The proceeding should be dismissed.
It is evident from the stipulation of agreed facts that it is incomplete. Relevant facts are omitted, some of which are critical to a proper determination, given the rules which circumscribe the court’s power in submitted controversies. The most significant omission is that of the conversations from which emanated whatever arrangements there were for the transfer of the life insurance policies. Consequently, it is not possible to find the ultimate facts which would determine the nature, effect, and legal enforcibility of the arrangements.
It is also evident from the stipulation, confirmed by the briefing, that it was executed without awareness of the rules applicable to the procedure (Civ. Prac. Act, §§ 546-548). Consequently, the stipulation is defective and requires numerous inferences of fact by the court, a process precluded in this type of proceeding (Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266, 269; Cormeny v. American Bosch Arma Corp., 7 A D 2d 912, involving a stock option).
*166Taking the stipulation at full value it is also evident that the so-called offer could not have been a naked offer but was related somehow to the sale of the other business assets. Hence, apart from the procedural bar on the making of inferences of fact, one may not conclude on this presentation, that the offer was without consideration.
■ Assuming that the offer was without consideration the death of Mr. Kaufman is not determinative. "While generally an offer terminates with the death of the offeror or offeree, the question remains to whom the offer was addressed (Restatement, Contracts, § 28; 1 Corbin, Contracts, § 56; cf. 1 Williston, Contracts [3d ed.], § 62). Thus, one must first conclude, as a matter of factual inference, from the evidentiary facts whether the offer was addressed only to the offeree or whether it also ran in favor of his assigns and estate. The subject of the offer being life insurance, an issue of fact, resolvable only by inferences, unavoidably arises. The parties might well (indeed should) have contemplated the death of the insured, the most significant term of a life insurance contract.
Of course, if there was consideration for the offer, there was a binding option contract. In that case, the general rule, unless the nature of the proposed contract confines performance to the offeree, is that the option survives the death of the offeree (Restatement, Contracts, § 48, Comment a; § 49).
The absence (like so many other omissions in this stipulation*) of a stipulated fact that the offer was communicated to Mr. Kaufman is of no significance. It suffices that the offer was communicated to his agent, Mr. Berick (Restatement, Contracts, § 23, Comment a).
To top it off, it is manifest that the court in finding judgment for plaintiff is making numerous inferences of fact. This is forbidden (Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266, supra; Cormeny v. American Bosch Arma Corp., 7 A D 2d 912, supra),
Finally, the result appears on this submission to be unjust. Plaintiff receives a windfall, although the undisputed circumstances indicate that it did not bargain for it. It undoubtedly preferred, as would be expected, to part with the policies and the related continuing burden of paying premiums on the life insurance of persons about to become strangers to the enterprise.*167* The individuals and their families, on the other hand, had every reason to be willing to carry the burden in exchange for a protection they would no longer receive through the assets of their former corporation. The fair and just result is frustrated, so far as one knows from the submission, only because Mr. Kaufman died too soon for him or his agent to complete the necessary arrangements. Perhaps even in a plenary action on complete proof, the estate will not prevail, because of the impact of rules of law and because the arrangements never passed beyond an inchoate phase. But surely, on this stipulation, incomplete because of obvious omissions, defective because dependent on inferences of fact, ill-born because of misconception by both parties as to the governing procedure, there is no occasion to precipitate a result, unnatural and not contemplated by the parties.
Rabin and McNally, JJ., concur with Stevens, J.; Bkeitel, J. P., dissents in opinion in which Valente, J., concurs.
Judgment for plaintiff, upon the law and the facts, in the sum of $77,040.32, without costs. All questions to be resolved by the submission are answered in the negative. Settle order on notice.
Perhaps the worst omission is the letter of the attorney for the outgoing stockholders containing a proviso that the stockholders- could obtain the /policies upon payment of the cash surrender values. The letter is dated April 4, 1961 when the. principal contract was closed, and it appears only as an exhibit to defendant’s brief.
On the argument, it was verified that the policies were not paid up and there were future annual premiums to be paid.