'The policy in question was issued to, purchased, owned and paid for by the husband. He had a perfect right to cause it to be made payable to such person or class of persons as he saw fit, or to his estate. There is no statute which in any manner restricted his discretion in that regard. If the policy had in terms been made payable to the wife of the insured if living at the time of his death, and if not, then to his estate, it would hardly be claimed that, under any provision of the statute referred to in the prevailing opinion, the insurance would belong to the estate of the wife in case she died before the insured. We think the provision in this policy is exactly to the same effect. Its language is: In consideration, etc., the insurer “ promises to pay at its Home Office in the City of Hew *382■ York, unto Corrió J. Bradshaw, wife of Robert C. Bradshaw, of . Jamestown, in the County of Chautauqua, State Of New York, for her sole use, if living, in conformity with the statute, and if not living, to their children, or their guardian for their use, One Thousand Dollars, (any indebtedness to the Company on account of this contract to be first deducted therefrom), in sixty days after satisfactory proof at its said office of the death of said Robert C. Bradshaw, during the continuance of this policy.” There were no - “.children,” and, therefore, it is proposed to construe the policy as if the words '“ if living, * * * and if not living, to their children,' or their guardian for their use,” had not been used, and had contained the words “ ail'd if dead to her executors or administrators.” We think no case can be found which is authority for such a constrnotion. The decision in the case’ of Whitehead v. N. Y. Life Ins. Co. (102 N. Y. 143) and what was said in the Opinion of the. court had reference to a contract of insurance máde with the wife and not by the husband as in the case at bar. In that case it was held that it Was’ competent for a wife to insure the life of her husband for her sole benefit or for the benefit of herself and children, and that just that Was done in that case and, therefore, that the estate of the husband had no interest in the fund. The terms of ■the contract, the situation of the parties and the conclusion reached by the court are most admirably and tersely stated by Judge Finch. He said : “ All three of the life insurance policies sought to be revived and enforced in this action purport on their face to be contracts "with the wife as the party assured, and not at all with the husband, who’stands in the policies as simply the life insured, his conduct and death furnishing the contingencies upon which the liabilities of the insurer are made to depend. As the relation was tersely described on- the argument, the contract is about the husband but not with him. He,. therefore, in procuring the policies to be made, in paying the premiums, in receiving and acting upon notices, and in doing whatever was necessary to perfect and continue the’ rights of the assured, must stand iii the attitude of an agent,, acting for and representing the assured (Baker v. Union Mut. I. Ins. Co., 43 N. Y. 283) and as having ho-interést in thé policies, unless, possibly, áfter the death of all of the assured. And it makes no difference that they' have been kept in total ignorance of the *383existence of the- policies for their benefit until after the death of the insured, for their claim to the fruits of the insurance must necessarily be a ratification of the acts by which it was obtained: The wife, therefore, in this case had a vested interest in the policies at the moment of their delivery to the insured by force of the statute which permitted them to be made in their existing form. (Laws of 1840, chap. 80.) Prior to that enactment and at common law it was open to question whether the wife and children had an insurable interest in the life of the husband and father (Bliss on Life Ins. § 10; Ruse v. Mut. Ben. L. Ins. Co., 23 N. Y. 516), and whether lie could protect them save by taking out policies in his own name, and for the benefit of his estate which in the end would go to them.. But this made the insurance liable for his debts, and left it impossible for those who needed assistance most to obtain it at all. (Ruppert v. Union Mut. Ins. Co., 7 Robt. 155, 156.) The statute was intended to and does remedy the difficulty. " It expressly authorizes the wife and children to insure the life of the husband and father, and hold the provision without liability for his debts, and the policies here purport to have made exactly that contract. They created a vested interest in the wife, and one also in the children, by force of the clause providing 'for payment to them if the wife should die before the maturity of the policy. * * * So that the wife held the insurance for her own benefit if she survived her husband, and the children if she died befor'e him. These persons were the assured, with whom through the husband as agent the contract was made, and they acquired and held their ownership irrespective of the question whether the policies had been actually delivered to them. * * * ' These policies, therefore, at the moment of their execution, vested in the wife and children as the assured under the provisions of the statute. Their interest was in the whole contract and not merely from year to year, and so far only as it was executed.” •
The language quoted in the prevailing opinion was not employed by Judge Finch in that case, and we think does not fully express the holding of the court. .
In the Whitehead case it is clearly pointed out that the contract of insurance was the wife’s contract; was made by her; that whatever the husband did in-the premises was as her agent; that it was *384made solely for her benefit or of her children, if any, and, therefore, of course, it was held that the estate of the husband took no interest in the proceeds. In that case it Was recited in one of the policies, the three being practically alike except as to the amount óf the premium and the amount of insurance, as follows:
“ Witnesseth, that the Hew York Life Insurance Company, in, consideration of the sum of one hundred and sixty-five dollars and fifty cents, to them in hand paid by Mrs. Mary A. Davis, wife of George Davis, and of the annual premium of one . hundred -and .sixty-five dollars and fifty cents, to be paid on the seventh day' of June in every year during continuance of this policy, do assure the life of George Davis, * *• *, for the sole use of the said Mrs. Mary A.: Davis, in the amount of five thousand dollars for the .term .of his natural-life, commencing on the .seventh of June, 1851, at noon. 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 Mrs. Mary A. Davis, or her legal representatives, within sixty days after due notice and proof ..of the • death of the said George Davis;. And in case, of the death of the said Mrs. Mary A.. Davis before the decease Of the said George Davis, the amount' of the said insurance shall be payable after her death to her children, for their use, or to their guardian if under age.” In the' case at bar the contract was''the husband’s,, was made'by him to provide for the wife in -case she survived him, and. if not, then for their children, if any, and- if' not, then for the benefit- of his estate. The contract contains no language indicative- of an intention to benefit his wife’s estate to the extent of the proceeds of Ms life insurance. .
