J. (dissenting). The question presented by this appeal is whether plaintiff may maintain an action on the oral agreement, allegedly made by her late husband, in the face of subdivision 9 of section 31 of the Personal Property Law. I do not see how she may, for that subdivision, insofar as here relevant, provides that
“a contract to assign or an assignment * * * of a life * * * insurance policy, or a promise * * ’ # to name a beneficiary of any such policy ” ' '
is “ void ” unless in writing and subscribed by the party to be charged. Concededly, there is in this case no writing or memorandum of any sort whatsoever.
The purpose of subdivision 9, as plain as its language, was to bar all claims based on oral evidence of an assignment, or of a promise to name a beneficiary, of a life insurance policy. To allow such claims, it was recognized, would introduce great *206uncertainty into the disposition of life insurance proceeds; and, by opening the door to perjured testimony and fraudulent claims, it might work to defeat the intent of the deceased more often than to effectuate it. (See, e. g., Memorandum submitted to Governor by Superintendent of Insurance, in connection with bill adding subd. 9.) In requiring a writing, therefore, the legislature gave effect to the wise public policy favoring certainty in the rights of a deceased’s named beneficiaries — the same policy which this court voiced some 50 years ago in Hamlin v. Stevens (177 N. Y. 39, 47-50), when it wrote that oral agreements, such as the one before us, “ are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. They are the natural resort of unscrupulous persons who wish to despoil the estates of decedents [pp. 47-48]. * * * Such contracts are dangerous. They threaten the security of estates and throiv doubt upon the power of a man to do what he wills with his own [p. 50].”
Whether plaintiff’s arrangement with her husband be considered an assignment, a promise to assign or a promise to name a beneficiary, it is precisely what, in express terms, the statute renders void. And it matters not, in the words of subdivision 9, whether it was “ with or without consideration ” to the promisor, in this case, the husband. Plaintiff wife seeks to avoid the inexorable force of the statutory language, first, by urging that her husband made a valid gift of the policy through manual delivery, and, second, by invoking the doctrine of constructive trust. We find no aid for her position in either theory, for both fly in the face of subdivision 9. To permit that provision to be by-passed would, in effect, be to write it out of the statute of frauds.
Delivery, without a writing or other signpost, is equivocal and ambiguous, and the purpose of the legislation, the policy underlying it, would be entirely frustrated were we to say that the requirements of the statute could be avoided by delivery. Upon the death of the insured, the policy must, of necessity, come into the hands of some other person. If that individual, though not the beneficiary named in the policy, were permitted to bring an action based on an oral assignment, by merely asserting delivery, the doors would again be opened wide to perjury and fraud, for the action would still be based on paroi evidence, the very *207thing that the statute, with its insistence on a writing, was designed to prohibit. Indeed, plaintiff is not even in possession of the policy at the present time, and there is nothing more than her oral assertions to lend any color or support to her claim of delivery; there is nothing more, in short, than just the paroi evidence of an assignment which the statute categorically proscribes. The conclusion is inescapable that the statute means what it says, that it makes no exception for delivery, but voids any assignment or gift of a policy which is not evidenced by a writing.
Nor is there any place here for the doctrine of constructive trust. While plaintiff’s account of the transaction, if true, may arouse our sympathy, that surely is not sufficient reason to ignore the statute of frauds. We misconceive the constructive trust doctrine if we were to apply it in this case to overcome the statute. (Cf. Meltzer v. Koenigsberg, 302 N. Y. 523, affg. 277 App. Div. 1050.) In point of fact, it appears that the provision in question was passed to prevent the very type of claim now being advanced by plaintiff. (See, e. g., Mitchell v. Mitchell, 290 N. Y. 779, affg. 265 App. Div. 27, which was followed by L. 1943, ch. 104, adding subd. 9.)
Claims asserted in opposition to a statute of frauds are, in the very nature of things, frequently of an appealing character, and the present one is undoubtedly no more so than many that will arise in the future. We may not, by judicial construction, repeal a plainly worded provision because it may appear to operate against a dutiful wife or because it may seem to work a hardship. The simple fact is that the statute in terms voids every oral assignment of a life insurance policy and every oral promise to name the beneficiary of such a policy. There is neither warrant nor justification for a court to dispense with the legislative requirement of a writing. The alleged agreement being oral is unenforcible. The Appellate Division was eminently correct in granting defendant’s motion for summary judgment.
Conway, Ch. J., Froessel and Burke, JJ., concur with Dye, J.; Fuld, J., dissents in an opinion in which Desmond and Van Voorhis, JJ., concur.
Judgment reversed, etc.