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implanted in the mind as to withstand such evidence and argument as would convince reasonable persons of its falsity. Was Owen Smith the subject of such a delusion? It is beyond question that he believed that the contestant was not his child, and that such belief was without foundation in fact. But was this belief the creature of his imagination? I cannot but believe from the evi. dence that “the stories” which were in circulation had much to do with this belief. The gossip of the neighborhood had lodged in his mind a poison, the venom of which, in his sober hours, he was able to restrain, but which, when reason was driven out by rum, exhibited itself in the charge of unchastity of his wife. It must be remembered that on the first occasion in which she says he men. tioned the matter to her he said he had heard that Henry was not his child. The continued repetition of this charge for years in drunkenness produced such an effect upon his mind that he came at last to believe it, and at length he reveals his convictions to his priest. Thus the element of a delusion, a belief existing without cause other than the imagination of the deluded, is wanting.

The other element of a delusion—that it must be belief maintained in opposition to evidence and argument that would convince the ordinary mind of its falsity—is also wanting. So far as the evidence in this case goes, it does not appear that the wife whose chastity was impugned, nor the good priest to whom he went for advice, made any attempt by argument or evidence to convince him of his error. It must be apparent that if Owen Smith heard the report that contestant was not his child, and that report was true, he labored under no delusion in regard to the matter. If the report was not true, it was still evidence upon which he could act, however unjust and mistaken his action might be, without rendering what he did the result of insanity. If no such report was heard by him, and he never believed his wife to have been untrue to him, then he can be accused of depravity, not of insanity. Upon all the evidence I cannot escape the conclusion that at the time of the execution of the instruments offered for probate Owen Smith was not the subject of a delusion in regard to the paternity of the contestant, and the instruments must, therefore, be admitted to probate.


A policy in a mutual benefit society provided that the society would “pay the sum of $5,000 from the mortuary fund, as hereinafter provided," and that all claims on the mortuary fund, arising between stated intervals of assessment, should he päid pro rata out of the next succeeding mortuary call, “but not to exceed the face of each certificate." Held, that there was no ambiguity, so as to rendor applicable the rule that a policy should be construed most strongly against the insurer, and thereby impose an absolute liability on the society for $5,000, but it was liable only for the pro rata part of the mortuary fund where it appeared that the reserve fund was not available.

Action by Charles N. Gyllenhammer against the Home Benefit Society of New York to recover $5,000 upon a certificate in the defendant society. After a verdict in favor of plaintiff for the face of the certificate, defendant moves, under stipulation, that its actual value may be established according to law.

J. Edward Swanstrom, for plaintiff.

Mooney & Shipman, (Charles Blandy, of counsel,) for defendant.

GIEGERICH, J. The principal question litigated on the trial of this cause was whether the plaintiff was entitled to recover at all. In case he was, it was stipulated between the parties that the jury might render a verdict for the face value of the policy, with interest, but that the real value of the same should be ascertained and fixed after the rendition of the verdict. The jury ren. dered a verdict in favor of the plaintiff for the full amount claimed, and the parties have since appeared before me upon the hearing had as to the value of the policy. The issue, as first tendered and accepted in the action, seems to have been lost sight of upon the present application. The pleadings deal with the amount in the mortuary fund which can be applied to the payment of this claim, and plaintiff alleges such amount collectible under the constitution and by-laws of the company, according to the terms of the contract, to be sufficient to cover his claim. The answer puts this in issue, and the proof thereunder, as adduced at the said hearing, subsequent to the trial, shows the amount collectible, according to the contract as read by the company, to be but $1,048.30. Therefore, at this stage of the action, an interpretation of the contract being called for, it is necessary to determine whether such contract is really to be taken as express, excluding all provisions therein contained which modify defendant's liability, or whether the amount shown to be collectible to the mortuary fund, under the issue raised by the pleadings, is the proper measure of the plaintiff's recovery.

