The 'action is brought by the administrator of the assured to recover $1,000 on a policy of accident insurance issued by defendant company to one ' Julia Dunn, in which policy Mary Hagenbucher was named as beneficiary of the indemnity for loss of life on the part of the assured. The policy, after providing for payments of various sums for injuries not involving loss of life, reads as *112follows: “ 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.” The facts of the case are not disputed. It is conceded that the assured and the beneficiary perished in June, 1904, in the burning of the steamboat General Slocum; and there is no evidence of survivorship. The court below held, in dismissing the complaint, that the burden was upon the plaintiff to prove that the intestate survived the beneficiary, and that in the absence of such proof the plaintiff could not recover*.
The appellant contends, however, that it is evident from the reading of the contract as an entirety, which is upon a printed form furnished by defendant, that the parties to the contract did not have in contemplation the simultaneous death of the assured and the beneficiary ; that the sole intent and purpose of the clause as to life indemnity was to provide for the payment of the life indemnity to the beneficiary should she be living and capable of receiving the same at the time of the death of the assured. In support of this contention the appellant cites various authorities on the construction of wills which, however, do not seem to be applicable to the question involved in this controversy. This is not a question of the intent of a single party signing an instrument, but of the intent of both parties to a written instrument, as embodied in the language of the instrument itself. On the point in controversy the instrument is not ambiguous, but clear 'and explicit in its provision that, in the event of the death of the assured, “ indemnity for loss of life shall be payable to the beneficiary named in the stub;” with the further provision that, if no beneficiary is named or “ in the event of the prior death of such beneficiary/1 it shall be payable to the legal representatives of the assured.
There can be no question that this created a vested interest in the beneficiary upon the issuing. of the policy, which vested interest would be divested by the happening of the *113death of the beneficiary prior to the death of the assured. “ The alternative beneficiary is not entitled to the fund until the vested right of the primary beneficiary has been divested;” the primary beneficiary is not “called upon, in the first place, to prove a negative * * 'x' ; the burden of proof is therefore clearly and logically upon the alternative beneficiary to show a divestiture.” United States Casualty Co. v. Hacer, 169 Ho. 301.
The various authorities cited by the appellant in contravention of this rule appear to relate to policies of insurance wherein the assured reserved the right to change the beneficiary, in which case there would clearly be no vesting of rights under the contract in the beneficiary; but no such provision is contained in the policy involved in this action.
For the reason above stated the judgment should be affirmed.