in favor of a person with no tie of blood or marriage. A meritorious consideration is hardly more than an expression used by judges to intimate a justifiable inclination to uphold a settlement. It is safest to consider that in all cases there must be a delivery, or an execution of the intention to benefit without delivery. In the present case, so far as intention goes, the omission to deliver the policy is not conclusive, for the form was such that the husband would retain it, to use for himself, in the contingency of his living until the year 1881.

In cases of choses in action actual delivery is not always necessary In Scott v. Sims (10 Bosw. 314; Borst v. Spelman, 4 N. Y. 288), and in Sanford v. Sanford (45 N. Y. 726), the law is applied that if a husband take a note to himself and his wife or to her alone, then in case she survive him, the action on it survives to her the wife, and the form of the security implies a design by the husband to benefit the wife. It was said that the wife had no legal interest in it during the husband’s life. Judge Beckham said specifically, in Sanford v. Sanford, that a delivery to the wife was unnecessary to perfect the gift. These cases are like the present, excepting that in them the husband retained but did not exercise a power and right of disposition, during his Jife, and in this the husband in his life did all in his power to convey his whole right and interest in the policy, and also that in them the promise was made to the wife solely or jointly, directly, and in this, the promise is made solely to the husband. .

“ It is not every promise made by one to another, from the performance of which a benefit may ensue to a third, which gives a right of action to such third person he being neither privy to the contract nor to the consideration (Simson v. Brown, 68 N. Y. 362; Garnsey v. Rogers, 47 N. Y. 233); yet the form and nature of the contract of insurance and the point at which the wife could only reap the benefit of the provision in her favor,—that is, after his death,—show clearly that it was the husband’s intent that she should have a right of action.”

The mere form of this promise might not divest the husband of all power over the wife’s interest which he intended to bestow on her, but the contemporaneous acts, voluntarily and designedly adopted by him, were such as to make all else that was necessary to an executed transfer to her a matter of form. If the owner of personal property make an explicit declaration that he holds it in trust for another, it is an executed trust, although there is no doubt that no transfer and re-transfer was made. The reason of this must be, that, as owner, he has the power to furnish conclusive evidence that the result or effect of a transferring by him and taking a re-transfer to him in trust has occurred.

The rest is but a form which he, as owner in his own right, has the power to dispense with. Even in delivery of chattels as a gift, the form of relinquishing possession by the donor and the taking of it by the donee immediately, may be dispensed with, in the instance of the chattels being within the power of the two parties,- and both act as if delivery and acceptance had taken place.

In this case, outside of the effect of the form of the policy, the husband declared in writing to the company that it was for the benefit of his wife, &c., and of himself, and upon that the company made the special promise, so far as it was for the benefit of the wife, to the husband acting in her behalf,—whether as her agent or trustee is immaterial. All that might have been done by him, in the shape of an assignment to her, and notice of that by him on her behalf to the company, would not have necessarily involved any action by her personally. The legal result would have been what he effected without the unnecessary form.

I am, therefore, of the opinion that under the circumstances the original delivery of the policy was to the husband, in her behalf and as well as his, and that upon that delivery she became vested with an interest which the husband could ■ not divest without her consent.

The judgment should be affirmed with costs.

Curtis, Ch. J., and Freedman, J., concurred.  