
    Griswold v. Sawyer et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 4, 1890.)
    Life Insurance—Beneficiaries—Personal Representatives.
    A life insurance policy payable to the “ legal representatives ” of the insured is payable to his executor or administrator, and not to his heirs or next of kin, unless the circumstances showthat it was intended for their benefit. Fish, J., dissenting.
    Appeal from judgment on report of referee.
    Alfred H. Griswold died at Whitehall, N. Y., December 4, 1888, intestate and insolvent, leaving a widow, Susan K. Griswold, and seven children. Deceased left.a paid-up policy of life insurance of $2,453 in the Connecticut Mutual Life Insurance Company, of Hartford, Conn., payable to his “legal representatives.” After his death the widow and children claimed the money, and demanded the same from the insurance company. The administrators also claimed it. The widow commenced an action against the insurance company to recover the money, and the children and personal representatives of decedent were made defendants. The insurance company, admitting their liability and willingness to pay the amount of the policy, made application for permission to pay the money into court; and, on doing so, the action was discontinued against them, leaving the widow and children and administrators to determine their respective rights to the money. The cause was, by consent of all parties, referred to Hon. James W. Houghton, county judge of Sara-toga county, to hear and determine. A trial was had, and the referee reported and adjudged that the widow and children were entitled to the money. Judgment was entered on the referee’s report, and the administrators appeal.
    Argued before Learned, P. J., and Landon and Fish, JJ.
    
      Otis O. Dennis, for appellant. Charles G. Davis and Potter & Lillie, for respondents.
   Learned, P. J.

This is a case in which the sympathy of the court must be in favor of the widow and children. But we ought not to be influenced by sympathy to give the amount to them because they need it, and because it will be a small sum to distribute among all the creditors. The simple question is, what does the contract of insurance mean? In the very brief testimony given, it is not stated to whom was payable the old policy, which was surrendered in 1879, when the present policy was issued; but, under the decision in Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. Rep. 267, we may infer that that was not payable to wife or children. If it had been, the insured could not have surrendered it, and without doubt, in that case, the new would in its language have followed that of the old. There are no circumstances which can aid in the construction of the policy, except the fact that, at the time when it was issued, the insured, who had previously been a man of large means, had become insolvent, and had lost his property, and that large judgments had been recovered against him. Whether those judgments had since been paid, and what was his pecuniary condition at his death in 1888, do not appear; and even the fact of insolvency, in 1879, is not found by the referee. The referee finds no extraneous facts on which to base his construction of the instrument. He finds nothing, even, as to the intention of the assured, which, the respondents assert, was to benefit his wife and children. On the other hand, the appellant intimates that the assured had paid off his debts. It is quite doubtful whether his pecuniary condition throws much light on the terms of the policy. There can be no doubt that the ordinary meaning of the words “legal representatives” of a deceased person are his executors or administrators, as the case may be. It is true that the context of a written instrument may sometimes require a different meaning. Nothing in the context here requires anything but the ordinary meaning. Nor is there anything in the circumstances which shows that the deceased and the company had any other meaning in view. The policy was not ¡issued in anticipation of approaching death. The insured lived some nine years after. There is no reason to think that he intended to deprive himself of the power of transferring and disposing of the policy. His embarrassed financial condition might naturally make him desire to have some control over this contract, so that, if occasion required, he might use it. He might have expected ' to get free from his debts. He might also have preferred that the amount secured should, at his death, be used to pay his debts, if any remained, rather than it should go to his next of kin; wishing to be just, before he was generous. There is another consideration which might have deterred the insured from making this policy payable to his wife; and that is the restriction of chapter 277, Laws 1870. Masten v. Amerman, 20 Abb. N. C. 443. The insured had had policies amounting to $25,000, and the yearly premiums may very possibly have exceeded $500. I see, then, nothing to take the words in question out of their ordinary meaning, and the ordinary meaning should prevail when there is no need of any other. The natural and obvious meaning should be taken. McCluskey v. Cromwell, 11 N. Y. 593. An examination of the contract itself strengthens this view. It was a printed form. The printed words “legal representatives” followed a blank space evidently left for the name of the beneficiary. In this blank space was written the word “his,” and the rest of the space was filled with red lines.’ Had the wife or children been intended, their names or designations would have been inserted in this blank space. In the case oi Drake v. Pell, 3 Edw. Ch. 270, a will gave property to a child of testator, and, if the child died after 21, then to “the heirs, devisees, or legal representatives of the child.” The court held that “legal representatives” there meant “next of kin,” who were to take the child’s share of the personal estate, and who would take directly, and not through executors of the child. The context and connection made this plain. Greenwood, v. Holbrook, 111 N. Y. 465, 18 N. E. Rep. 711, was the construction of a written agreement made on settlement of a controversy over a will. The widow contracted to pay during widowhood a certain part of the income of the estate to each child, and, in case of the child dying, to its “legal representatives.” A child died, and bequeathed her interest to her husband, making him executor. The brothers of the child (who left no issue) claimed the income against the husband. The court said there would have been no occa-' sion to add the words “ legal representatives, ” because a contract to pay would have passed to the executor; aud they held the brothers to be entitled, as next of kin,.keeping in mind the original provisions of the will. In both of these cases it will be seen that there was to be a payment to a child of the person from whom the property came, and, in case of death, to the legal representatives of such child. Thus the gift, after the death of the child, was like a remainder over, which would go to some remainder-man, and would not be a part of the child’s estate. The present case has no analogy. But we may test this question in another way. Can there be the least doubt that the insured, during his life-time, could have assigned or surrendered this policy? If so, he was the absolute owner, and no one- but himself had any interest in it as beneficiary. Thus it became part of his estate at his death. If, on the other hand, as the respondents claim, the words “legal representatives” now mean “children,” (and it does not seem to be asserted that they include the wife, Tillman v. Davis, 95 N. Y. 17, 25,) then they bad that meaning during the life-time of the assured, and the company would have been bound to know that the policy was payable to the children. See Whitehead's Case, ut supra. We must give the policy the meaning which it had when it was executed. The payees were designated at that time. If executors and administrators were not intended, were the next of kin intended, whoever they might be? Then the policy was not solely for descendants. Were children intended? But, unless they survived him, they would not be his representatives. It does not seem to me that the company would have had any reason to think that the assured was not the owner of the interest in the policy. It may be that men often take out policies on their lives for the benefit of their families. But this is not the universal case. Men who have no families take out policies. Others take out policies as investments. If this decision is to stand, then if a man is insolvent, and has children, the words “executors and administrators” on his policy will also have to be construed to mean “next of kin.” Of course, I do not say that the words “legal representatives” can never mean “next of kin” or “heirs.” When the context requires, or where the situation of the estate compels, then, of course, courts may give to the words a meaning thus made necessary. But there must be something more than a guess as to the probable wishes of the party to the contract, when those supposed wishes could have been made unquestionable by three words. The judgment should be reversed, referee discharged, and new trial granted, costs to abide event.

Landon, J., concurs. See post, 565. Fish, J., dissents. See post, 960.  