
    Jacob F. Miller, Ex’r, Pl’ff, v. Robert Campbell, Def't.
    
    
      (Court of Appeals,
    
    
      Filed December 19, 1893.)
    
    1. Insurance (life)—Married women.
    An assignment by a married woman, who had a child living, of a policy in favor of herself and children, made prior to the enabling statute of 1879, is void.
    2. Same—Endowment policy.
    An assignment of an endowment policy made by husband and wife prior to 1879, will not be set aside at the suit of the wife where the husband survived the specified period, as in such event the interest of the wife ceases, and the right of the assignee under the assignment from the husband becomes perfect.
    Appeal by both parties from judgment of the New York superior court, general term, modifying judgment entered upon, findings and conclusions made by judge at special term.
    
      Jacob F. Miller, for pl’ff; George W. VanSlyck, for def't.
    
      
      Affirming 51 St. Rep., 596.
    
   Gray, J.

This action was originally brought by Hannah, wife of Eilev A. Brick, to set aside certain assignments of life insurance policies made to the defendant, and to compel their re-delivery by him to her. Pending the action she died, and her executor has continued it. The policies were five in number, and were all issued in 1872, upon the life of Mr. Brick. Four of them were issued by New York corporations, and one by a Massachusetts corporation. The assignments were made in 1877, and were intended to secure an indebtedness of Mr. Brick, the husband, to the defendant At the time of their making there was one child living; who died in the year 1882. A judgment rendered for the defendant upon a previous trial was appealed from, and being reviewed in the second division of this court, was there reversed. Brick v. Campbell, 122 N. Y., 337; 33 St. Rep., 520. A new trial was ordered, but previous thereto, the defendant conformed, in part, to the decision in the court of appeals, and delivered up three of his insurance policies. Of the two policies remaining, one was issued by the New England Mutual Life Insurance Company, of Massachusetts, and the other was issued by the New York Life Insurance Company, of New York With respect to the former, the conditions are unchanged from what they were when the case was before the second division .of this court; but the defendant insists that the question of a married woman’s capacity under Massachusetts laws was considered under an erroneous assumption as to what those laws were, and that the proofs do not warrant a decision that she was incapable of disposing of a policy for her benefit. That policy, unquestionably, was a Massachusetts contract; but that fact does not influence the consideration of the validity of the agreement by Mrs. Brick to assign it. As between the Massachusetts corporation and the assured, the contract would be governed bv the laws of that state; for it was made and was to be performed there.

Bat the contract which is in question here, is the agreement by the married woman to assign the policy, and its validity depends upon her capacity under New York laws to make it. Her status as a married woman was regulated by statute, and the disabilities under which she was at common law have disappeared in this state, only as they have been by successive legislative enactments specifically removed. Chapter 80 of the Laws of 1840 was an enabling act with respect to the married woman, which permitted her to insure, or to cause to be insured, the husband’s life for her, or her children’s benefit. It did nothing more towards enlarging her legal capacity with respect to such insurances; as it was held upon the previous decision in this court, following along line of cases, commencing with that of Eadie v. Slimmon, 26 N. Y., 9. Chapter 821 of the Laws of 1873 conferred capacity upon her to dispose of a policy, provided there was no child, nor issue, living, and finally,'in 1879, chapter 248, Laws of 1879, the legislature removed 1¡he restrictions upon her power to assign.

The terms in which the act of 1840 and its successive amendments were couched, are of general application to all insurances by or for married women upon the lives of their husbands, and are not to be deemed as affecting only insurances effected in this state. It was the policy of the law of this state, until the acts of 1873 and 1879, that the benefit of any such insurance should be beyond the power of the wife to lose by her acts. Hence, without further adding to the discussion of the question had upon the former appeal, it is our opinion that Mrs. Brick had no legal capacity to assign the policy of insurance to the defendant, quite irrespective of what the statutory law of Massachusetts may have been on the subject. The question of her capacity to contract was referable to the enabling laws of this state. I may add, however, this observation, that the law of Massachusetts respecting insurances made payable to married women in force when this policy was issued, as construed by the courts of that state, seems to warrant the inference that such an insurance was regarded as an irrevocable provision for the benefit of the family. Laws of 1864, chap. 197 ; G. S., 1873, chap. 58, § 62; Knickerbocker Life Ins. Co. v. Weitz, 99 Mass., 157 ; Gould v. Emerson, id., 154.

The other of the two policies, issued by the New York Life Insurance Company, was an endowment policy insuring Mr. Brick s life for fifteen years. The agreement of the company was to pay the amount of the insurance to Mrs. Brick, his wife, as the assured, “ for her sole use, if living, * * * and if not living to the children * * * or to the executors, etc., of the person whose life is insured * ^ ; or, if the. person whose life is insuied shall survive said term of fifteen years, * * * the sum above insured shall then be paid * * /* to him.” As the case came before the second division of this court, its decision was based upon the record as it stood. When the previous trial was had, this policy had not matured by its terms; the fifteen years period not having yet expired. After the reversal in this court, and before the last trial came on, a supplemental answer was allowed, which set up the separate assignments by Mrs. Brick and by her„ husband; the husband’s .survival of the policy period of fifteen years, and the consequent cessation of Mrs. Brick’s interest. Upon the trial these allegations were established by the evidence, as was the fact that the insurance company had paid the amount of the insurance moneys to certain persons to whom the policies had been assigned by the defendant, and at a date subsequent to the expiration of the fifteen years period mentioned in the policy. The trial judge, however, ordered judgment for the plaintiff as to this, as well as to the Mew England Insurance Company’s policy ; but at the general term the judgment was modified by striking therefrom so much as adjudged that the title to the Sew York Life Insurance Company’s policy was in Mrs. Brick. It was there held that her interest had ceased under the terms of the policy, and we think the modification of the judgment was correct.

While the fifteen years of the policy were running the policy was non-assignable by Mrs. Bi'ick, and the former decision rendered in this court, was, therefore, perfectly right. Subsequently, however, and before the new trial, an event had happened, by the expiration of the period of fifteen years, which deprived Mrs. Brick of her interest in the policy and vested every interest in her husband, Mr. Brick, to whom, by its express terms, the amount of the insurance had become due. The previous assignment to the defendant, however, had operated to transfer whatever interest he had in the policy, and the title of the defendant to the policy, which before was contingent upon Mr. Brick’s surviving the period of fifteen years, and thus acquiring a transferable interest, became perfect, and carried the right to him.or his assigns to receive payment from the company. It made no difference, in the case of this policy, that it was on what is called the endowment plan. It was equally non-assignable during its running, under the principle declared by the cases as to insurances for the benefit of wife or children. Brummer v. Cohn, 86 N. Y., 11. But, differing from ordinary life insurance, a certain period is fixed'by the contract, or policy, within which the obligation of the insurer runs to the wife, children, or personal representatives, and they had no right to receive payment under it beyond that period. Such an endowment policy combines, in its plan, an insurance of the life and an investment of the moneys paid. In the former feature it looks forward to and makes provision for a state of widowhood or orphanage in the case of the death of the person whose life is insured, pending the period specified, while in the latter feature, it secures to the person effecting the insurance upon his life for a certain period for the benefit of his family, a presumably profit able return of the original investment of his moneys with the company, and thus may be regarded as a provision for an advanced period of his life.

For the reasons given, the judgment appealed from should be affirmed, with costs.

All concur.  