Foley v. Mut. Life Ins. Co. of New York

• Decision Date: 06 June 1893
• Citation: 138 N.Y. 333,34 N.E. 211
• Parties: FOLEY et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 333

34 N.E. 211

FOLEY et al.

v.MUTUAL LIFE INS. CO. OF NEW YORK.

Court of Appeals of New York.

June 6, 1893.

Appeal from supreme court, general term, first department.

Action by John Foley, Jr., and others, against the Mutual Life Insurance Company of New York, to have the surrender of a life insurance policy adjudged void. From a judgment of the general term (18 N. Y. Supp. 615) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

The other facts fully appear in the following statement by EARL, J.:

On the 30th day of January, 1876, the defendant issued to John Fcley an endowment policy, whereby, in consideration of certain annual payments to be made, it promised to pay him the sum of $10,000 on the 3d day of January, 1891, or, if he should die before that time, then to make payment of that sum to his executors administrators, or assigns, within 60 days after notice and proof of his death. On the 25th day of July, 1879, he assigned the policy to his wife and eight children. In November, 1879, his wife died, and afterwards one of the children also died. His wife left a will in which she gave all her property, real and personal, to her children, and nominated her husband executor of the will, and appointed him guardian of the children during their minority. On the 16th day of April, 1888, the premiums on the policy having been regularly paid, and the policy then being in force, Foley, assuming to act as executor of his wife's will and guardian of the children, surrendered the policy to the defendant, in consideration of the sum of $7,229 paid by it to him, and thereupon it canceled the policy, and has ever since remained in its possession. At the time of such surrender the seven children interested in the policy were all minors. Thereafter the plaintiff John Foley, Jr., and Madeleine Foley became of age, and John Foley, Jr., was appointed guardian of his infant brothers and sisters, and in January, 1890, the plaintiffs tendered to the defendant all the premiums on the policy which became due after its surrender, and demanded that it should be reinstated. The defendant refused to accept the money so tendered and to reinstate the policy, and then this action was commenced by the plaintiffs, and they prayed judgment that the surrender of the plaintiff's interest in the policy be set aside and adjudged void, and that the policy be declared to be in full force, and a subsisting policy of insurance in their favor. The defendant answered the complaint, and the action was brought to trial at a special term of the supreme court, and the court adjudged that the surrender of the policy was illegal and void, and, the policy having then by its terms matured, it ordered judgment in favor of the plaintiffs for seven-ninths of the $10,000, less seven-ninths of the premiums remaining unpaid thereon. From the judgment entered at the special term the defendant appealed to the general term, and, from affirmance there, to this court.

A guardian in socage has control of the personal estate of his ward. Torry v. Black, 58 N. Y. 187;Porter v. Bleiler, 17 Barb. 151; Co. Litt. (1st Amer. Ed., Butler & H. Notes,) 88, B; Chamb. Inf. (London Ed., 1842,) pp. 65, 425, 511, 515; 2 Kent, Comm. 224; Macph. Inf. pp. 71, 77; Bing. Inf. (1st Amer. Ed., 1824,) p. 163; Jackson v. Vredenbergh, 1 Johns. 164;Byrne v. Van Hoesen, 5 Johns. 67;Emerson v. Spicer, 46 N. Y. 598;Fonda v. Van Horne, 15 Wend. 631;Beecher v. Crouse, 19 Wend. 306; Whitlock v. Whitlock, 1 Dem. Sur. 161.

A guardian in socage has no control of the personal estate of his ward. Bedell v. Constable, Vaughan, 186; Thomas v. Bennett, 56 Barb. 197; Schouler, Dom. Rel. (4th Ed.) § 286; Emerson v. Spicer, 46 N. Y. 594;Holmes v. Seely, 17 Wend. 75;Thomas v. Bennett, 56 Barb. 197;Segelken v. Meyer, 94 N. Y. 473.

Davies, Short & Townsend,(Edward Lyman Short and Julien T. Davies, of counsel,) for appellant.

Wilcox, Adams & Green,(Herbert Green, of counsel,) for respondent.

EARL, J., (after stating the facts.)

Mrs. Foley had no power by her will to constitute her husband guardian of her minor children, and, while he assumed to act as such, it is now conceded that he was not their testamentary guardian, and that he derived no power under the will of his wife to act as such. But they took under the will of their mother real estate, and hence it is claimed on behalf of the defendant that he became the guardian in socage for his minor children, under the provisions of the Revised Statutes, where it is provided, in section 5, (4 Rev. St. [8th Ed.] p. 2418,) as follows: ‘Where an estate in lands shall become vested in an infant, the guardianship of such infant, with the rights, powers, and duties of a guardian in socage, shall belong (1) to the father of the infant; (2) if there be no father, to the mother; (3) if there be no father or mother, to the nearest and eldest relative of full age, not being under any legal incapacity, and, as between relatives of the same degree of consanguinity, male shall be preferred.’ Section 6 provides that ‘to every such guardian all statutory provisions that are or shall be in force relative to guardians in socage shall be deemed to apply.’ As a guardian constituted by this statute is clothed with the rights, powers, and duties of a guardian in socage, it becomes important to know what were the powers, duties, and authority of a guardian in socage at common law prior to the Revised Statutes.

Guardianship in socage was an incident of the feudal tenures existing under the English common law of real estate, and existed only where an infant under 14 years of age was seised of real estate. No person could be a guardian in socage who could inherit from the infant, but the right of guardianship was in such of the infant's next of kin as could not take by inheritance from him the socage estate in respect of which the guardianship arose; and, if there was one or more in common degree of relationship, he who first obtained possession of the infant generally had the custody of him. The guardian in socage was recognized as having an estate in the land of his ward, and he could maintain in his own name any appropriate action to recover the rents and profits, and to recover damages for trespass or waste upon the land, and to recover possession of the land itself. As the common-law socage tenure was swept away by the Revised Statutes, the statutory guardianship was constituted by those statutes to take the place of the common-law guardianship in socage, and it may for convenience be called by the same name. The guardianship there constituted was like the guardianship in socage at common law, except that it continued until the infant reached the age of 21 years, and relatives who could inherit from the infant were not excluded. It is claimed by the plaintiffs that Foley, as guardian in socage, under these provisions of the Revised Statutes, had no power to surrender the insurance policy. The defendant, on the contrary, claims that he did have such power, and the counsel on both sides have, with great diligence and industry, examined and brought to our attention numerous authorities which are claimed to bear upon this controverted question. We have carefully examined them all, and are satisfied that, as such guardian, Foley had no power to surrender the policy.

It is claimed on the part of the plaintiffs that guardians in socage at common law had to do only with the real estate of their wards, and we think that is substantially true. Such a guardian could have no being whatever, except when the infant was seised of real estate in socage tenure, and as that was essential, it may be inferred that his powers and duties related to the real estate on account of which his guardianship was constituted. In the early history of the common law there was very little personal property, and the guardianship of the infants and of their real estate was very naturally the main object of the law. It is probable that, as the guardian in socage was entitled to the possession of the real estate, he also took possession of the animals, implements, and other personal property connected with the real estate, and, having possession, he could probably maintain an action for any interference with such personal property without right or authority by a mere stranger, and that he thus had the control of such...