Story, in his Equity Jurisprudence, remarks, in reference to a bill of interpleader (section 806):
“It is properly applied in cases where two or more persons severally claim the same thing, under different titles or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the persons he ought to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He therefore applies to a court of equity to protect him, not only from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits which are, or possibly may be, instituted against him.”
I think, under the doctrine just stated, this action was properly brought. Each of the defendants claimed an interest in the policy of insurance described in the complaint. Each claimed under such policy. Peterson & Packer urged that they were its absolute owners; the defendant Ann Healey made the same claim; while the defendants Doty asserted that they were vested with a contingent interest in said policy, which, upon the death of Josephine Doty before the decease of her husband, would become absolute. Plaintiff admitted its liability under the policy in question to the legal owner thereof, either for the sum of $2,000 on the death of the insured, or for the sum of $740 when the action was commenced, if it should appear that such sum was then due under the option contained in the eighth clause of said policy. An action had been commenced by Ann Healey, who claimed to be the holder of the policy, to recover $740, under the provisions of the said eighth clause. Each of the defendants had served a notice upon plaintiff, forbidding the payment to Ann Healey of the sum claimed by her. When this action was commenced the plaintiff was placed in such a position that if Ann Healey should recover judgment, and it should be compelled to pay the amount of her claim, it might be subjected to other actions by the other defendants, and hence would be liable to a double recovery under the same policy.
I think, therefore, that the conclusion reached by the learned trial judge—that the action was properly brought for the purpose of protecting plaintiff from a multiplicity of suits, and. also from a double recovery—was correct. See Crane v. McDonald, 118 N. Y. 648, 23 N. E. 991. I am unablé to agree, however, with his conclu*919sion “that the defendants Starks A. Doty and Carrie E. Doty, or either of them, have no longer any interest, either actual or contingent, in said policy.” The instrument insured the life of Alonzo H. Doty in the sum of $2,000 for the term of his natural life; said sum being payable to his wife, Josephine, or in case of her death before that of the insured, to their children, said Starks A. and Carrie E. Doty. It was held, of a similar policy, in Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. 267, that the wife and children acquired a vested interest in the policy at the moment of its delivery to the insured. See U. S. Trust Co. v. Mutual Ben. Life Ins. Co., 115 N. Y. 152-157, 21 N. E. 1025. So, in this case, on the delivery of the policy both the wife and children of the insured acquired a vested right therein, and I am unable to see why such right in the children does not still exist. The defendants Packer & Peterson have not elected to convert the policy into cash, in pursuance of the provisions of the eighth clause therein, if they had the right so to do, and the trial court determined that the defendant Healey acquired no interest in the policy under the verbal assignment to her; hence the question involved may be considered as if the instrument did not contain the said eighth clause. Here, then, is a policy providing for the payment of $2,000 to the wife of the insured, if she should survive him, and, if not, to the defendants Doty, her children. She could, with her husband’s assent, assign her interest in the policy to the defendants Peterson & Packer, or to Healey, but she could not by such assignment interfere with or cut off the rights of her children. Their interest remains, the same as if the assignment to Peterson & Packer or Healey had not been made. Chapter 248 of the Laws of 1879, which authorizes a married woman, with the written consent of her husband, to assign a policy of insurance taken for her benefit on the life of her husband, contains no authority for her to assign the interest by the express terms of the policy reserved to her children. Insurance Co. v. Weitz, 99 Mass. 157; Insurance Co. v. Burroughs, 34 Conn. 305; Chapin v. Fellowes, 36 Conn. 132. If the policy in question had not been made payable to the children in case of the death of Josephine prior to that of her husband, the former could, under the act of 1879. with the consent of her husband, have conveyed an absolute title to the policy. It has been held that under chapter 80 of the Laws of 1840, and the several acts amendatory thereof, children of a married woman who has a policy on the life of her husband, unless actually named as beneficiaries in the policy, have no interest therein. Olmsted v. Keyes, 85 N. Y. 593-605. But in this case the policy is made payable to the children if the wife does not survive her husband. They are beneficiaries therein, and I am unable to see how she can extinguish their contingent interest. The case of Anderson v. Goldsmidt, 103 N. Y. 617-621, 9 N. E. 495, does not hold a doctrine contrary to the views above expressed. In that