The infant plaintiffs are the beneficiaries named in a policy of insurance issued by the defendant to their deceased father. This insurance policy differed in important particulars from the ordinary straight life policy. Bound up with the obligation to pay money upon [the] death was, among others, the obligation on the part of the insurer, to arise on the election of either the insured or a beneficiary, to retain the sum during the lifetime of the beneficiary or for a specified period, during which the company would pay thereon interest monthly at such rate as the company may declare for the year, but never less than the equivalent of the yearly rate of three per cent, with the obligation at the death of the payee, or at the end of the specified period, to make payment of the principal as provided in the election of the particular option. The father died without having exercised the option. The infant beneficiaries, as is now also their right, through their guardian, have chosen to take advantage of an option and have named a specified *Page 104 period, namely, until they attain their majority, during which the interest is to be paid as noted above.
This action has been brought to obtain specific performance of the agreement, upon refusal of the defendant to comply therewith. It is sought to use the infancy of the plaintiffs to nullify an integral part of the obligation and to limit such obligation to the mere payment of money, as the option has become of value to the infants in the judgment of the guardian, and an undesired burden to the defendant. Must the court deprive the infants of the advantage of their right?
As a complete defense the defendant pleads in its answer section 85 of the Domestic Relations Law (Cons. Laws, ch. 14) and section 111 of the Decedent Estate Law (Cons. Laws, ch. 13). On motion of plaintiffs under Civil Practice Rules 109 and 112, this defense has been sustained heretofore and judgment rendered for the defendant. Plaintiffs now appeal from the affirmance of the Appellate Division, one justice dissenting.
The assured had the undoubted right to enter into the contract and to agree with the defendant upon the provisions in question. If these provisions enlarge, in a manner not against public policy, the power of the fiduciaries, effect thereto should be given. Otherwise, the solicitude of the law for the protection of infants is disregarded, and the provision becomes forfeited when the beneficiaries are minors. It cannot be held to have been without the contemplation of the contracting parties that the named beneficiaries might be minors at the death of the assured and that the assured might die without previous exercise by him of such option. The death of the assured while his children were minors was one of the likely happenings. The contract, however, contains no provision indicating that the right of the beneficiary to exercise such option should be lost in the event that the death of the assured occurred during the minority of the beneficiaries. Section 85 of the Domestic Relations Law and section 111 of the Decedent Estate Law limit the powers of a guardian and *Page 105 other fiduciaries "holding trust funds for investment." These statutes have no application to the facts herein. The guardian does not first obtain funds as such plus the subsequent opportunity to invest, but a bundle of contractual rights, which have certain very valuable options as a component part thereof, all of which vest simultaneously.
By the terms of the insurance policy the beneficiaries acquired a vested interest in the performance of the contract by the defendant. Hence the infants obtained a right in the exercise of the option. Such an interest is in the nature of a property right. Accordingly, the problem at bar is not whether the guardian may invest funds already in the possession of the infants, in a non-legal security, but whether an infant shall be compelled to accept a portion of a gift and forfeit the balance. In other words, assume that the infants may receive by way of interest two per cent or two and one-half per cent upon deposit of a like sum in a savings bank, or a like amount of interest upon the price which must be paid for a security legal for the investment of the funds of infants, instead of three per cent upon this fund with accretions, must a court then compel the infants to sacrifice this difference every year, not only up to the coming of age of the infants, but during their entire lifetime? A guardian for an infant would not be compelled to decline a gift of a non-legal investment given upon condition that it should not be sold. In the case at bar, for the infants to be compelled to accept a lump sum payment would mean a substantial loss of value to them. There is the further factor that the non-legal property, namely, the exercise of the option, is one which cannot be separated from the remainder of the gift or be converted into other property.
It is true that an investment of the funds of an infant held by a guardian in real property would be forbidden, and yet a court would not compel the sale of such real property belonging to an infant except upon a finding by a court that such sale was for the best interest of the infant. In seeking the best interests of the infant, which has always been the guiding principle for the courts, it must appear *Page 106 that the guardian has exercised his judgment and determined that the action he seeks is for the best interests of the infants. The court looks to this discretion which resides in the guardian and controls his judgment. The court will not substitute its judgment for that of the guardian as to what is for the best interests of the infants unless unusual circumstances are shown. Here the defendant is demanding the sacrifice of a portion of the property of the infants without regard to whether this forfeiture is or is not for the best interests of the infants and against a finding by the guardian that the best interests of the infants are directly to the contrary. The species of property in the case at bar is neither money nor real property, but a contractual obligation. (Compare Crossman Co. v. Rauch, 263 N.Y. 264.) If it were to be treated as an obligation only to pay a sum of money, which it is not, the infants would lose and the defendant gain monetary and other advantages.
The judgments should be reversed and judgment granted in favor of the plaintiffs for the relief demanded in the complaint, with costs in all courts.