[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 70 The policy which constitutes the subject of controversy in this action was issued to assure the life of Nicholas Butterly, "until the sixth day of September in the year 1882, or until his decease, in case of his death before that time." In the latter event before the time named, the insurance company promised to pay the amount insured to "Henrietta Butterly, his wife, if living, otherwise to Alice V. Butterly, daughter of the assured." It will be seen that the policy was not alone for the benefit of the husband, but contained two separate and independent provisions. One of these was for his benefit, and conferred upon him absolute authority to receive the amount insured, if he remained alive until the time named and the policy was then in force; and the other for the benefit of the wife, if she survived him, or otherwise of the daughter. In case of the death of the assured, the wife or daughter became thereby vested with the sole right to collect and receive the money mentioned in the policy. The payment of the premium was made and the policy was obtained having these objects in view. The husband alone could collect the policy, if alive at the time of its expiration; otherwise it inured to the benefit of the wife, in case she survived her husband, or of the daughter as provided. The fact that the covenant in the policy was with Butterly, as the assured, and the legal title and interest was in him, if he lived until the time named, does not establish an intention to keep control of the policy, otherwise than as *Page 72 specified, or deprive the wife of the right which she had by virtue of the same. Nor was there any such retention of possession, or failure to deliver the policy by the assured, as indicated a design on his part to assume the absolute ownership of the same. It was delivered to the wife and placed where both herself and her husband had access to it; and even if we may assume there was no actual delivery, this omission is not conclusive, for the reason that the language of the policy was such that the husband might properly retain it in his own possession and for his own benefit as long as he lived, prior to the time of its expiration in 1882. His possession was the possession of the wife; and the general rule that where there is a gift there must be an actual delivery, therefore has no application. The policy itself shows the intention; and no argument is to be derived from a failure to surrender that in which the husband had a present interest before the wife had any absolute right to receive the money. Nor is it a legitimate inference that the provision in the policy for payment to the wife, in case of the husband's death, was only for her benefit, in case he should not dispose of the policy. Such a construction would be at war with the obvious meaning and plain import of the policy, and is not, we think, supported by any of the authorities cited by the appellant's counsel to sustain this position.
It is, we think, well settled that where the husband takes a security, or obtains a policy of insurance, in which the sum named therein is payable to himself and his wife, and she survives him, that the action survives to her, and the form of the security implies a design by the husband to benefit the wife. See Sanford v. Sanford (45 N.Y., 726), and authorities there cited. In the case cited it was said that a delivery was not essential to perfect the gift.
The appellant's counsel claims that like other choses in action for a consideration running between husband and wife, for the benefit of the wife if she survives him, independent of the statutes relating to insurance of the life of the husband for the benefit of married women, the husband *Page 73 could defeat the interest of the wife by a release or assignment. We think that this rule does not apply where a policy of insurance is taken out payable to the wife in case she survives the husband; for in such case there is not only an express contract to pay to the wife upon the contingency mentioned in the policy, but the cotemporaneous acts are usually of such a character as to indicate an intention to hold the same in trust for her benefit. Here it was, in fact, an executed trust, as the declaration of the husband to the company shows, for the benefit of the wife and himself, upon which the company promised to pay. The case at bar is not analogous to that of a bond or promissory note payable to the husband and wife jointly, where the same belongs to the husband, and the wife has no direct interest in it. She has an interest in the life of the husband which is insurable; and hence a promise to pay her is supported by a sufficient and valuable consideration.
The wife of Butterly having a direct interest in the policy in question, it could only be transferred, independent of the statutes relating to insurance upon lives for the benefit of married women, by an assignment duly executed by her. The judge upon the trial found that the instrument bearing date the 13th of October, 1872, executed by her, which purports to be an assignment of Mrs. Butterly's interest in the policy to McCormack, was executed without her knowledge of its purpose or import, and without any consideration and any intention on her part to divest herself of any interest she had in such assurance; and that her signature was procured by the exercise on the part of her husband of undue influence and control, amounting to compulsion. We think that the evidence was sufficient to sustain this finding. The testimony shows that Mrs. Butterly received no consideration for signing the paper, and she swears that if she did sign the instrument, it was done at the request of her husband, and because he asked her and she was afraid to refuse him. The proof also shows that she never read it, and that the subscribing witness to the assignment has a very imperfect *Page 74 recollection of the transaction. Perhaps the evidence was not very strong, but I think it was sufficient to warrant the conclusion of the referee which we have considered, and his finding should be upheld.
If the positions taken are correct, then the interest of Mrs. Butterly was unaffected by the assignment, and it is not necessary to consider whether the policy was within the spirit and objects of the legislation of this State relating to insurance of the husband's life for the benefit of the wife, and for that reason was not assignable.
The other questions raised have received due consideration, but none of them present any valid ground for a reversal of the judgment, and it should be affirmed.
All concur, except ANDREWS, J., absent.
Judgment affirmed.