
    Marietta L. Lane, Ex’rx, Resp’t, v. Malvina De Mets, Impl’d,. App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    1. INSUEANCE (LIFE)—BeNEFICIABIES.
    A company promised to pay the amount of an insurance policy to Elvina A., wife of Maltby G. Lane, the insured, for her sole use if living, and if not living to the children of the insured, or if there were “ no such children surviving,” then to the executor, etc., of the insured. Held, that the wife Elvina, having died before the insured, acquired no interest in the moneys.
    2. Same.
    The provision relative to the children was one made for them as a class; was for the benefit of those and of those only who survived the insured, and that they would take all.
    3. Same.
    Grandchildren of the insured, their parent having died before the insured, would not have taken as against his executors.
    Appeal from a judgment rendered at special term.
    This is an appeal from a judgment declaring the respondent as. executrix of Richard H. Lane entitled to one-half of certain insurance moneys. The action was brought 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 Mew York, to the assured under this policy, to wit: Elvina A, wife of Maltby Gr. 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.”
    
      Coles Morris, for app’lt; G. S. Hastings, for resp’t
   Brady, J.

It is claimed that the appellant Malvina A. Dc Mets having survived her father Maltby Gr. 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., a 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 Gr. Lane.

From this phraseology the conclusion seems to be inevitable, that the children of the insured had not or 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 hy 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 analagous cases these insurance moneys if they should 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 lifetime, it was held that the two survivors were entitled to the whole ■ sum. Viner v. Francis, 2 Brown’s Chancery Cases, m. 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. M. B. L. I. Co., 115 N. Y., 158; 24 N. Y. State Rep., 1, and in Downing v. Marshall, 23 N. Y., 374. Independently, however, of this rule a proper construction of the language employed in the clause 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 case there should be none of his children surviving. The adjudications upon which the plaintiff depends are not. applicable to the facts and circumstances of this case. In Whitehead v. N. Y. L. I. Co., 102 N. Y., 143; 1 N. Y. State Rep., 344, 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 case of such death, the insurance was to vest in his children. In the U. S. Trust Co. v. M. B. L. I. Co., 115 N. Y., 152; 24 N. Y. State Rep., 1, the policy was issued on the life of a husband for the sole use of his wife, in which it agreed to ¡aay to her or her executors, administrators or assigns, after the death of the husband, the sum insured, 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 learn'ed 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., 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 Gr. 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 Continental L. Ins. 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 Gr. 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 either 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.

Van Brunt, P. J., and Daniels, J., concur.  