-If the original contract of insurance had been made with the husband, upon whose life the policy was issued', and not with the wife, who is named as beneficiary therein, the personal representatives of the wife would have had no interest therein, since she died before her husband, and the personal representatives of the husband . would be entitled to the proceeds of the policy. That the Court of Appeals has so decided, in this case, (Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 354) I do not understand to be in dispute. But for some reason, no matter what, the application for the policy of insurance was not produced by the defendant upon the first trial, and the case was tried upon the theory that the original contract of insurance.was made with the husband.
The Court of Appeals reversed - the judgment for the defendant, and on the new trial the defendant offered in evidence the application, by which it appeared that the insured husband made the application in the name of his wife, thus making the contract of insurance in form one between the wife and the insurance company.
The policy of insurance is dated January 16, 1882/ The wife died in July, 1896. Immediately after her death, the husband wrote a letter to the president of the defendant insurance company, stating that he desired the insurance payable to his estate, and asking that it he attended to. ■ Upon .the receipt of the letter, the matter was referred by the company to its general agent, who sent an affidavit to the husband for verification, showing that his- wife had died, and that she had left no children. The affidavit was sworn to by the husband, and returned to the company, and tliere- ■ after the general agent wrote to the husband in answer .'to his inquiry: “You filed an affidavit of the death of Mrs. Bradshaw, which is all that is necessary to do in the matter. ' The records of the company will show this fact, and that the policy has been made payable to your estate.”
That the insured supposed.he had. effected insurance upon his life, payable to his estate, is beyond, dispute, and if the defendant company acted in good faith in the transaction had with him in so assuring him, I think it equally certain that it likewise so regarded, the transaction. But it is now contended on its behalf that no such insurance was effected: that a mistake occurred through a misap*821prehension of law; that it must be presumed that the husband knew the law, and, therefore, must have known that upon the death of his wife, her personal representatives had a vested interest in the policy, which neither the husband nor the insurance company could divest.
Assuming it to be true that upon the death of the Wife her personal representatives had a vested right in ..this policy, I do not think the conclusion necessarily follows that the personal representatives of the deceased husband have no claim against the insurance company. A mistake of law arises when a party has full knowledge of all the facts upon which the erroneous conclusion is based. It must, therefore, appear that the husband at the time of the transaction with the general agent knew that the contract of insurance was made by him as agent for his wife, in order to charge..him with the legal effect of such a state of facts. If he was unconscious of that fact at that time, even through forgetfulness, it is a mistake of fact. (2 Pom. Eq. Juris. [3d ed.] § 854.)
Both parties having moved for the direction of a verdict, and a verdict having been directed in favor of the plaintiffs, every question of fact is resolved in their favor. I think it could be found from the'evidence that the insured did not know at the time of the transaction between himself and the defendant, after the death of the wife, that the original contract of insiirance was made by him with the defendant as agent for his wife, and not as principal. The policy of insurance had been issued more than fourteen years prior thereto. There Was nothing in the policy to indicate that the application had been made in the name of the wife; he had possession of.the policy and had paid all the premiums, and in view of the assurances given him by the defendant that a change had been effected in the insurance so as to make it payable to his estate, the inference is well warranted that the fact that he had made the application in the name of his wife had escaped his recollection, especially in view of the fact that the insurance company had in its possession the application and knew the' precise form thereof, and the payment by him of the premiums, after being assured that-such insurance was payable to his estate.
Even if the assured is chargeable with knowledge of the precise form of the application, and he misapprehended the legal effect *822thereof, he had. a right to rely upon the presumably superior knowledge of the defendant’s general agent, and his positive assurances that the insurance was payable to liis estate. (Berry v. American Central Insurance Co., 132 N. Y. 49; Maher v. Hibernia Insurance Co., 67 id. 283 ; Heert v. Cruger, 14 Misc. Rep. 508; Cooke v. Nathan, 16 Barb. 342.) But irrespective of whether or not he is chargeable with knowledge of the facts as they now appear, and with the legal effect thereof, and regardless of the rights of the personal representatives of the wife under.the original policy of insurance, I think there was a meeting of the.minds of the parties, and a com tract was made by "which insurance was effected upon the life of the assured, payable to his estate, or at least that the defendant is now estopped from claiming that such insurance is not so payable.
It is possible that the general agent of tbe insurance company supposed that the application, had been made by the husband in his own name, and that the contract of insurance - was with him, and that it lias only been discovered since the former trial that the application is in form that of the wife; but if that be true, the fault is with the insurance company, since the application has been in its possession ever since the policy of insurance was issued.
The assured was not particularly interested in the question as to whether the defendant insurance company was subjecting itself to double liability; what he desired was insurance payable to his estate. He was assured that he had that, and he paid his premiums accordingly. If the' defendant has incurred a double liability, which. I very much doubt, it has arisen through'its own fault, and I think it is hot" now in position to urge its liability to the beneficiaries under the will of the wife, if such is its situation, as a reason for" depriving those of insurance whom the husband intended to benefit thereby.
I think the judgment should he affirmed.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact.