Brick v. Campbell

• Decision Date: 14 October 1890
• Citation: 122 N.Y. 337,25 N.E. 493
• Parties: BRICK v. CAMPBELL.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 337

25 N.E. 493

BRICK

v.CAMPBELL.

Court of Appeals of New York,

Second Division.

Oct. 14, 1890.

Appeal from superior court of New York city, general term.

A judgment of the special term dismissing the complaint, with costs, was affirmed, and plaintiff appeals.

Jacob F. Miller, for appellant.

George W. Van Slyck, for respondent.

POTTER, J.

The action was brought by the plaintiff, the wife of R. A. Brick, still living when the action was brought, and was tried to compel the reassignment to her of five policies of insurance issued upon the life of her husband for her benefit, and which had been assigned by her (her husband joining in the instrument of assignment) to the defendant for the purpose of securing and paying liabilities of the plaintiff's husband to the defendant. The grounds for such reassignment as set forth in the complaint are that the liabilities had been satisfied, and that the plaintiff had no right or power to transfer said policies. The findings of the trial court that all the liabilities had not been satisfied, upon the evidence introduced upon that subject, disposes of that ground of relief, and leaves for our consideration upon this appeal the single question, whether the plaintiff was at the time of the commencement of the action entitled to a reassignment of the policies upon the ground that she was not bound or concluded by the assignments for want of power to assign the policies. That question, together with the obligation of covenants of plaintiff in and accompanying the instruments of assignment to the effect that the assignments are valid and sufficient, and, further, that, whenever required, the plaintiff would, in order to carry out the design of the assignment, do any other act necessary for that purpose, is presented upon this appeal. The policies in question are set forth in the complaint. They were issued in July and August in the year 1872, and were assigned to the defendant on or about the 1st of June, 1877. Prior to that time, and until January, 1882, the plaintiff and her husband had a son living. While there were some differences in the terms of the policies in respect to payment of the sums insured, and some of them were for the life of the husband of the plaintiff, or for a specified period of life, they all provided (save one, which was clearly a clerical error of the draughtsman, and not affecting the character of the insurance) that the sum insured should be paid to the plaintiff, if living, and were policies which have been held by the decisions of the court, in respect to various persons to whom the sum insured is made payable, in case of the death of the principal beneficiary before the death of the party whose life is insured, to be policies for the benefit of the wife and her children. The power of a married woman to insure the life of her husband for her or her children's benefit was conferred by the act of 1840, c. 80. It simply enabled her to effect such insurance, and nothing further. It did not enable her to assign the policy of insurance, and, beyond procuring the policy, she was still as incapable of doing anything in respect to the policy as before that act. This court, in Eadie v. Slimmon, 26 N. Y. 1-17, so construed the act of 1840, and held ‘a policy of insurance to a married woman made under that act * * * cannot be transferred so as to divest the interest of the wife or her children.’ This holding has been steadfastly adhered to by this court in numerous decisions, and, as conceded by the respondent's counsel, until the act of 1873, c. 821. The latter act enabled a married woman, in case she has no child or children or any issue of any child or children, by the observance of prescribed forms and acknowledgments, to dispose of such policy of insurance with the same effect as she could have done after the death of the person on whose life the policy was issued. This act simply enabled a married woman to assign the policy in a case where she had no child, but in this case the plaintiff had a son living when the act of 1873 was passed, and in 1877, when she executed the assignments of these policies and covenants; and the son lived until January 16, 1882. The principle of all the decisions (and they are numerous) has been clear and uniform that a married woman was incapable of assigning a policy of insurance issued upon the life of her husband for her benefit only in those cases, and to the precise extent, which the acts of the legislature have expressly enabled her to assign; and the courts have rigidly adhered to this doctrine from the case of Eadie v. Slimmon, supra, and have in no instance departed from it except as expressly authorized or required by the acts of the legislature in relation to such policies. So strictly have the courts adhered to the enabling acts passed by the legislature upon the subject of such policies that they have refused to regard the general enabling acts in relation to married women and their separate property as having any reference or applicability to such policies. And, in order to give the fullest protection to married women under such policies, the courts have held ‘that the act of 1840, in respect to insurances for lives for the benefit of married women, as amended by the several acts of the legislature upon that subject, including the act of 1873, c. 821, is not affected by the legislation enlarging the legal status of married women, but is still operative; and a policy issued under that act for the benefit of a wife, or, in case of her death before her husband, of her children, is not assignable by her during the life-time of her husband.’ CHURCH, C. J., and ALLEN and ANDREWS, JJ., in Barry v. Assurance Soc., 59 N. Y. 587. ‘To bring an insurance by a wife upon the life of her husband within the provision of the act of 1840, c. 80, it is not essential that it should appear either by the terms of the policy or by extrinsic evidence that it was the intention of the assured to avail himself of the provisions of that act. The intention is to be presumed from the beneficial nature of the policy. The omission to provide in the policy for the disposition of the fund in case of the death of the wife before that of her husband, or a statement in the application that the insurance is for the benefit of the wife solely, does not rebut the presumption that in taking the policy the wife had in view said act. An endowment policy is within said act of 1840 as amended in 1866, c. 656. And accordingly it was held that an endowment policy issued in 1868 to plaintiff upon the life of her husband, payable to her, her personal representatives or assigns, was, in the absence of evidence showing a contrary intent, to be presumed to have been procured under the act; and that it was non-assignable save in cases where assignments are authorized by the act of 1873, and the act of 1879.’ Brummer v. Cohn, 86 N. Y. 11. To the same effect are the subsequent reported cases, and down to the time of the passage of the later and more general enabling act passed in 1879, c. 248. Frank v. Insurance Co., 102 N. Y. 266, 6 N. E. Rep. 667; Anderson v. Goldsmidt, 103 N. Y. 618, 9 N. E. Rep. 495. It seems to me, therefore, that the plaintiff was not capable of assigning the policies in question until the enabling act of 1879, c. 248.

The only question, therefore, requiring examination is whether by virtue of the covenants and conduct of plaintiff she is precluded from disputing or annulling the assignments. It is pretty clear that the courts have steadfastly held to the non-assignability of insurance policies, notwithstanding the various acts conferring upon married women power over their own separate property, and the various acts of the legislature in certain circumstances conferring power upon them to dispose of policies of insurance procured by their or their husbands' means. The protection of widows...