Citations
- 56 A.D. 1
Full opinion text
O’Brien, J.:
On the 18th of May, 1888, J. Charles Burton assigned a policy of insurance of the Equitable Society which was payable in twenty years or upon his death, to F. A. Wittrock, who, on the same- day, transferred his rights therein by the following assignment:
“ For one dollar to me in hand paid and for other valuable considerations (the receipt of which is hereby acknowledged) I hereby assign, transfer and set over all my right, title and interest in policy No. 387633 on the life of J. Charles Burton issued by The Equitable Life Assurance Society of the United. States, and all money which may be payable under the same to Lizzie J. Burton, wife of J. Charles Burton, if living; if liot, then to J. Charles Burton, of New York City ; and for the consideration above expressed I do also for myself, my executors an.d administrators, guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, her executors, administrators and assigns; and their title to the said policy will forever warrant and defend.
•'■■“In witness whereof, I have hereunto set my hand and seal this eighteenth day of -May, 1888.
“ F. H. WITTROCK. [seal.]
“ In presence of Chas. Bauer.”
Lizzie J. Burton died intestate on the 19th of December, 1891, .leaving two children. J. Charles Burton died on the 14th of September, 1899, leaving a will in which he made the defendant, who-was his second wife, executrix and residuary legatee of all his property, including life insurance policies.
The single question before us is whether the words “ if living,” .in the assignment-of the policy of insurance made by Wittrock to- : Lizzie J. Burton, had reference to the time when the assignment, was'made or to the time when the policy became payable, namely, in twenty years from the date of issue or at the death of J. Charles- ¡ Burton. ' -The evident purpose of the assignment from Burton to Wittrock'was -to give all interest in the policy to his wife ; and we-may, therefore, consider the question presented as though the assignment was made directly from the husband to the wife.
We must legally presume from the fact that j". Charles Burton and Lizzie. J. Burton were man and wife, and that they were living-together When the assignment was made. Had it appeared that the 'husband, had no' knowledge of the whereabouts of his wife at tlm time of the assignment, there might be a question as to whether, by the words used, it was not intended to make ■ an assignment of all interest in the policy to Mrs. Burton “ if living; ” if not living, then to Mr. Burton. In the absence of any such evidence, however, we must presume, as stated, that Mr. and Mrs. Burton were living together, from which the inference naturally flows that the words •