
    (24 Misc. Rep. 324.)
    STERRIT et al. v. LEE et al.
    (Supreme Court, Special Term, New York County.
    May, 1898.)
    Life Insurance—Bights of Beneficiary—Vested -Interest.
    A policy upon the life of assured, payable to his mother, her administrators or assigns, purported to have been paid for by her, and was issued on her application, through the son as agent, which represented that she had an interest in his life to the extent of the policy. She was not dependent on him for support, and he did not contribute to her support. After her death, assured wrote to her administrator for an assignment of the policy, and stated he had taken it out for her benefit, without telling her for many years, and paid the premiums. Assured then changed the beneficiary by will, and afterwards died. Held, that the mother had a vested interest in the policy, and that the assignment by her administrator without consideration was void, and its proceeds belonged to her estate.
    Action by Louis S. Sterrit and another, as executors of the will of David Beveridge, deceased, against Martin L. Lee, as administrator of the estate of Marion Beveridge, deceased, and others. Judgment for defendant administrator.
    Hubert E. Bogers, for plaintiff.
    Gilbert W. Minor (Austin G. Fox, of counsel), for defendant Emerson.
    Black & Kneeland and Bobert V. S. Samuels, for defendant Lee, as administrator, and others.
    John B. Corwin, for defendant Gibbs.
   CHASE, J.

The policy in question was issued by the Manhattan Life Insurance Company on the 17th day of April, 1868, and, among, other things, provides:

“That the Manhattan Life Insurance Company, in consideration of the sum of one hundred and eight dollars and fifty cents to them in hand paid by Mrs. Marion Beveridge, * * * do assure the life of David Beveridge, of New York, * * * in the amount of $5,000, for the term of his natural life, for the sole use of the said Marion Beveridge. And the said company do hereby promise and agree to and with the said assured, her executors, administrators, and assigns, well and truly to pay or cause to be paid the said sum insured to the said assured, her executors, administrators, or assigns, within ninety days after due notice and satisfactory evidence of the death of the said David Beveridge. * * *”

Marion Beveridge was the mother of David Beveridge. The application for the policy is signed, “David Beveridge, in Behalf of Mrs, Marion Beveridge.” In the application, Marion Beveridge states:

“I, Mrs. Marion Beveridge, of Newburgh, county of Orange, state of New York. * * * being desirous of effecting an assurance with the Manhattan Life Insurance Company in the sum of five thousand dollars upon the life of David Beveridge, * * * that I have an interest in his life to the full amount of the said sum of five thousand dollars.”

At the time this policy was issued, Marion Beveridge was about 50 years of age, and David Beveridge was about 28 years of age. Neither at the time the policy was issued, nor at any time subsequent, was Marion Beveridge dependent upon her son David Beveridge for her support and maintenance. Her death occurred on the 12th day of January, 1895, and she left, her surviving, three children, her only next of kin, namely, David Beveridge, Marion B. Lee, and John F. Beveridge. Letters of administration were granted upon her estate to Martin L. Lee, as administrator, in February, 1895. Subsequent to her death, David Beveridge wrote to Mr. Lee, the administrator of the estate of Marion Beveridge, and inclosed an assignment of the policy in question, and requested him to execute the same. This was the first knowledge the administrator had of the existence of the policy. In this letter, which is dated October 3,1896, David Beveridge states:

“About twenty-eight years ago I took out policy No. 24,512 in Manhattan Life Insurance Company, for the benefit of mother in case of my decease. Of course, I paid all the annual premiums, she bearing none of the expense. In. fact, I never told her of the insurance until a few years ago.”

In compliance with this request, the administrator of Marion Beveridge, on the 9th day of October, 1896, executed, in duplicate, an assignment of the policy to David Beveridge. No consideration was paid the administrator for said assignment. David Beveridge died on the 7th da.y of February, 1897, leaving a last will and testament, which, with the codicil thereto, has been duly admitted to probate.' The policy in question, with receipts showing the payment of the several premiums, but not stating from whom received, were found among the papers of David Beveridge, after his decease. The will of David Beveridge was executed on the 7th day of May, 1894, 26 years after the policy was issued; and by his will he bequeathed to his mother, Marion Beveridge, the proceeds of said policy of insurance, but provided that, in case she should not survive him, the proceeds of said policy should be paid to certain charitable institutions. Ori the 29th day of December, 1896, and subsequent to the death of Marion Beveridge, David Beveridge executed a codicil to his will, by which codicil he provides that the proceeds of said policy, together with other moneys bequeathed to his mother, be paid to Frances R. Emerson. The proceeds of said policy, amounting to $4,771.46, have been paid into court by the defendant the Manhattan Life Insurance Company, subject to the determination and direction of this court.

