Opinion
No. 38/81.
08-11-1916
CONNECTICUT MUT. LIFE INS. CO. v. FIELDS et al.
Griggs & Harding, of Paterson, for complainant. Vredenburgh, Wall & Carey, of Jersey City, for defendants Cocks, Butts, and John J. Fields. King & Vogt, of Morristown, for defendant Adrianna S. Fields.
Bill of interpleader by the Connecticut Mutual Life Insurance Company against Adrianna S. Fields, executrix, etc., of the estate of John J, Fields, and others. Decree directing the payment of the fund to the defendant Adrianna S. Fields, as executrix.
Griggs & Harding, of Paterson, for complainant. Vredenburgh, Wall & Carey, of Jersey City, for defendants Cocks, Butts, and John J. Fields. King & Vogt, of Morristown, for defendant Adrianna S. Fields.
FOSTER, V. C. This is a bill of interpleader filed to have determined to whom the amount of an insurance policy for $5,000, issued by complainant on the life of John J. Fields, should be paid. Decree was entered in favor of complainant on February 20, 1916, and the fund was directed to be paid into court. The facts established on the hearing are that on May 28, 1806, the Connecticut Mutual Life Insurance Company issued to John J. Fields a policy of life insurance for $5,000, payable to his estate, in consideration of an annual premium of $192, which was regularly paid up to and including the year 1910. Mr. Fields died on March 27, 1910. After his death the policy of insurance was found in the safe in his home at Schooley's Mountain, in this state, and to it there was attached by a pin, a paper which read as follows:
"W. S. Dunham.
Geo. Sherman.
"Connecticut Mutual Life Insurance Co.
"Assets, $35,000.00.
"Dunham & Sherman, General Agents.
"194 Broadway, New York, Sept. 4, 1874.
"In consideration of one dollar to me in hand paid the receipt whereof is hereby acknowledged I hereby assign, transfer and make over unto my wife Ann Fields the policy of insurance issued by the Connecticut Mutual Life Insurance Company on my life May 28th, 1866, and numbered 57366.
"Witness:
J. J. Fields.
"Geo. Sherman."
The Ann Fields mentioned in this paper was the first wife of John J. Fields, and the defendant Adrianna S. Fields was his second wife, and is the executrix of his last will and testament. Ann Fields died November 11, 1902, intestate, at her home in Brooklyn, N. Y., where Mr. Fields was living when the policy was issued in 1866, and where he continued to reside for a number of years thereafter. She was survived by her husband and three children, Charlotte A. Cocks, Estelle Butts, and John J. Fields, parties defendants and claimants to the fund, by virtue of the abovementioned paper, which they claim assigned the policy to their mother. The defendant Adrianna S. Fields claims the fund as executrix of Mr. Fields' will and as part of his estate. In 1874 Mr. Fields was in financial difficulties and he surrendered all his life insurance policies, except the one in question, and at this time Mrs. Cocks heard him tell her mother, speaking of this policy:
"Mother, I leave you this; I will hold up this life insurance for you and the children; it is about all that will be left to take care of you if the crisis comes."
And later he told her:
"You will have something left when I am gone," and "Mother, I have kept the life insurance for you and the children; I am afraid that will be all that will be left for you."
There was no evidence of the actual delivery of the policy, or of the paper purporting to assign it, to Mrs. Ann Fields, or to any one for her.
It was stipulated at the hearing that George Sherman, whose name appears as subscribing witness to the signature of John J. Fields on the abovementioned paper, was the general agent of the complainant at the time, and that he died on May 1, 1877.
And it was further agreed that the policy, by its terms, did not require that the insurance company should be advised of any assignment of it. And it does not appear that the company was advised of this attempted assignment.
Counsel for all parties agree that as all the transactions relating to the issuance of the policy, and the attempted assignment and gift of it, took place in New York, the validity of the assignment and gift is governed by the law of that state.
