
    Lane v. De Mets.
    
      (Supreme Court, General Term, First Department.
    
    February 11, 1891.)
    Life Insurance—Description of Beneficiaries.
    Policies of life insurance were for the sole use of the wife of the insured, if living, “and, if not living, to the children of said person whose life is hereby insured, or their guardian, for their use, or, if there be no such children surviving, then to the executors, administrators, or assigns of said person whose life is hereby insured. ” The insured died, leaving surviving a daughter and three grandchildren, the issue of a son who had died after the issuing of the policies. Held, that the daughter, being the only child of the insured who survived him, was entitled to the whole of the moneys payable under the policies.
    Appeal from special term, New York county.
    This action was brought by Marietta L. Lane, executrix, etc., of Richard H. Lane, for a judicial construction of two policies of insurance upon the life of Maltby G. Lane. The policies were issued by the New York Life Insurance Company on December 31, 1870. At the time the policies were written the family of the insured consisted of the following named persons: His wife, Elvina A. Lane; a son, Richard H. Lane; a daughter, Malvina A. De Mets. The wife died April 18, 1886. The son died July 1, 1886, leaving a widow and two children and an after-born child also of Richard H. Lane, who survived the insured. The son did not die intestate, but left a last will and testament, whereof the plaintiff is sole executrix. The insured died July 1, 1889, leaving him surviving, as heirs at law and next of kin, a daughter, Malvina A. de Mets, defendant in this action, and three grandchildren, the issue of Richard H. Lane, the son of the insured. All the material facts set forth in the complaint are substantially admitted by the answer, and the only question for the court to determine is whether or not the view of the apportionment of the moneys payable under the policies entertained by the insurance company be correct in law. The insurance company, upon the proofs of death, determined and stood ready to pay the amount due upon the two policies in equal proportions to the daughter, Mrs. De Mets, and to the executrix of the last will and testament of the son. The words of contract embodied in the policies and submitted to the court for equitable construction are as follows: “And the said company doth hereby promise and agree to pay the amount of said insurance, at its office in the city of New York, to the assured under this policy, to-wit, Elvina A., wife of Maltby G. Lane, for her sole use, if living, in conformity with the statute, and, if not living, to the children of said person whose life is hereby insured, or their guardian for their use, or, if there be no such children surviving, then to the executors, administrators, or assigns of said person whose life is hereby insured, in sixty days after due notice and satisfactory proof of the death during the continuance of this policy of the said person whose life is hereby insured as above, deducting therefrom all indebtedness to the company.” The court below adjudged that plaintiff was entitled to one-half the amount due under the policy, and defendant Malvina A. De Mets now appeals. For former report, see 9 H. Y. Supp. 52.
    
      Argued before Van Brunt, P. J., and Brady and Daniels, JJ. '
    
      Billings & Cardozo, for appellant. Hastings & Gleason, for respondent.
   Brady, J.

