Miller, J. :
This is an action by the administrator of Julia Dunn, deceased, on a policy of accident insurance issued by the defendant to the deceased. The policy provided: “ 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 assured’s sister, Mary Hagenbucher, was named as the beneficiary in the stub. Both the assured and the said beneficiary perished‘in what is known as the “ Slocum disaster,” the accidental burning of the steamboat General Slocum, and survivorship was unaseertainable.
In the case of the death of two or more persons in a common disaster, there is no presumption either of survivorship or simultaneous death. (Newell v. Nichols, 75 N. Y. 78.) Before attempting to apply that rule, however, it is necessary . to construe the contract. Although the language of the clause in question was in fact the language of the defendant, as it was a part of its printed form of contract, we think it is to be construed as the language of the assured. That particular form of policy was accepted by the assured, who thereby adopted as her own "the language of the clause providing for the disposition of the money to become due under it. The assured alone was interested in that question*.
It is not easy to perceive why a different rule of construction should be applied to the clause of a life insurance policy providing . for the disposition of the money to become due under it from that applicable to a testamentary disposition, where both have the same, object, i. e., provision for those who are the natural objects of the [480]*480assured’s or the testator’s bounty. The mere fact that one instrument is a will and the other a contract /appears to us to be of little consequence. ' In the one ease the intention of the testator, in the other the intention of the insured is; paramount. The insurer has no interest in the matter, except tjo have the provisions definite enough for its protection. . ■. ■
It is' obvious that the policy im question'was not taken out for the benefit of the personal representatives of the.berieficiary named. They were not in the mind,eitj^r of the insured or of the-insurer. Upon its face the policy was procured for the benefit, first, of the assured’s sister,, second, of the assurpd’s estate or next of kin. The indemnity was made payable to the sister, or in the event of her prior death, to the legal representatives of the assured, Phraseology is important only to determine the intention, which in this case was, that the indemnity should be paid to the sister if living, otherwise to the legal representatives of the assured. And: that pmqaose could not have been made more manifest if that language had been employed. The survivorship of the sister, then, was a condition of her taking, and it begs the question to say that she took a vested- interest subject to being divested by her prior death. No doubt the law is that in the absence of a reservation of the right to change a beneficiary that may not be done by the assured. But the cases on that head have no application whatever to the question now being considered^ Here the beneficiary nariied was not to take at all events, but only in case she survived the assured. And the case is, therefore, in principle precisely like the cases of fraternal or mutual benefit insurance, in- which the right to change the beneficiary is expressly reserved, and in which it has been uniformly held, as is conceded by the respondent, in this and other jurisdictions, that those claiming under the beneficiary named must prove survivorship. Southwell v. Gray (35 Misc. Rep. 740) is a well-considered case of the class referred to. In that class of cases the. beneficiary named takes if no change is made. In this case the beneficiary first named was to take if living.
If the parties to this contract of insurance intended what seems to us to be manifest, i. e., that the indemnity should be paid to the sister if living, and if riot, to the legal representatives of the-assured, ' it would seem to follow, as of course, that the fact of survivorship [481]*481being unascertainable, the indemnity would go to the representatives of the assured within the principle of Newell v. Nichols (supra) and Young Women’s Christian Home v. French (187 U. S. 401), not upon any presumption, either of survivorship or of simultaneous death, but because the fact being unascertainable, those claiming through the survivorship of the sister could not establish it.
In St. John v. Andrews Institute (191 N. Y. 254, 275) Chase, J., speaking for the court, said: “ It has frequently been held in contracts relating to insurance and other matters where a certain result is to follow in case of one beneficiary dying before the insured or promisor, that in case • of a death of the insured or promisor and the beneficiary at the same time that the result will follow and that dying at the same time is equivalent to dying before.” While that statement, as applied to insurance contracts, is dictum, it is supported by the cases cited by Judge Chase, including Southwell v. Gray (supra) and Fuller v. Linzee (135 Mass. 468), upon which we particularly rely. In the latter case a policy of life insurance- was issued upon the life of a husband, which recited the payment of premiums by the wife who was styled the “ assured,” and in which the -company agreed “ with the said assured ” to pay the sum insured to the wife “ or assigns,” and which contained the further provision that in case “ the said assured should die before ” her husband “ the amount of this insurance ” should be payable to their children. It appeared that the policy was in fact secured and the premiums paid by the husband. The, wife, husband and children all died in a common disaster, and it was held that the representatives of the husband were entitled to the insurance. It is. true that a doubt was expressed as to what would have been the construction of the contract in case it had' been shown that the children survived both parents. But it seems to us that the case for the representatives of the children, their survivorship being shown, would have been even stronger than was the case of the representatives of the husband. That case was probably overruled in Millard v. Brayton (177 Mass. 533), but upon the point that the contract was to be ■ construed as having been made with the wife.
