#### Louis S. Sterrit et al., as Executors, etc., of David Beveridge, Deceased, Plaintiffs, *v.*Martin L. Lee, as Administrator, etc., of Marion Beveridge, Deceased, et al., Defendants.

(Supreme Court, New York Special Term,

July, 1898.)

Life insurance — Voluntary assignment of a policy by the administrator of the beneficiary — Payment of premiums and retention of the policy by the insured as agent of the beneficiary.

In 1868 David Beveridge, the son of Marion Beveridge,' who was in no manner dependent upon him for support, procured, upon an application signed' “ David Beveridge in behalf of . Mrs. Marion Beveridge ” and in which it was stated that Marion had an interest *325in the life of David to the extent of $5,000, an insurance policy on his life in that sum, made payable to her or her representatives upon the death of David, and for a premium recited as paid by her. David kept possession of the policy, paid all the premiums and on her death in 1895 he, by letter, induced her administrator to assign ' the policy to him, without consideration, his letter stating that he took out the policy “ for the benefit of my mother' in case of my decease.”

Before his death in 1897 he devised the proceeds of the policy to a third person. The insurance company paid the proceeds into, court.

Held, that Marion Beveridge took a vested interest in the policy; that David Beveridge must be deemed to have acted as her agent in the matter; that the intérest of her estate in the policy could not be divested by the voluntary conveyance made by her administrator, to David Beveridge, and that the insurance company must pay the fund to the administrator.

This is an action to recover the amount of a certain'policy of life insurance issued'by the Manhattan Life Insurance Company.

Hubert E. Rogers, for plaintiff.

Gilbert W. Minor (Austin G. Fox, of counsel), for defendant Emerson.

Black & Kneeland, and Robert V. S. Samuels, for defendant Lee, as administrator, and others.

John H. Corwin, for defendant Gibb.

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 Hew' 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, *326her 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 fifty years of age and David Beveridge was about twenty-eight years of age. Neither at the time the policy was issued nor at any time subsequent was Marion Beveridgé 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 E. 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.. 24,5-12 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 oh the 7th day 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 *327Ms decease. The will of David Beveridge was executed on the 7th day of May, 1894, twenty-six years after the policy was issued and by his will he bequeathed to Ms 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. On 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. Enierson. The proceeds of said policy, amounting to $4,771.46, has 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, administrator's 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 Ms 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. TaMng 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. N. Y. Life Ins. Co., 102 N. Y. 143; Garner v. Germania Life Ins. Co., 110 id. 266; Ferdon v. Canfield, 104 id. 143; Cyrenius v. M. L. Ins. Co., 145 id. 576; Olmsted v. Keyes, 85 id. 593; U. S. Trust Co. v. Mutual Benefit Life Ins. Co., 115 id. 152; Griswold v. Sawyer, 125 id. 411; Geoffroy v. Gilbert, 5 App. Div. 98; Stilwell v. Mutual Life Ins. 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 *328in case 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 toi the full' amoiint 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 toas 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 iio 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 Huri, 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 *329case of Ms death. The evidence herein does not justify a finding that the intention of David Beveridge in taMng 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 he paid to the admimstrator 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 admimstrator of the estate of David Beveridge, deceased.

Ordered accordingly.