This policy on its face purports to be a contract between the Manhattan Life Insurance Company, of the one part, and Marion Beveridge, of the other part. Marion Beveridge was the assured, and David Beveridge is in no way connected with the contract, except—• First, as the agent of Marion Beveridge in obtaining the insurance for her; and, second, as the person the termination of whose life fixed the time when the amount of the policy should be payable to Marion Beveridge, her executors, administrators, or assigns. Marion Beveridge, being the mother of David Beveridge, had an insurable interest in his life. The application which formed a part of the contract expressly states that Marion Beveridge has an interest in the life of David Beveridge to the full amount of the $5,000. As David Beveridge acted as the agent of his mother, Marion Beveridge, in the transaction, the policy must be deemed to have been delivered to Marion Beveridge, and to have remained in her possession. Taking the policy as it reads, Marion Beveridge had a vested interest in the contract, and the same could not be assigned except by her or by her executors, administrators, or assigns. Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. 267; Garner v. Insurance Co., 110 N. Y. 266, 18 N. E. 130; Ferdon v. Canfield, 104 N. Y. 143, 10 N. E. 146; Cyrenius v. Insurance Co., 145 N. Y. 576, 40 N. E. 225; Olmsted v. Keyes, 85 N. Y. 593; United States Trust Co. of New York v. Mutual Benefit Life Ins. Co., 115 N. Y. 152, 21 N. E. 1025; Griswold v. Sawyer, 125 N. Y. 411, 26 N. E. 464; Geoffroy v. Gilbert, 5 App. Div. 98, 38 N. Y. Supp. 643; Stilwell v. Insurance Co., 72 N. Y. 385.

It is claimed that the intention of David Beveridge should govern, and that» it was the intention of David Beveridge that this policy should be payable to his mother, Marion Beveridge, if living, or, in ease of her death, that it should be subject to his will or further designation of a beneficiary. Assuming that his intention should govern, we find that the contract itself expressly provides for the payment of the amount to Marion Beveridge, her executors, administrators, and assigns. The application states that Marion Beveridge has an interest in the life of David Beveridge to the full amount of the $5,000. Marion Beveridge, at the time of this transaction, resided in Newburgh, in the state of New York, while her son resided in Wisconsin. There is no evidence that he ever contributed to the support of his mother. It is affirmatively shown that she was not dependent upon him for support and maintenance. At the time the policy was issued, the husband of Marion Beveridge was living, and she had a separate estate, which amounted to at least $10,000 at the time of her death, in 1895. After the death of Marion Beveridge, David Beveridge desired to change the beneficiary; but there is nothing in the letter written by him to the administrator of his mother’s estate (assuming that the same was properly received in evidence) to show that he had any intention, at the time the policy was given, to restrict the unqualified statement that on his death the amount should be payable to his mother, the assured, her executors, administrators, or assigns. The letter simply states that he took out a policy for the benefit of his mother in case of his decease, and does not in any way refer to his intention at that time. In his letter he assumes that the policy belonged to himself, and asks for and procures the assignment. He in no way suggests that the policy is not in the form intended by him at the time he took it, as the agent of his mother. The estate of Marion Beveridge having a vested interest in the proceeds of the policy, the administrator of the estate had no authority to transfer the same except for a valuable and sufficient consideration. The statement in the application that Marion Beveridge had an interest in the life of David to the full amount of $5,000 is not directly or indirectly controverted. She may have advanced to her son an amount equal to or in excess of this policy, and thus had an interest in his life apart from the fact of the relationship existing between them. There is nothing in the surrounding circumstances, as shown in the case of Bickerton v. Jacques, 28 Hun, 119, by which it can be inferred that the sole and only reason which actuated the son in taking out the policy was to provide for the support and maintenance of his mother in case of his death. The evidence herein does not justify a finding that the intention of David Beveridge in taking out the policy in the name of his mother was other than as the same is clearly and expressly stated in the policy itself.

The amount deposited by the Manhattan Life Insurance Company under the order herein should be paid to the administrator of Marion Beveridge, deceased, and a decision and judgment may be prepared accordingly, with costs against the plaintiffs, and in favor of the defendant Martin L. Lee, as administrator of the estate of David Beveridge, deceased.  