Our attention is called to two conflicting decisions of other juris[482]*482dictions, which are exactly in point upon the.construction of the contract which we have adopted, viz., Hildenbrandt v. Ames (27 Tex. Civ. App. 377; 66 S. W. Rep. 128) and United States Casualty Co. v. Kacer (169 Mo. 301). The former supports our view.. In the latter the indemnity was made payable to the insured’s “ daughter, if surviving, if not, to the legal.representatives.of the insured; ” and it was held that the daughter took a vested interest subject to being divested by the happening of a condition subsequent, i, e.,. her prior death, and that' the burden was, therefore, upon the representatives of the insured to prove the la'tter’s survivorship..
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Miller, J. :
This is an action by the administrator of Julia Dunn, deceased, on a policy of accident insurance issued by the defendant to the deceased. The policy provided: “ 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 assured’s sister, Mary Hagenbucher, was named as the beneficiary in the stub. Both the assured and the said beneficiary perished‘in what is known as the “ Slocum disaster,” the accidental burning of the steamboat General Slocum, and survivorship was unaseertainable.
In the case of the death of two or more persons in a common disaster, there is no presumption either of survivorship or simultaneous death. (Newell v. Nichols, 75 N. Y. 78.) Before attempting to apply that rule, however, it is necessary . to construe the contract. Although the language of the clause in question was in fact the language of the defendant, as it was a part of its printed form of contract, we think it is to be construed as the language of the assured. That particular form of policy was accepted by the assured, who thereby adopted as her own "the language of the clause providing for the disposition of the money to become due under it. The assured alone was interested in that question*.
It is not easy to perceive why a different rule of construction should be applied to the clause of a life insurance policy providing . for the disposition of the money to become due under it from that applicable to a testamentary disposition, where both have the same, object, i. e., provision for those who are the natural objects of the [480]*480assured’s or the testator’s bounty. The mere fact that one instrument is a will and the other a contract /appears to us to be of little consequence. ' In the one ease the intention of the testator, in the other the intention of the insured is; paramount. The insurer has no interest in the matter, except tjo have the provisions definite enough for its protection. . ■. ■
It is' obvious that the policy im question'was not taken out for the benefit of the personal representatives of the.berieficiary named. They were not in the mind,eitj^r of the insured or of the-insurer. Upon its face the policy was procured for the benefit, first, of the assured’s sister,, second, of the assurpd’s estate or next of kin. The indemnity was made payable to the sister, or in the event of her prior death, to the legal representatives of the assured, Phraseology is important only to determine the intention, which in this case was, that the indemnity should be paid to the sister if living, otherwise to the legal representatives of the assured. And: that pmqaose could not have been made more manifest if that language had been employed. The survivorship of the sister, then, was a condition of her taking, and it begs the question to say that she took a vested- interest subject to being divested by her prior death. No doubt the law is that in the absence of a reservation of the right to change a beneficiary that may not be done by the assured. But the cases on that head have no application whatever to the question now being considered^ Here the beneficiary nariied was not to take at all events, but only in case she survived the assured. And the case is, therefore, in principle precisely like the cases of fraternal or mutual benefit insurance, in- which the right to change the beneficiary is expressly reserved, and in which it has been uniformly held, as is conceded by the respondent, in this and other jurisdictions, that those claiming under the beneficiary named must prove survivorship. Southwell v. Gray (35 Misc. Rep. 740) is a well-considered case of the class referred to. In that class of cases the. beneficiary named takes if no change is made. In this case the beneficiary first named was to take if living.
