#### United States Trust Company of New York, as General Guardian, etc., Resp’t, *v.*The Mutual Benefit Life Insurance Company, App’lt.

*(Court of Appeals,*

*Filed June 11, 1889.)*

Insurance (Lies)—Construction oe policy.

The defendant, in 1845, issued a policy for $5,000 upon the life of one F., the amount to be paid after his death to his wife, and should she die before him, to their children. The wife died in 1864 before her husband, leaving three children, two of whom, A, and M., died before their father, the former in 1881, leaving three children, and the latter in 1882, intestate and without issue, leaving surviving her husband. The insured died in 1885, leaving one child and three grandchildren, the children of A. _ The defendant paid one-third of the policy to the surviving child, one-third to the administrator of M., and one-ninth to each of the grandchildren. The plaintiff sued, as guardian of two of the grandchildren, to recover their share of the one-third claimed to have been wrongfully paid to the administrator of M. *Held,*that when the wife died before her husband, the only persons interested in the policy were her children then living, and the whole policy, as a chose in action, belonged to them; that on the death of M., her interest in the policy passed to her administrator, and upon the death of the assured, one-third of the policy was payable to the surviving child, one-third to the administrator of M., and one-third to the administrator of A.

Appeal from the judgment of the supreme court, general term, first department.

The plaintiff alleges in the complaint, its proper incorporation under an act of the legislature of this state; that the defendant is a corporation created under the laws of New Jersey; that on the 14th day of May, 1845, the defendant issued a policy of insurance on the life of Archibald T. Finn, in the amount of $5,000, for the sole use of his wife, Jane E. L. Finn, in which it agreed to pay to her, her executors, administrators or assigns, after the death of Archibald T. Finn, the sum insured, and in case she should die before him, that then the amount should, after his death, be payable to tlieir children, or to their guardian, if under age; that Mrs. Finn died in 1864, leaving her surviving her husband and three children, namely, Katherine A. Anthon, wife of George 0. Anthon, Myraette Miles, wife of Charles A. Miles, and Caroline C. Finn; that Katherine A. Anthon died in 1881, leaving three children b er surviving, her only issue, namely, Christeane, Archibald F. and George C. Anthon; that Myraette Miles died in 1882, intestate, and with*2out issue, leaving her surviving her husband; that letters of administration upon the estate of Mrs. Miles, were thereafter issued by the surrogate of the city and county of New York; that in March, 1885, Archibald T. Finn died, leaving him surviving his daughter, Caroline C. Finn, and his grandchildren Christeane, Archibald F: and George C. Anthon,. his only issue; that thereafter on the 6th day of November, 1885, the defendant paid one-third of the amount due on the policy, to Caroline C. Finn, one-third to Charles A. Miles, as administrator of his wife, one-ninth to Caroline C. Finn, as guardian of Christeane Anthon, and two-ninths to Edward Anthon, as guardian of Archibald F. and George Christian Anthon: that plaintiff has been appointed guardian of the estates of Archibald F. and George Christian Anthon; that there is due and owing from the defendant to the plaintiff, as such guardian, one-ninth of the whole amount insured by the policy, in addition to two-ninths thereof already paid to the two children of Katherine A. Anthon, deceased, such one-ninth being equal to one-third of the amount wrongfully paid to Charles A. Miles, as administrator of his wife’s estate; that the sum so due and owing to the plaintiff from the defendant, is $555.50, with interest' from June 7, 1885; and plaintiff demands judgment for that sum.

To this complaint the defendant demurred upon the following grounds:

*First.*That it appears upon the face of the said complaint, that the plaintiff has not legal capacity to sue.

*Second.*That it appears upon the face of the said complaint that there is a defect of parties plaintiff in the omission of the administrator or other personal representative of Katharine Anthon, deceased.

*Third.*That the said complaint does not state facts sufficient to constitute a cause of action. The demurrer was-overruled at the special term, and the judgment of the-special term was affirmed at the general term, and the defendant has appealed to this court.

*G. G. Frelinghuysen,*for app’lt; *Edward W. Sheldon,,*for resp’t.

Earl, J.

The policy was issued in this state, and was a. valid policy under chapter 80 of the Laws of 1840, and the sole matter for our determination is the construction and effect to be given to the language contained in the policy. The court below held that no portion of the policy was payable to the administrator of Mrs. Miles, but that one-half thereof was payable to Caroline C. Finn, the surviving daughter' of Mr. and Mrs. Finn, and the other half to-the three grandchildren.

We find no language in the policy insuring any one but Mrs. Finn, and the children of Mr. and Mrs. Finn. If Mrs. Finn survived her husband, the sum mentioned in the-*3policy was payable to her. When she died before her husband, the only persons interested in the policy were her •children then living, and the whole policy as a chose in action belonged to them. They held vested interests therein, as they could in any other chose in action payable at a future time. *Olmsted*v. *Keyes,*85 N. Y., 593; *Whitehead*v. *N. Y. Life Ins. Co.,*102 id., 143; 1 N. Y. State Rep., 344.

It is true that it was the purpose of the act of 1840, tc •enable a husband to make a provision for his family, but how that provision should be made was to be determined by the parties to the policy. The insurance could be for the benefit of the wife alone in which case the amount insured would, upon the death of the husband, be payable to her if she survived, but if she died before him, it would then vest in and be payable to her personal representatives, and not to her children. So too the insurance could be made payable to a child, in which case upon the death of the father, it would be payable to the personal representative of the child. Here grandchildren are not named, and their names cannot be read into the policy. In the event that has happened, the policy must be construed, and is payable precisely as if the children alone had been named therein.

Therefore, when Mrs. Miles died, her interest in the policy passed to her administrator as her personal representative, and as part of her personal estate, and upon the •death of Mr. Finn, one-third of the policy was payable to the surviving child, one-third to the administrator of Mrs. Miles, and one-third to the administrator of Mrs. Anthon. "The children of Mrs. Anthon, as such, could have no standing to maintain an action to recover any sum due upon the policy. But even if they could, their full share has already been paid to them.

If, however, we assume that we are wrong in this construction of the policy, then upon the death of Mrs. Finn the policy was payable to her children as a class, and those of the class would take who were in being at the time when the policy became payable, and in no event could grandchildren be included in the class. In that case the whole policy would be payable to the only survivor of the class, to wit: Caroline C. Finn.

We are, therefore, of opinion that the judgments of the Seneral and special terms should be reversed, and that the efendant should have judgment upon the demurrer, with costs.

All concur.