case the insurance was upon the life of the husband, for the benefit of the wife, and, in case of her death before his, was payable to their children. It provided for the payment of $1,000 on May 31, 1885, or within 60 days after his decease, and after due proof of Ms death had been *920given. Prior to May 31, 1885, the wife, with the consent of her husband, assigned the policy. The action was brought after May 31, 1885, the policy having then matured. When the action was brought, the interest of the children, by its terms, had ceased. The wife was living, and under the terms of the policy the $1,000 was payable to her. When the action was commenced, any contingent rights of the children therein had become extinguished by the lapse of time, and the policy, by its terms, was payable to the widow or her assignee. It will be seen that the question involved in this case was not before the court in the cases cited. In Insurance Co. v. Van Campen (Sup.) 11 N. Y. Supp. 103, I infer that the policy, by its terms, was not made payable to the children of the assured in case of her death, and hence the case is not in point. I think, therefore, that, while the assignment to Peterson & Packer conveyed the interest of the insured and his wife in the policy in question, the interest of the children therein remained unaffected. Should the insured die before Josephine, Peterson & Packer will be entitled, as assignees of Josephine, to recover the sum of $2,000. But, should Josephine die before her husband, the defendants Doty will receive the insurance money, no one authorized to do so having taken the benefit of the option in the eighth clause. The only effect of the assignment to Peterson & Packer was to place them in the place of Josephine, and the right of defendants Doty remained, and remains, unaffected. Yet, by the judgment rendered herein, their rights under the policy are cut off, although the defendant Josephine should not survive her husband, and although no one authorized to do so should ever exercise the option contained in the eighth clause of the policy. For the reasons above suggested, I concur with the conclusion reached by Justice Mayham,—that a new trial should be directed.
It is claimed by the learned counsel for defendant Healey that, under the contract of insurance, Alonzo H. Doty must be deemed the “holder,” and entitled to convert the policy into cash, under the eighth clause thereof. If this position is correct, probably the delivery of the policy to defendant Healey by the insured in consideration of the loan of $600 might be effectual to transfer the same. Marcus v. Insurance Co., 68 N. Y. 625. In the case cited it was held that a life insurance policy could be transferred by a mere delivery, without an assignment in writing, although the policy, by its terms, requires a written assignment. If the insured, Alonzo H. Doty, was the “holder” of the policy, within the meaning of the eighth clause of the policy, that provision in the contract was entirely for his benefit, and he could transfer his separate interest in the policy alone, without his wife joining in the transfer; and, as to an assignment of his separate interest under the contract of insurance, the act of 1879 did not apply. Hence I am inclined to believe that ,if the position of the counsel is correct, that Alonzo H. Doty should be deemed the holder of the policy, his conclusion that the defendant Healey was entitled to maintain her action is also correct.
The question therefore arises, who was the holder of the policy? By it an insurance was effected for the benefit (1) of the wife, (2) *921the children, and (3) the estate of the insured, in case his wife and . children did not survive him. Does the word “holder” mean the party having possession of the policy, or the person or persons to whom it is made payable? If a promissory note is made to several persons, and in possession of one, each of them is the legal owner and holder. The possession of one is that of all. If a note is made to A., but in possession of A.’s agent, A. is still the holder. I am inclined to believe that this policy, which secured the payment of $2,000 to Josephine Doty on the death of her husband, or, in case she did not survive him, to her children, or, if neither wife nor chil'dren survived him, to his personal representatives, must be deemed held by the parties to whom it was payable, and that the possession of the policy by the insured, or by either of such parties, must be considered the possession of all. If the policy had been for the wife’s benefit alone, she would have been the holder, and could have exercised the option in the eighth clause, or could, with her husband’s consent, have assigned the policy, and her assignee could have exercised such option. In such a policy as the one under consideration, in which several parties are interested, I am inclined to think that the option can only be made by all these parties together; that the word “holders” means the persons to whom the policy is by its terms payable,—the owners thereof. I conclude, therefore, that the trial judge was right in holding that the defendant Healey was not entitled to maintain her action against the plaintiff. For the reasons first suggested, the judgment should be reversed, and a new trial granted; costs to abide the event.
HEEEICK, J., dissenting.