If the parties to this contract of insurance intended what seems to us to be manifest, i. e., that the indemnity should be paid to the sister if living, and if riot, to the legal representatives of the-assured, ' it would seem to follow, as of course, that the fact of survivorship [481]*481being unascertainable, the indemnity would go to the representatives of the assured within the principle of Newell v. Nichols (supra) and Young Women’s Christian Home v. French (187 U. S. 401), not upon any presumption, either of survivorship or of simultaneous death, but because the fact being unascertainable, those claiming through the survivorship of the sister could not establish it.
In St. John v. Andrews Institute (191 N. Y. 254, 275) Chase, J., speaking for the court, said: “ It has frequently been held in contracts relating to insurance and other matters where a certain result is to follow in case of one beneficiary dying before the insured or promisor, that in case • of a death of the insured or promisor and the beneficiary at the same time that the result will follow and that dying at the same time is equivalent to dying before.” While that statement, as applied to insurance contracts, is dictum, it is supported by the cases cited by Judge Chase, including Southwell v. Gray (supra) and Fuller v. Linzee (135 Mass. 468), upon which we particularly rely. In the latter case a policy of life insurance- was issued upon the life of a husband, which recited the payment of premiums by the wife who was styled the “ assured,” and in which the -company agreed “ with the said assured ” to pay the sum insured to the wife “ or assigns,” and which contained the further provision that in case “ the said assured should die before ” her husband “ the amount of this insurance ” should be payable to their children. It appeared that the policy was in fact secured and the premiums paid by the husband. The, wife, husband and children all died in a common disaster, and it was held that the representatives of the husband were entitled to the insurance. It is. true that a doubt was expressed as to what would have been the construction of the contract in case it had' been shown that the children survived both parents. But it seems to us that the case for the representatives of the children, their survivorship being shown, would have been even stronger than was the case of the representatives of the husband. That case was probably overruled in Millard v. Brayton (177 Mass. 533), but upon the point that the contract was to be ■ construed as having been made with the wife.
Our attention is called to two conflicting decisions of other juris[482]*482dictions, which are exactly in point upon the.construction of the contract which we have adopted, viz., Hildenbrandt v. Ames (27 Tex. Civ. App. 377; 66 S. W. Rep. 128) and United States Casualty Co. v. Kacer (169 Mo. 301). The former supports our view.. In the latter the indemnity was made payable to the insured’s “ daughter, if surviving, if not, to the legal.representatives.of the insured; ” and it was held that the daughter took a vested interest subject to being divested by the happening of a condition subsequent, i, e.,. her prior death, and that' the burden was, therefore, upon the representatives of the insured to prove the la'tter’s survivorship.. We are unable, however, to follow the reasoning which led to the conclusion that under such a clause the beneficiary took a vested interest. By the terms of the' policy the beneficiary was to take only in cáse she survived the insured. We construe the policy in question to mean - the samé thing. In such a case the burden to prove survivorship of the beneficiary would rest upon those claiming under her, and the fact being unascei’tainable, indemnity should go; as the parties obviously intended, to- the representatives of the assured, who 'take under the policy, not under a survivorship.
The policy insured against injuries sustained while the assured was “ actually riding as a passenger in a place regularly provided for the transportation of passengers, within a surface or elevated railroad car, steamboat or other public conveyance provided by a common carrier for passenger service only.” At the time of the disaster the General Sloeum was chartered by a church society for the day. The steamboat company received a lump sum for the use of the boat and for furnishing fuel and managing and manning the boat by captain, officers and crew. It is claimed by the respondent that the assured was not a passenger on a steamboat provided by a common carrier for the transportation of passengers only. We adopt what Mr. Justice Whitney said in the court below on this subject, viz.: “The steamboat company is a.common carrier. True this steamboat was specially chartered by an excursion party; but it was regularly provided for the transportation of passengers. It was not a freight boat and it was regularly in the business of taking similar parties.to either of two-specified pleasure resorts.” (67 Misc. Rep. 109, 113.)
The order of the Appellate Term and the judgment of the City [483]*483Court should be reversed and a new trial granted, with costs to the appellant to abide the event. . ,
Ingkaham, P. J., Clakke and Soott, JJ., concurred; Laughlin, J., dissented. . ' •