We cannot discover that the decision in Dayton v. Caflin Co. (19 App. Div. 120), cited in the prexxailing opinion, has any bearing upon the question here involved. There the insurance company issued two policies upon the life of one Dayton, plaintiff’s husband, each for $5,000, one payable directly to the wife and the- other' to the husband himself, but. by him assigned to. his wife. The defendant claimed that it was entitled to the whole of the insurance because the moneys with which the premiums Were paid were -stolen from it by the insured. It was held in substance that if all the *385moneys so used in payment of premiums had been stolen from the defendant it would be entitled to the whole of the insurance, but that if the wife paid any part 'of the premiums, or if the husband made such payments with moneys not so stolen, the wife would be entitled to receive such proportion of the entire fund as the amount of premiums paid by her bore to the entire amount of premiums paid.
Brummer v. (John (86 N. Y. 11) was a case in which the policy was made payable at a certain date, but provided : “ Or should he (the insured) die previous thereto, in sixty days after due notice and proof of his death, to her (his wife, the plain tiff) or her executors, administrators or assigns.” The court held that under such a policy the wife was entitled to the benefit of the provisions of the statute, although in that case the question now being considered was in no manner involved. If the policy in suit had been made payable to the wife, if living, and if not, then to her executors, administiators or assigns, appellants’, counsel practically concedes the proceeds of the insurance Would belong to the wife’s estate, there being no children.
■In Walsh v. M. L. Ins. Co. (133 N. Y. 408) the policy was issued upon the life of the husband for the sole use of the wife, the amount to be paid upon his death to her, if living, “ and if not living, to her children.” The wife died leaving children her surviving, and after-wards the insured died. It was held that the children alone were entitled to participation in the insurance fund. It was held, as stated in the head note, “ that upon the death of the mother all interest in the policy vested at once in her children then living.”
At the time of her death, in the case of Harvey v. Van Cott (71 Hun, 394; affd., sub nom. Harvey v. Wright, 149 N. Y. 579), Mrs. Mary Van Oott held a policy of insurance for $2,000 upon the life of her husband, Edward B. Van Oott, payable “to her or her legal representatives upon his death, or, if she should not be then living, payable to her children or their guardian if under age.” It was held that the insurance money under that policy belonged to the wife and passed under her will. It is difficult to see how any other decision could have been reached, because by the express terms of the policy it was made payable to her if living, and if not, to her *386legal representatives, tinder no circumstances could: the estate of the husband have any interest in it unless the wife failed to make disposition of it in her lifetime. That decision is not in conflict with .the contention of the appellants in the case- at bar. Here- the insurance was payable to her only in case she survivéd her husband.
We- think the provisions' of the ’ statutes to which attention is called in the prevailing opinión have no reference,to a policy issued as:;was the..one in question:,'""hut that those provisions relate to insurance .effected by the wife or children upon the life of the bus-, bund or father. It was provided that such a. contract made by the wife should be legal; that, in Case- she survived the period or term of the insurance, any sum obtained under it should be her property, freg. from any claims of the representatives of the husband or of his: creditors or of any person or persons claiming by, through or Under him, provided that the yearly premium in excess of $500 paid put of the property or funds of the husband, with the interest thereon, should inure to the benefit of tlie creditors of the: husband.’ (Laws of 1840, chap. 80, § 1, as amd, by Laws of 1858, chap. 187, § 1, as amd. by Laws of 1870, chap. 277.) It was then provided that a married woman in case she have no -child or children born of her body or any issue of any such child or children-, -may dispose of such insurance as she may see fit, by will,, assignment or otherwise (Laws, of 1870, chap. 277, § 2, as amd. by Laws of 1873, chap. 821. See, also, Laws of 1879, chap. 248); and by section 2 of the act of 1840 or- 1858 (as amd. by Laws of 1866, chap. .656) she is authorized, to make 'provision for its disposition in the policy itself. 1 can find no language in the “act” which indicates ati intention to prevent, a person from insuring his life for the benefit of - his wife, if living at, -the time of his death, and if not then for the benefit of his estate. We think the ^policy in -question is of that character and aptly expresses just that intention on the part of the insured. In other words, that he intended to provide for his wife if she survived him, but if . she did not and no child or children were left surviving, -or their issue, he did not intend such insurance should become a part of the estate of his deceased wife rather, than of his own. ‘ ' -
■In view of the conclusion above indicated it is tinrieeessai’y to discuss the question as to whether pr not the agreement made with *387the defendant subsequent to the death of the wife was binding or effectual as an estoppel against it.
■ The judgment should be reversed and a new trial granted, with costs to appellants to abide event, upon questions of law only, the facts having been examined and no error found therein.
Nash, J., concurred.
Judgment affirmed, with costs.