It is claimed that the appellant, Malvina A. De Mets, having survived her father, Maltby G. Lane, as well as her mother, became entitled at his death to the whole of the moneys under the policies in question. It is not doubted that Elvina A., the wife of the insured and mother of the defendant, did not take a vested interest in these moneys, her right to them depending upon the contingency of her survival of her husband. It is apparent from the provision in the policies that such money was to be paid to her if living, which meant living at the time of the death of the insured, at which time the policies matured, and not before. According to the terms of the policies, if the wife of the insured was not living at the time of his death, the amount of the insurance was to be paid to the children of the insured, or their guardian for their use • and, if there were no such children surviving, then it was to be paid to the executors, administrators, or assigns of the insured, i. e., to the executors, administrators, or assigns of Maltby G. Lane. From this phraseology the conclusion seems to be inevitable that the children of the insured had not, nor had either of them, a vested interest during the life of the insured, it being expressly provided by the policies that if there should not be any surviving children of his the insurance money should go to his executors, administrators, or assigns. It was a provision that was exclusively for the children of the insured who should survive him, and not for his grandchildren, —a result conclusively indicated by the declaration that in case there were no surviving children it should be paid to the representatives of his estate or assigns, and the absence of any provision for the payment of it or of any part of it to the personal representatives of a deceased child. It is contended on the part of the appellant that by the well-settled principles of construction in analogous cases these insurance moneys, if they become payable to the children of the insured, would be payable to them as a class, and those of the class would take it who were in being when the policies became payable. This proposition would necessarily include after-born children of the insured of his second wife, if there had been any, as participants of the fund. In a case in which a legacy of £2,000 in equal shares was given to the children of a deceased sister of the testator, of whom there were three at the date of the will, but one of whom had died in his life-time, it was held that the two survivors were entitled to the whole sum. Viner v. Francis, 2 Brown Oh. marg. p. 658. See, also, Doe v. Sheffield, 13 East, 526. This rule is recognized and approved by the court of appeals in U.S. Trust Co. v. Mutual Benefit Life Ins. Co., 115 N. Y. 152, 21 N. E. Rep. 1025, and in Downing v. Marshall, 23 N. Y. 374. Independently, however, of this rule, a proper construction of the language employed in the policy which embraces the subject under consideration removes all doubt that by the words “surviving children” the insured meant “his children only who should survive him.” The construction contended for on behalf of the plaintiff, if the appellant had not survived the insured, would have made the moneys under consideration payable to her personal representatives, and not to those of the insured, as expressly provided for in the policies, in ease there should be none of his children surviving. The adjudications upon which the plaintiffs depend are not applicable to the facts and circumstances of this case. In Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. Rep. 267, the policies were issued in consideration of a sum stated paid by the wife of the insured, and the amount of the policy was to be paid to her or her personal representatives. In one of the policies it was specified “that in case she died before the insured the insurance should vest in the heirs of the insured, ” and in one of the other two policies in ease of such death the insurance was to vest in his children. In U.S. Trust Co. v. Mutual Benefit Life Inst Co., 115 N. Y. 152, 21 N. E. Rep. 1025, the policy was issued on the life óf a husband for the sole use of his wife, in which it agreed to pay to her or her executors, administrators, or assigns, after the death of the husband, the sum insured; and, and in case she should die before him, that then the amount should, after his death, be payable to their children, or to their guardian, if under age. It will have been observed that in neither of these cases, as very justly remarked by the learned counsel for the appellant, is there a contingent limitation to the personal representative of the husband in case there should be no surviving children of his, as in the case in hand, thus showing an absolute intention that the children should enjoy the amount of insurance if they survived father and mother. And it will be perceived upon a perusal of the case in 115 N. Y., 21 N. E. Rep., that the court of appeals expresses the opinion “that upon the death of the wife before her husband the policy was payable to her children as a class, and those of the class would take, and they only, who were in being at the time when the policy became payable; that is to say, the whole policy would be payable to the survivor of the class. It appears, therefore, to be an express authority for the proposition that the appellant, being the surviving child of Maltby G. Lane at the time of his death, was entitled to the whole fund in question. These views are not antagonistic to the decision in the case of Insurance Co. v. Palmer, 42 Conn. 60, in which it appeared that the wife insured the life of her husband for her sole and separate use and benefit, the sum insured, however, to be paid to the wife if living, and, if not, to their children, inasmuch as there was no contingent limitation to the personal representatives of the husband in case there should be no surviving children at the time of his death. The intention of Maltby C. Lane, the insured, seems to have been, briefly stated, as follows: “If my wife survives me, she is to have the whole of the insured sum; if not, my children, if they survive me, shall have it. If they do not, and neither of them survive me, it shall form a part of my estate, to be distributed either as I shall direct by my last will and testament or according to the laws of the state of New York. It is my design to provide for my wife and my children, and none others, through the instrumentality of these policies. ” For these reasons it is thought that the judgment appealed from was erroneous, and should be reversed, and a new trial ordered, with costs to appellant to abide event.

All concur.  