(dissenting):
The plaintiff brings this action upon a. policy of life insurance issued by the Metropolitan Life Insurance Company of the city of Hew York, claiming to be entitled individually as beneficiary and' *502donee of the said, policy. The Metropolitan Life Insurance Company does- not dispute its liability under the policy, but sets up that there are other claimants who dispute the' claim of the plaintiff. These, other claimants are children of the insured, and contend that the policy is part of the estate of the insured. The court below, sustaining the latter claimants, the individual defendants, gave the proceeds to the plaintiff in her capacity as administratrix of the insured. ■ ' „ -
The policy here sued upon was issued in 1881 on the life of Adam Baker. It was issued in consideration of representations and agreeinents contained in the application therefor, and said application was made a part of this, policy. In the application Adam Baker stated that he was married, and directed that the benefit be paid to his “ wife,” leaving blank, however, the space intended for the name ' of the beneficiary. The policy or certificate proper ,contained no designation of beneficiary. At, the time of the issuance of -the policy Bose Baker was the wife of Adam Baker, the insured. Bose Baker died on or about the Í2th of February, 1886. The individual defendants are children of Adam Baker by a union preceding that with Bose Baker, Bose Bakerhaving had ño children. Adam Baker designated-no new beneficiary after the death of Bose Baker. As the plaintiff was not the wife of the insured at the time of his taking the insurance and making the designation of beneficiary, I agree that she is not the beneficiary contemplated and cannot take as such.. However, upon the death of Bose Baker the policy reverted to Adam Baker (Olmsted v. Keyes, 85 N. Y. 593), and, in my.opinion, the evidence is sufficient to establish a gift thereafter of the' policy to the plaintiff. ' .
The plaintiff is debarred from testifying concerning the transactions between her and the insured under section 829 of the Code of Civil Procedure. She does testify, however,, that she filed the policy" and proofs of death with the Metropolitan Life Insurance.Company; that she had had the policies in her possession for four years before the death of the insured; and that-during those four years she had paid the premiums upon the policy. ■ Her testimony is supported by the testimony of Mary Sullivan, a boarding-house keeper with whom the plaintiff and the insured lived for a time in 1901, that the insured in 1901 promised to" give the policy to the plaintiff df *503alie would marry him, as he had nothing else to offer, and that the plaintiff thereafter paid the premiums upon the policy. The plaintiff subsequently married the insured. This testimony is not contradicted or shaken by the defendants, their case being confined to showing that the plaintiff was not the wife of the insured at the time the policy was issued and that there has been no designation of a beneficiary by the insured subsequent to the death of his then wife.
There is no direct proof of the delivery of the policy to the plaintiff, but it may be implied from her possession and from the circumstances surrounding the parties and their relations. In Bedell v. Carll (33 N. Y. 581) the plaintiff sued upon a certain promissory note made to her father and indorsed by him in blank and which plaintiff alleged that he had given and delivered to her. Upon the question of delivery and gift the court in tfiat case said : “ Before his death, and it may be admitted during his last illness, he indorsed the note in blank, and delivered it over to the plaintiff. I repeat, delivered it to the plaintiff, for the production by her of the note, indorsed in blank, was ample proof of its delivery. Why'this indorsement and delivery of the note into the immediate possession of the plaintiff, unless a'gift was intended? It was precisely what was required to be done to make a valid and effectual gift. Tiie acts are explainable on no other theory. When, therefore, the plaintiff rested, she had shown prima facie a gift of the note from her father; and the defendants offering no proof, upon this theory of the case, their exception to the direction of the court to the jury to find a verdict for the amount of her claim was without force.” Of similar import is the case of Rix v. Hunt (16 App. Div. 540), in which case the notes were uniudorsed.
If a consideration were required to support the gift, then the marriage was sufficient. In a gift, however, a consideration is not necessary, but delivery and possession are necessary. Upon the facts here I think the conclusion reached that the plaintiff was not the donee of- the policy is against the weight of evidence and that the judgment accordingly should be reversed.
Judgment affirmed, with costs. Order filed.