The determination of this appeal must- turn upon the solution of the question whether under the terms of *110the policy the beneficiary had a vested interest or whether she had a mere expectancy. If the beneficiary had a vested interest, then 'Southwell v. Gray, 35 Misc. Rep. 740, and the authorities therein cited have no application to this case. The policy upon which the action is brought contains no provision permitting the assured to change the beneficiary. The defendant is an insurance corporation conducting business under article 2 of the Insurance Law. It is significant that there is no provision contained in article 2 of the Insurance Law, similar to section 211 of article 6 of the Insurance Law, which relates to the conduct of life or casualty insurance corporations upon the co-operative or assessment plan, which permits a change of the payee or beneficiary without his or her consent.
The rule is well established that the beneficiary designated in the ordinary life insurance policy has a vested interest from the time the contract of insurance is made, in the absence of the insured reserving the right to change the beneficiary. Central Rational Bank v. Hume, 128 U. S. 195; Garner v. Germania Life Ins. Co., 110 N. Y. 266; Fowler v. Butterly, 78 id. 68; Stilwell v. Mutual Life Ins. Co., 72 id. 385; Sangunitto v. Goldey, 88 App. Div. 78; Geoffroy. v. Gilbert, 5 id. 98; Ruppert v. Union Mutual Life Ins. Co., 7 Robt. 155; Sterritt v. Lee, 24 Misc. Rep. 324.
In Bank v. Hume, supra, Chief Justice Fuller stated the rule in the following language: “ It is indeed the general rule that a policy, and the money to become due under it, belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the person procuring the insurance by any act of his, by deed, or by will, to transfer to any other person the interest of the person named.”
An entirely different question would be presented if the policy had been issued by a mutual benefit association, or if the right to change the beneficiary had been reserved in the policy, or if the rules of the insurer or the statutes of the State which became a part of the contract gave such a right of change to the insured. The distinction between these two classes of cases is recognized in many oases in this State. *111Luhrs v. Supreme Lodge Knights & Ladies of Honor, 7 N. Y. Supp. 48Y; Sabin v. Grand Lodge of A. A. U. W., 8 id. 185; Steinhausen v. Preferred Mutual Accident Assn., 59 Hun, 336.
1 can find no justification for holding that this case does not come within the general rule. Under this general rule the beneficiary had a vested interest and not a mere expectancy or inchoate right. Under the terms of the policy the legal representatives of the insured were entitled to recover only “ in the event of the prior death of such beneficiary.”
The complaint upon which the action is brought alleged that the beneficiary named in the stub attached to the policy of insurance died prior to the time of the death of the said insured. Under the terms of the policy and the allegations of the complaint, it was necessary, in order to enable the plaintiff to recover, that this allegation should be proved. The proof showed merely that the insured and the beneficiary died in a common disaster. Ho presumption exists as to who survived the other. The civil law recognizes certain rules in respect to age, sex and physical condition by which survivorship may be determined, but the common law indulges in no presumption on the subject. “ It will nob raise a presumption by balancing probabilities, either that there was a survivor, or who it was.” Hewell v. Hichols, Y5 H. Y. Y8, 89.
The question as to whether the beneficiary survived the insured was one as to which there was no evidence and as to which the law permitted no inference to be drawn.
The total absence of evidence on the subject necessarily made it impossible for the plaintiff to prevail in this action.
Judgment affirmed, with costs.