
    Catharine Cellery, Respondent, v. The John Hancock Mutual Life Insurance Company, Appellant.
    
      Industrial insuranceon the life of a husband — where the wife signs the “proposal,” in which sheis named as the beneficiary, the husband, who signs the “ application ” enumerating the conditions, may change the benefieia'ry.
    
    An insurance agent sent for by a wife to insure the life of her husband, produced a printed blank called a “ Proposal for Industrial Insurance,” which contained certain questions as to the name, residence, age, etc., of the person to be insured, to be signed by the “ person to be insured, or * * * the beneficiary (if husband or wife).”- The “proposal” was signed by the wife, and the insurance was stated therein to be for her benefit.
    The agent at the same time produced another printed blank called an “Application for Insurance ” which contained various questions concerning the age, occupation, relatives and health of the person to be insured.. Under the questions was printed : “I declare and warrant that the representations and answers made herein are strictly correct and true; that they shall form the basis and become part of the contract of insurance, if one be issued; that any untrue answers will render the policy null and void, and that said policy shall not be binding upon the company unless upon its date the person to be insured shall be alive and in good health. The right is also reserved to change the beneficiary1 from time to time, with the consent of the company, by written notice to said company, but payment upon presentation of the policy and premium receipt book shall be a discharge to the company.” The “application” was signed by the husband. The policy issued thereon made the ‘ ‘ application ” a part thereof, but neither paper contained a reference to the “proposal.”
    
      Held, that the husband was entitled to change the beneficiary without the consent of his wife.
    Appeal by the defendant, The John Hancock Mutual Life Insurance Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 15th day of October, 1900, affirming, upon appeal, a judgment of the City Court of Albany in favor of the plaintiff.
    On January 12, 1898, the defendant issued a policy, whereby it agreed, in consideration of fifteen cents to be paid to it on noon of Wednesday in each week during the life of John J. Cellery, to pay “to the beneficiary hereunder ” the sum of $156 within twenty-four hours after satisfactory proof of the death of the said insured, John J. Cellery, subject to certain conditions in such policy contained.
    
      John J. Cellery died on December 23,1898,. and on the thirtieth day of that month the defendant paid the amount due under such policy to his mother, Mary Cellery. His wife, Catharine Cellery, claims that she was the beneficiary entitled to the amount due thereon, and brought this action in the City Court of Albany to recover the same. She recovered a judgment in such court, which was affirmed in the County Court, and from such judgment of affirmance this appeal is brought.
    Further facts appear in the opinion.
    
      George H. Stevens, for the appellant.
    
      Richard 0. Bassett, for the respondent.
   Parker, P. J.:

The circumstances under which this policy was issued are ■ substantially as follows:

A printed blank, called a Proposal for Industrial Insurance,” was produced by au agent of the company in response to the request of the wife that he insure her husband, which proposal contained certain questions to be answered, viz.: The name, residence, age, place where born, race and occupation of the person to be insured, whether the company had ever refused to issue a policy on his life,, whether he was now insured, the amount of the premium, and the person for whose benefit the insurance is desired.

Upon such blank it was provided that the same, when the answers were written thereon, should be signed by the “ person to be insured or * * * the beneficiary (if husband or wife).” The answers to the questions were filled out upon such blank and the same was signed by the said Catharine Cellery. The person for whose benefit the insurance was desired was therein stated to be “ Catharine Cellery” and the premium was given at “15” cents.

Another printed blank called an “ Application for Insurance ” was at the same time produced by the agent, which contained various questions concerning the age, occupation, relatives and health of the person to be insured. Answers to such questions were made by said John J. Cellery and written therein. Under such answers the following provisions were printed, viz.: “ I declare and warrant that the representations and answers made herein are strictly correct and true; that they shall form the basis and become part of the contract of insurance, if one be issued; that any untrue answers will render the policy null and void, and that said policy shall not be binding upon the company unless upon its date the person to be insured shall be alive and in good health. The right is also reserved to change the beneficiary from time to time, with the consent of the company, by written notice to said company, but payment upon presentation of the policy and premium receipt book shall be a discharge to the company.” And under all was the signature of “ John J. Cellery, Applicant,” which was witnessed by “E. H. Humphrey, M. D.”

. Thereafter the policy in question was issued. Among other things it provided as follows : If any statement or answer in the application herefor, which application is hereby referred to and made a part hereof, is in any respect untrue, * * * then this policy shall be void.” It further provided, “ this policy and the premium receipt book must be returned before any claim can be made.”

A copy of such application ” was indorsed upon the back of such policy.

