
    Frederick H. Cyrenius, as Administrator, etc., App’lt, v. The Mutual Life Insurance Company of New York, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1895.)
    
    Insurance—Life—Beneficiary.
    Where he policy of insurance states the consideration therefor to be the payment of a specified sum by the son of the person on whose life the policy is issued, and that the amount insured was, on the death of the latter to be paid to the “assured,” and, in the written application which was signed by both parties, the son is described as the applicant and the person for whose benefit the insurance was intended, the administrator of the father cannot maintain an action upon the policy to recover the amount of insurance.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order which reversed a judgment in favor of plaintiff entered upon a verdict and ordered a new trial.
    
      William Tiffany, for app'lt; Edward Lyman Short and William H. Shepard, for resp't.
    
      
       Affirming 55 St. Rep. 897.
    
   O’Brien, J.

This was an action upon a life insurance policy of $3,000, dated Juno 18, 1873, whereby the defendant insured the life of one Alvin Cyrenius, who died on the 6th of June, 1877. This action was commenced by his widow, as administratrix, who died during its pendency, and the present plaintiff, her successor in office, was substituted in her place and continued the action.

The action was commenced in 1877, and has since been before the courts in various forms and with varying results. On the first trial the plaintiff recovered, but the judgment was reversed by the general term. On the second trial there was a disagreement of the jury, and on the third trial the plaintiff again' had a verdict, but the judgment was again reversed at general term. From this judgment of reversal the plaintiff has appealed to this court.

We have given attentive consideration to the oral and written arguments oí the learned counsel for the plaintiff and, without attempting to express an opinion upon all the numerous and interesting questions discussed, we think it quite sufficient to say that the single point upon which the decision of the court below was placed cannot be successfully answered. That was that the plaintiff, as the administrator of Alvin Cyrenius, has no interest in the contract or the cause of action. The other defense, that the policy lapsed before the death for non-payment of the premium, is also serious, but as that possibly involved the consideration of questions of fact, it need not be further referred to. The other question is fully discussed in the opinion below, and, as we concur in its reasoning and result, it is scarcely necessary to follow the line of argument by means of which the learned counsel for the plaintiff has reached another conclusion. The action was one at law for the recovery of money due or payable to the plaintiff in his capacity as personal representative, and unless the policy was payable to his intestate, or came to the hands of the administrator as assets of the estate, he cannot recover. The defendant insists that the policy was payable to George A. Cyrenius, the son of the deceased, who before the death of the father, assigned it to the plaintiff individually, and, therefore, that the father, at his death, had no interest in it, and none passed to his personal representatives. That the son did assign the policy, and, prior to , the assignment, dealt with it as his property is undisputed. In behalf of the plaintiff, it is urged that the application, which is signed by both the father and the son, shows that Alvin intended to and- did insure his life for the benefit of his estate. This view, it is claimed, is re-inforced by other facts in proof, such as the payment of some part of the premium by the father. We think that nothing appears to change the effect of the plain words of the contract itself, the material part of which reads as follows:

“ The Mutual Life Insurance Company of New York, in consideration of the representations made to them in the application for this policy, and of the sum of one hundred and ninety-eight dollars and eighty-seven cents, to them duly paid by George A. Cyrenius, son of Alvin Cyrenius, and of the annual payment of a like amount on or before the 18th day of June in every year during the continuance of this policy, do insure the life of the said Alvin Cyrenius, of Scriba( in the county of Oswego, state of New York, in the amount of three thousand dollars for the term of his. natural life ; and the said company do hereby promise and agree to pay the amount of the said insurance at their office, in the city of New York, to the said assured, his executors, administrators or assigns, in sixty jdays after due notice and proof of the death of the said person whose life is hereby insured', the balance of the year's premium, if any, being first deducted therefrom.”

In the written application referred to and made a part- of the contract, George is described as the applicant for the policy and the person for whose benefit the insurance was intended. Reading all the papers together, no other construction is possible except that adopted by the court below, that the contract is one insuring the father's life for the benefit of the son. The father’s life, in which it is stated the son had an-interest, was the subject of the insurance, and naturally and properly enough he was required to ■answer the questions and sign the application. Rut the son is the beneficiary. He is the assured to whom the defendant’s promise to pay was made and to whom the insurance was payable in '.he event of death, and this promise or obligation was outstanding m the hands of his assignee when the action was commenced and"s ■still so held. No construction of the language used in the policy and the application can fairly be adopted to make the contractor promise one for the benefit of the father's estate. There was no legal or equitable assignment to the father or to his personal representatives, and the extraneous facts and circumstances shown are all consistent with the purpose and intention of all the parties as expressed by the language of the policy. Ferdon v. Canfield, 104 N. Y. 143; 5 St. Rep. 583 ; Luchs v. Conn. Mut. Life Ins. Co, 108 U. S. 498; Walsh v. Mut. Life Ins. Co., 133 N. Y. 418; 45 St. Rep. 123.

The learned counsel for the plaintiff contends that the contract may be regarded as one made with and payable to the father for the benefit of his son, the father being a trustee of an express trust for the benefit of the son which upon his death devolved upon his administrator. There are many difficulties in the way of this theory, both of form and substance, even if such a construction could Ido given to the contract. We think that such a view of the legal relations of the parties is not possible. It would be doing violence to the language of the contract to say that it was made by the defendant with the father and in his name for the benefit of the son. It is very plain, we think, that it was made with the son and in his name for his own benefit. The fact that the father signed the application with the son is not a circumstance of much significance as against the language of the policy itself. The defendant before entering into the contract needed to be informed in regard to the age, health and general history of the person whose life was the subject of the risk. No one could furnish that, but himself! This was the main purpose of the father’s signature to the application. But even in that paper when the question was asked by the defendant with respect to the person for whose benefit the insurance was applied for, the answer is made that the son is such person. Then the amount of the -insurance in the event of death is by the terms of the contract made payable to the assured and this term clearly refers to the son and not the father either as trustee or otherwise. The contract having been made with George in his own name for his own benefitire alone or bis assignee is entitled to sue upon or enforce the defendant’s promise.

The judgment should be affirmed and judgment absolute ordered for the defendant.

All concur.

Judgment affirmed.  