
    Smith v. National Ben. Soc. of New York.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Insurance—Conditions of Policy—Suicide.
    Where one insures Ms life with intent to commit suicide, and so provide for his family and creditors, and, while sane, carries out that intent, the policy is void though it does not stipulate for its avoidance by the insured’s suicide.
    8. Same—Beneficiaries—Appointment of Creditor.
    Under Laws N. Y. 1883, c. 175, § IS, giving the insured the right, with the consent of the company, to change his beneficiary from time to time without the consent of the beneficiary, when a creditor has been substituted as beneficiary in place of the insured, he acquires no separate standing, as assignee or otherwise, so as to exclude subsequent declarations of the insured. Until the latter’s death, the ownership of the policy is in Mm.
    Appeal from circuit court, Kings county.
    Action by Fred H. Smith against the National Benefit Society of the City of New York, upon a policy of insurance on the life of John Tyler, in which plaintiff is designated as beneficiary. Verdict and judgment for defendant, and plaintiff appeals.
    Argued before Barnard, F. J., and Dykman and Pratt, JJ.
    
      Wing, Shoudy & Putnam, for appellant. Andrew J. Perry, for respondent.
   Barnard, P. J.

The plaintiff was creditor of one John Tyler to the amount of over $10,000. Tyler in June, 1886, procured from the defendant an insurance on his life for that sum, and subsequently, under a rule of the defendant, the plaintiff was substituted as beneficiary under the policy. Tyler died November 11, 1886. The plaintiff furnished proofs of death, and the loss was not paid. This action is brought to recover the amount of the policy. The defense is that the insured (Tyler) obtained the policy with the intent to commit suicide, and thus to defraud the insurance company out of the money. The policy contained no clause that death by suicide avoided the policy. The proof is abundant that the deceased obtained the policy with the intent to take his own life, and that he was sane at the time he obtained the policy, and the jury has so found. The deceased was poor, and frequently in need of money, and within the year previous to his death obtained insurance on his life in different companies to the amount of $282,000, divided among 36 different companies. On the day before his death he wrote to his mother that all his policies were in companies which make “ no conditions as to cause ■of death; * * * so that my plans are so laid that if 1 cannot benefit or help myself I can help those whom I should help if I could. ” On the day preceding the date of tills letter, he had given directions for his burial, and indicated suicide by the words, “I assume all responsibility for this and other acts of mine.” The policy was clearly a fraud upon the defendant, without any consideration that suicide avoided the policy. The deceased designed to get a large aggregate of insurance. He was unable, ánd did not intend, to continue the payment of the premium until death came naturally, but his purpose was to provide for creditors and family by causing his own death. This was a legal fraud in its inception, and a policy thus obtained never had any binding force in his hands.

The deceased had the right, with the consent of the company, to change his beneficiary from time to time, without the consent of such payee or beneficiary. Chapter 175, Laws 1883, § 18. Under this section the plaintiff was designated, and the designation was never changed. The plaintiff got no separate standing by the designation under the policy before the date of the death. Before that, the sole right was in Tyler. Hellenberg v. District No. 1, etc., 94 N. Y. 580. The deceased, by his designation of plaintiff as beneficiary, did not make a case to exclude evidence of his declaration. He stood as owner until he died, and the plaintiff was in no better condition in respect to the policy than if the plaintiff’s representative had brought the action. The case is therefore different from the class of cases which hold that evidence of the declaration of an assignor cannot be received to impeach the title of the assignee, and falls under Swift v. Insurance Co., 63 N. Y. 186. The charge of the judge was correct. The jury were told that if the deceased took out the policy with the intent to commit suicide, and did in fact commit suicide in pursuance of that intent, the action failed if the deceased was sane when he took his own life, if he did so take it. This covers the whole case, and the request to introduce an application of other questions on probable conclusions from the evidence was properly refused. These considerations seemed to cover the entire case, and therefore the judgment should be affirmed, with costs. All concur.  