The evidence does not disclose that the wife ever had possession of this policy. Although she testifies that for some months she paid the premiums of fifteen cents per week out of her own earnings, she does not state that she ever had possession of the book in which they were receipted. Under the evidence, she may have paid them through her husband, and the defendant have had no knowledge that it was receiving her money. She testifies that she called the agent to her house and her .husband took out the insurance. In September of such year the husband left his wife and went to his mother’s, was taken sick and remained there until he died, on December 23, 1898. His mother seems to have paid the premiums of fifteen cents per week after the deceased left his wife. On October eighth the husband signed a written application to the company that it make the policy on his life for the benefit of Mary. Cellery, his mother. Such application was made upon a blank furnished him by the company, in which was printed a reservation to change the beneficiary, similar to the one above quoted. Upon the back of such blank, the agent of the company answered the question: “ Why is change made ? ” to the effect that the “ present beneficiary is unworthy. Neglects, disrespects and disobeys her husband. A second wife.” The company consented to the change, continued to receive the premiums of fifteen cents per week from the mother until the death of the insured, and in a few days, thereafter received the policy and premium receipt book from the mother and paid the amount due on the policy to her. The plaintiff testified that the husband, when he left her, took the. policy and book away with him.

■ The wife has been allowed to recover in this action upon the theory that she had taken out this insurance upon her husband’s life for her own benefit; that she was the person with whom the company contracted, and that it was to her alone that the right to change the beneficiary was reserved: that never having consented to a change, she was the. person to whom, upon the death of the insured, the policy was payable. Without at all questioning her right to make such á contract, the question arises whether, under the facts of this case, it can be said that she has done so. I think hot.

It is true that she was the one who asked that the company insure her husband’s life for her benefit. A.nd it is-possible that she paid the premiums up to about September fourteenth, under the belief that she had a contract with the company to that effect; but, after all, the contract must be found in the writings, and although it would be difficult to hit upon a plan that would be more confusing than the one before us, I conclude that no contract with this plaintiff is contained therein. The “ application ” above referred to is by the terms of the policy made a part of the contract, and it is indorsed on the policy. In neither of those papers does the plaintiff’s name appear. The “proposal” which she did sign is not referred to in either of them, and by thus including the “ application ” and omitting the “ proposal,” it would seem that the intent was to exclude the latter as a part of the contract. In this “ application,” which is signed by the husband himself, is the provision in which is contained the warranty that all the statements contained in such application ” are true. It is the husband who therein agrees that they shall become a part of the contract of insurance, and that a .breach of any such warranty shall avoid the policy. It is he who agrees that unless the insured is alive and in good health when the policy is dated it shall not be binding upon the company. Surely each one of these agreements is one that could be effective only when made by the party with whom the company was contracting ; and the fact that the husband’s signature, instead of the wife’s, is signed thereto repels the idea that the company was contracting with her. So, also, it is in this very provision that the right is reserved to change the beneficiary. To whom can it fairly be said that such right is reserved, save to the very person who has entered into the agreements above stated, and whose signature is subscribed thereto. Had the husband signed the “proposal” all the papers would have pointed to the one conclusion, that the husband made the contract of insurance for "the benefit of his wife, reserving to himself the right to change such beneficiary with the company’s consent. Had the wife signed the “ application,” then the contract would have been such an one as she claims to have made, and upon which she has been allowed to recover.

The confusion which arises is found in the fact that nowhere in the policy or “ application ” is it stated for whose benefit the insurance is desired. The policy agrees, upon thé death of the insured, “ to pay to the beneficiary hereunder; ” and, as above stated, the right is reserved to “ change the beneficiary from time to time, * * *” but unless resort is had to the “ proposal ” no beneficiary has neen agreed upon or suggested. Hence, it is claimed that the conti’act is incomplete without incorporating- therein the “ proposal,” and that considering such “proposal” a part of the written contract, the wife becomes a party to the same. Such a method of obtaining insurance and executing the papers therefor is admirably calculated to confuse all parties to the contract. The wife executes the paper designating the beneficiary; the husband executes the agreement, fixing the terms and conditions upon which the policy is issued and the insurance procured. But, whatever may have been the purpose of such a mixture, it must be conceded, I think, that no undertaking can be found in those papers on the part of the company that upon the husband’s death the wife alone should be deemed the beneficiary under such policy. Nor can I find any agreement therein that reserves to her the right to name such beneficiary. On the contrary, I cannot avoid the conclusion that such right is by the terms of the contract reserved to the husband, and the only part she took in the arrangement was to name a beneficiary, to which her husband then assented..

Her rights under the contract as it was actually made were those of a' beneficiary merely and were not absolute and irrevocable, inasmuch as the contract itself permitted the husband, with the consent of the company, to change the beneficiary- as he might desire. Such was the construction. of the contract which the company adopted and upon which it has acted, and in my judgment -it was warranted in doing so. The conclusion, therefore, is that both of the judgments were erroneous and must be reversed.

All concurred.

Judgment of the County Court and of the City Court reversed on the law and facts and new trial granted in City Court, with costs to appellant in both courts. Order to be settled by Edwards, J.  