
    Victoria R. Sheldon, Plaintiff, v. Chemung Canal Bank, Defendant.
    (Supreme Court, Erie Equity Term,
    May, 1910.)
    Gifts — Delivery and acceptance — In general.
    The right of the person to whom a policy of life insurance is payable on the death of the insured to the possession of the policy, where the policy also provides that if the person insured shall live for forty years the amount shall be payable to him, is not an exclusive right but a right to be enjoyed in common with the person insured. Where the person insured delivered to such payee such policy absolutely, with the intent of giving to her the right to receive the money upon the expiration of the forty year period, such delivery is a valid execution of the intended gift and vests the title in the donee.
    Action to recover avails of insurance policy, issued upon the life of plaintiff’s husband.
    Bartlett & Chamberlain, for plaintiff.
    Reynolds, Stanchfield & Collin, for defendant.
   Brown, J.

On July 24, 1866, the /Etna Life Insurance Company issued its policy of insurance upon the application of the plaintiff, agreeing to pay to the plaintiff the sum of $2,000 in the event that her husband, Frederick 31. Sheldon, should die within, forty years; and in the event that he should survive that period the said sum was to be payable to him, the said Frederick 3d. Sheldon. The policy was delivered to Frederick M. Sheldon, who for about six years paid the premiums thereon. At that time, about 1872, the policy became self-sustaining, the dividends and accumulations thereon being sufficient to meet the annual premiums. About 1872, Frederick 31. Sheldon handed the policy to his wife, -the plaintiff, saying, as the plaintiff testifies, “ he wanted me to have that, it was mine, he wanted to give it to me,” and, as testified to by Frederick 3d. Sheldon, “ I think about six years after it was taken out I gave it to my wife; I gave it to her; I said that I gave her all .my interest in it; I gave her this policy with all interest in it, my interest included.”

It is the contention of the defendant that such transaction did not constitute a valid gift by Frederick 31. Sheldon to the plaintiff of his claim to the insurance fund of $2,000 that would become payable to him July 24, 1900, for the reason that the policy was the property of the plaintiff, that she was entitled to its possession, and that the delivery thereof to her could not constitute a gift of anything. While it is true that the plaintiff at all times, from July 24, 1866, up to July 24, 1906, was entitled to the possession of the policy in so far as it secured to her the right to collect the insurance moneys that would become payable to her in the event of the death of Frederick 3d. Sheldon during that time, yet such right to its possession was not exclusive. Frederick 3d. Sheldon was entitled to the possession thereof during the same period, in so far as the policy secured to him the right to demand such insurance moneys at the expiration of the forty years. The only evidence of the claim of Frederick 3d. Sheldon to such insurance moneys, in the event that he should survive that period, was the policy itself; it was the muniment of his title; and, while such delivery of the policy did place in plaintiff’s physical possession the evidence of her claim to the insurance moneys payable to her in the event of the death of Frederick M. Sheldon during the forty years, it also at the same time was an actual or symbolic delivery by Frederick M. Sheldon to the plaintiff of his claim to the insurance moneys in the event that he survived that period. The conclusion is reached that Frederick M. Sheldon, in 1872, made a valid and effectual gift to the plaintiff of all moneys that accrued to him in 1906. Such fact made the general assignment in 1893 by Frederick M. Sheldon to W. Chalmers Peebles for the benefit of creditors ineffectual as a conveyance of the policy or any interest therein; and the defendant, by or through such assignment, obtained no title to the insurance moneys accruing July 24, 1906. The fact that Frederick M. Sheldon, in 1896, executed a formal written assignment of the policy of insurance to the plaintiff, and the fact that the plaintiff, in presenting her claim to the insurance company in 1906 for the moneys agreed to be paid to Frederick M. Sheldon, referred to the written assignment of 1896 as her title thereto, do not impeach or destroy her title acquired in 1872.

The plaintiff is entitled to the moneys paid into court. Judgment is accordingly ordered, with costs. Let findings be prepared.

Judgment accordingly.  