On behalf of the claimants, Charlotte A. Cocks, Estelle Butts, and John J. Fields, it is contended that the paper signed by Mr. Fields in the presence of Mr. Sherman, on September 4, 1874, is a valid assignment of the policy, and that the proceeds thereof are therefore payable to them as the next of kin and representatives of their mother, Mrs. Ann Fields, the assignee of the policy. The argument supporting this contention is that, although it was not necessary to notify the company of the intended assignment, Mr. Fields took the precaution to bring the general agents of the company into the transaction, by writing the assignment on one of their letter heads, and by having Mr. Sherman, one of the general agents, witness his signature thereto. From this it is assumed the company had notice of the assignment, and that such notice constituted a constructive delivery of the policy and assignment, and made the gift thereof complete. The answer to this is that there is nothing in the record to show that Mr. Sherman had the slightest knowledge of the contents of the paper to which he put his name as a subscribing witness; and, if it be assumed that he had such knowledge, there is nothing to show that his agency was of such nature that knowledge to him as agent would import such knowledge to his principal, the insurance company.
It is conceded by counsel for all the parties that delivery is a necessary requisite of a valid gift inter vivos, and that such delivery may be actual or constructive; and, as it is admitted that no actual delivery wasmade in this case, the three children of Mrs. Ann Fields must establish a constructive delivery of the policy and assignment as the basis for their claims to this fund.
In support of their contention, counsel for these claimants has referred me to the following New York cases: Hurlbut v. Hurlbut, 49 Hun (N. Y.) 189, 1 N. Y. Supp. 854, which holds that where the owner of a life insurance policy formally assigned all his interest therein to his daughter, at the office of the company's agent, and the assignment was forwarded to the company, and the policy holder notified his daughter of the assignment and that he had attached it to the policy, the interest in the policy vested in the daughter, and she could recover from the company on the death of her father, though the policy and assignment had not been delivered to her. In this case the court further held:
"It is not necessary that the delivery of the thing intended to be given should be made directly to the person intended to receive or be invested with the gift, but it may be made to another person for him, when that is done so as to divest the possession and title of the donor. Young v. Young, 80 N. Y. 422, 430 . And what took place concerning this insurance seems to have been attended with that effect. Hutchings v. Miner, 46 N. Y. 456 ."
The case of McDonough v. Ætna Life Insurance Co., 38 Misc. Rep. 625, 78 N. Y. Supp. 217, holds that where an assignment of a life insurance policy is filed with the company, it is not necessary for the assignment to be delivered to the assignee; and it is claimed that under the doctrine of this case, the lodging of the assignment with the company amounts to a constructive delivery to the assignee, or, in the language of the court:
"If that was the only delivery [the filing of the assignment with the company] it would be a good delivery, being for the benefit of the assignee."
My attention has also been directed to cases in Maryland, Illinois, and in other states, and in the federal courts, to the same effect.
All of these cases, and the cases of Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531; Olmsted v. Keyes, 85 N. Y. 593; St. John v. Ins. Co., 13 N. Y. 31, 64 Am. Dec. 529; In re Parsons' Estate, 51 Misc. Rep. 370, 101 N. Y. Supp. 430; Young v. Young, 80 N. Y. 422, 36 Am. Rep. 634; In re Crawford, 113 N. Y. 560, 21 N. E. 692, 5 L. R. A. 71; Huestis v. Prudential Life Ins. Co., 127 App. Div. 903, 111 N. Y. Supp. 461; and others to which my attention has been directed by counsel for the executrix—not only recognize delivery as an essential element of a valid gift inter vivos, but hold that the delivery of the gift, whether actual or constructive, must be such as to divest the possession and title of the donor beyond his power to recall, and to vest the donee with the control and dominion over the subject-matter of the gift. No such delivery has been established in this case. The company was never notified of the attempted assignment of the policy to Mrs. Ann Fields. Neither the policy nor the assignment was delivered to her, or to any one for her. Mr. Fields retained possession of the policy and of the assignment, and retained control over the policy and its proceeds. He paid the premium annually, and it was always within his power to cause the policy to lapse by the nonpayment of the premium, or by the violation of some of its provisions. Whatever his intentions may have been, he never divested himself of the possession and title to the policy beyond his power to recall; and, in consequence, he never completed the gift of the policy to his wife. It follows, therefore, that as the policy was not effectually assigned, the amount of it should be paid, according to its terms, to his estate.
A decree will be advised, directing the payment of the fund to the defendant Adrianna S. Fields, as executrix of the estate of John J. Fields, deceased.