Washington Life Insurance v. Lawrence

53 Barb. 307, 1869 N.Y. App. Div. LEXIS 22

• Court: New York Supreme Court
• Decided: January 4, 1869
• Status: Published

Opinion

By the Court, G. G. Barnard, J.

I am unable to concur with the learned judge, who tried this action, in his finding that on procuring the policy in question, Daniel H. Lawrence, Jr. gave and delivered the same to his mother as a gift • and provision for her use and support in ease of his death. Tl?e defendant, Mrs. Lawrence, does not claim such a title in her pleadings, but claims solely under the assignment from Daniel H. Lawrence, the uncle of the insured. The only evidence of the gift to the mother is her own testimony, and is simply that this policy was delivered to her by her son, the insured, within a few days after it was taken out, as a policy made for her benefit. That she kept it about a year and delivered it to her son to be placed for safe keeping in the safe in his uncle’s store. The insured was childless and unmarried, and had no father.

It is more reasonable to infer from his testimony that the policy was delivered to his mother as the person who would recover the money upon it after his death, under the statute' of distributions, than upon such uneértain language to find a present transfer of the title to the policy itself. In this view of the case, it is not necessary to examine the force of the objection to the admissibility of her testimony. It fails to prove the fact which it was admitted to prove, and is therefore harmless. Eo other error is alleged to have happened upon the trial, in admitting or rejecting evidence, and the ease must be determined irre- ' epective of the gift to the mother, so found at special term. The facts are few and mainly undisputed. The one decisive fact is in dispute. In the year 1861, Daniel H. Lawrence, Jr. effected the policy with the plaintiff for $5000. In Eovember, 1862, he was under a promise with the defendant Maggie Richmond to marry her. On the 28th of Eovember, 1862, he assigned the policy to her, of which notice was given soon thereafter' to the plaintiffs’ company, and the policy was marked as assigned to her, upon the hooks of the company. In the latter part of 1863 the insured had not the money to continue the quarterly payments of premium, and his uncle, Daniel H. Lawrence, pro-promised to keep the policy paid up if it was for the benefit of his mother and sisters; otherwise not. That the insured promised to send his uncle the policy immediately. That soon thereafter he applied to the defendant Richmond, who had the policy, to send it to him as he had heard it had expired. She did so, and upon its receipt by Daniel H. Lawrence, Jr. he sent it to his uncle. In April, 1864, the insured made an attempt to have the policy put in his mother’s name on the insurance company’s books, and was told that Miss Richmond must re-assign it to him or to his mother. On the 28th of May, 1864, she re-assigned the same to him. The disputed question is, whether this assignment was procured by fraud or deceit. The court has not found that any fraud was practiced to procure the same. I think it was justified in so finding. Two witnesses are called, both of whom testify that the insured said to Miss Richmond that the policy had expired, and asked her for an assignment in order to renew it. One of these witnesses is the young lady’s mother. She testifies in another portion of her testimony that her daughter gave him her signature without asking why he wished it: she said she had confidence in him and gave him her signature.” If this was true there was no fraud or deception. The judge has so found. It is not the province of an appellate court to review the decision, upon appeal, where the evidence is conflicting. The defendant Lawrence, makes a title to the policy, beyond dispute, if the assignment from Miss Richmond was voluntary and not obtained by fraud. The judgment should be affirmed, with costs.

[New York General Term, January 4, 1869.

Clerke, Sutherland and George G. Barnard, Justices.]