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SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. Judgment affirmed, with costs, on the opinion of CHASE, J., at Special Term.

All concurred.

The following is the opinion of CHASE, J., at Special Term : CHASE, J.:

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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 New York in the amount of Five thousand dollars, 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, her 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.

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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 said sum of five thousand dollars."

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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 Beveridge dependent upon her son David Beveridge for her support and maintenance. Her death occarred 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 F. Beveridge. Letters of administration were granted upon her estate to Martin L. Lee as administrator in February,

SECOND DEPARTMENT, MARCH TERM, 1899.

App. Div.]

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. 24,512 in Manhattan Life Insurance Co. for the benefit of mother in case of my decease- of course I paid all the annual prem's, 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 on 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, was found among the papers of David Beveridge after his 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 his mother, Marion Beveridge, the proceeds of said policy of insurance, but provided that in case she did 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. Emerson. The proceeds of said policy, amounting to $4,771.46, have been paid into court by the defendant, the Manhattan Life Insurance Company, subject to the determination and direction of

this court.

The 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 APP. DIV.-VOL. XXXVIII. 76

SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. 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, administrators 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 his 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. Taking the policy as it reads, Marion Beveridge had a vested interest in the contract, and the same could not be assigned except by her and 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; Olmstead 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; Stillwell v. Mut. 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 in case of her death, 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 to the full amount 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 her of death in 1895. After the death of Marion Beveridge, David Beveridge desired to change the beneficiary, but there is

SECOND DEPARTMENT, MARCH TERM, 1899.

App. Div.]

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 was 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 adininistrator of the estate had no 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 Hun, 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 case of his death. The evidence herein does not justify a finding that the intention of David Beveridge in taking 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 be paid to the administrator 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 administrator of the estate of Marion Beveridge, deceased.

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CRYSTAL WATER COMPANY of Edgewater, Relator, Appellant, v. BIRD S. COLER, as Comptroller of the City of New York, and Others, Respondents.

1

Certiorari - within what time the writ must be applied for review of an assess ment levied in Richmond county.

Chapter 286 of the Laws of 1896, which is a special act relating to assessments for taxation in the county of Richmond, is to be read in connection with chapter 269 of the Laws of 1880, the General Tax Law, in existence at the time of its passage, in contemplation of whose provisions it was passed. Under the former statute, the fifteen days within which a person seeking to review an assessment levied in that county in 1897 must apply for a writ of certiorari, is to be computed from the time that the roll is filed in the office of the board of county assessors, and notice of that fact is posted; and it is not necessary that such roll should be filed in the office of the town or city clerk, as prescribed in section 38 of the General Tax Law (Laws of 1896, chap. 908), in order to limit, under section 251 of that act, the time within which application for the writ of certiorari must be made.

The rule of procedure prescribed by chapter 269 of the Laws of 1880 is, in so far as it is adopted by chapter 286 of the Laws of 1896, continued in force by the latter act, notwithstanding the fact that the act of 1880 was repealed by chapter 908 of the Laws of 1896.

APPEAL by the relator, the Crystal Water Company of Edgewater, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 3d day of January, 1899, vacating and setting aside a writ of certiorari issued to review the action of the defendants in assessing the personal property of the relator for the year 1897.

Edward B. Hill, for the appellant.

William J. Carr, for the respondents.

Order affirmed, with ten dollars costs and disbursements, on the opinion of WARD, J., at Special Term.

All concurred.

The following is the opinion of WARD, J., at Special Term :

FREDERIC A. WARD, J.:

The application for the writ of certiorari herein does not seem to have been made within the time prescribed by law.

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