(dissenting):
I am of opinion that the plaintiff is not entitled to recover without proving that the beneficiary died prior to the death of the insured. The defendant is. a casualty insurance company and the court is not aided in the construction of its policy, as in the case of fraternal and mutual beneficiary policies, by any constitution or bylaws showing on certificates or policies of fraternal or mutual beneficiary associations, as is commonly shown in actions, that its purpose and object was to make provision for the surviving family of the deceased member or of some member thereof. This insurance .policy is an ordinary contract made .by the defendant for its own benefit pursuant to statutory authority. In the event of the ■ death of the insured it agreed to pay the sum of $1,000 to the beneficiary named in the stub attached to the policy, and it has done so. The provisions of the policy containing this obligation are as fol- ' lows : “ The indemnity for loss of life shall be payable to the beneficiary named in the stub attached hereto, or in the event of the prior death of such beneficiary, or in the event that no beneficiary is named in the said stub as herein provided, then to the legal representatives of. the assured.” There was no reservation of the right to .change the beneficiary as in certificates or policies issued by fraternal or mutual benefit associations which has been deemed an important consideration in the construction of such'policies. (Balder v. Middeke, 92 Ill. App. 227; 98 id. 590; affd., sub nom. Middeke v. Balder, 198 Ill. 590; Supreme Council v. Kacer, 96 Mo. App. 93; Southwell v. Gray, 35 Misc. Rep. 740.) Mo controlling authority in this jurisdiction is cited and I find none. The case of St. John v. Andrews Institute (191 N. Y. 254) did not involve the question. As I read Fuller v. Linzee (135 Mass. 468) that decision is not in point. It was not an action against the insurance company but a proceeding to determine who was entitled to the fund after it had been paid over by the company, and the court expressly refrained from, giving an . opinion with respect to who might have maintained an action against *484the company. There the contract of insurance was made by a New Jersey corporation to be performed in that Staté, and it was construed in accordance with the statutes therefor. A married woman took out a policy, on the life of her husband under the statute which provided that at his death it should be payable to her in case she survived him but that otherwise the insurance should go to the children. The policy was construed as if it followed the phraseology of the statute, which, I think, clearly distinguished it from the case at bar. Hildenbrandt v. Ames (27 Tex. Civ. App. 377; 66 S. W. Rep. 128) is distinguishable on the ground that there by the express terms of the policy it was not payable to the beneficiary unless liming at the time of the death of the insured, and that merely showing that they perished in a common disaster did not establish her survivorship or entitle her administratrix to recover. • There is no presumption of survivorship between persons who die in a common disaster in the absence, of evidence other than sex, age or health, tending to show survivorship; but for the purpose of settling rights to property it is presumed in such circumstances that they all died at the same time. (St. John v. Andrews Institute, supra; Young Women’s Christian Home v. French, 187 U. S. 401.) According to the terms of the policy if the insured and the beneficiary perished at the same instant of time I think the beneficiary took, for it is only in the case of the prior death of the beneficiary that the legal representatives of the assured were to take. There was here the moment the policy was issued a vested interest in the beneficiary which could be divested only by her death prior "to the death of the insured (Washington Central Bank v. Hume, 128 U. S. 195; Garner v. Germania life Ins. Co., 110 N. Y. 266; Fowler v. Butterly, 78 id. 68) ; and the burden of proof of that point was on the plaintiff, who is the légal representative of the insured, and whose right is dependent, for it is so conditioned, on the death of the beneficiary during the lifetime of the insured. (United States Casualty Co. v. Kacer, 169 Mo. 301; Cowman v. Rogers, 73 Md. 403, 406. See, also, Young Women’s Christian Home v. French, supra.)
I, therefore,, dissent and vote to affirm the determination of the Appellate Term.
Determination of Appellate Term and judgment of City Court reversed, and new trial ordered, costs to appellant to abide event.