The argument in support of the contention that the plaintiff is entitled to the full value of the policy proceeds upon the theory that the familiar principle of strict construction being given to a policy of insurance, as against the insurers, should be applied, and that the words which restrict the defendant's liability should be disregarded for ambiguity; citing Wadsworth v. Jewelers’ & Tradesmen's Co., 132 N. Y. 540, 29 N. E. Rep. 1104. The policy under consideration sets forth the company's obligation to pay "the sum of five thousand dollars from the mortuary fund of the society, and not otherwise, except from the reserve fund as hereinafter provided." The conditions of the contract immediately follow, and provide that all claims upon the mortuary fund, arising between the stated intervals of assessment, are to be paid pro rata out of the next succeeding mortuary call, “but not to exceed the face value of each certificate.” The company is conducted upon the theory of a mutual benefit association, and the liability of each

member for death claims is fixed by the terms of the policy. It is shown that the reserve fund is not available. The Wadsworth Case, above cited, deals with a policy which was certainly framed in an ambiguous manner. Another element was added to the body of that policy, in providing for the payment of claims, viz. the application of the avails of one assessment, should the mortuary fund be insufficient to meet the claim. The decision in that case merely holds that these two sources of payment were to be taken as conjunctive, and not alternative, that being the natural interpretation of the contract. The opinion then goes on to consider the company's constitution and by-laws, and construes an obscure clause, which might very readily be read in two ways, taking that reading more favorable to the plaintiff. There is no inference that the company could have been held to the face value of the policy, irrespective of the amount collectible under its provisions as naturally understood by the insured. La Manna v. Accident Co., , (Sup.) 10 N. Y. Supp. 221, dealt merely with a case where there was a lack of proof as to circumstances whereby the restrictive provisions would be operative, and held that a verdict for the full amount was properly rendered. The principle that words which restrict the insurer's liability are to be construed strongly against him, and are to be taken according to the natural understanding of the parties, is applied to cases where a technical use of terms, or an obscurely worded or hidden restriction, is invoked to absolve the insurer from his liability according to the fair terms of the contract. There is no authority for the proposition that an insurer cannot fairly contract to make the payment from a certain fund collected from certain specified sources; such payment to be in the full amount set forth, or pro rata with other claims, according to the condition of the fund. In the contract under consideration there is no ambiguity as to the above terms, and certainly a peculiar or technical knowledge is not requisite to a reasonable construction of the provisions therein set forth. It was merely necessary to read the whole instrument. A contract of insurance is interpreted by the same rules as other contracts, (May, Ins. $ 172,) and there is nothing in such an agreement more sacred or inviolable than there is in an agreement concerning any other subject-matter, (Id.) I conclude that there is nothing in the terms of this contract which would justify an interpretation prej. udicial to the defendant. Accordingly the value of the policy in suit is fixed at $1,048.30.


(Supreme Court, Special Term, Kings County. June, 1893.) INSURANCE-CHANGE OF BENEFICIARY-VESTED INTEREST.

Where a person became a member of a mutual benefit association under an agreement with the person designated in the certificate as bene. ficiary that the beneficiary should pay all the assessments, and they were so paid, the beneficiary acquired a vested interest in the certificate, and the meniber could not afterwards make another designation.

Action by Maynard against Angelina Vanderwerker to determine the right to a death benefit under a certificate issued to one Ray R. Smalley, who afterwards became plaintiff's wife, in the Knights and Ladies of Honor, a mutual benefit society. This certificate named defendant as beneficiary. After her marriage to plaintiff, Mrs. Maynard procured another certificate to be issued, in favor of plaintiff. Judgment for defendant.

Sidney Williams and E. B. Barnum, for plaintiff.
Thomas E. Pearsall and Isaac M. Kapper, for defendant.

BARTLETT, J. The proof on the trial utterly failed to establish the defense that the request of Ray R. Maynard for the issue of a new certificate to her husband was obtained by fraud or undue influence, or that Mrs. Maynard was at the time mentally incapable of executing said paper. i expressed an opinion to this effect at the close of the hearing, but reserved my decision in order to consider the evidence offered in support of the other defense, which was, in effect, that, by reason of an agreement with her aunt in reference to her insurance, Mrs. Maynard had precluded herself from making any change in the beneficiary which should deprive Mrs. Vanderwerker of the right to collect the amount specified in the certificate whenever that amount became payable. A careful consideration of that evidence has led me to the conclusion that this defense must be regarded as made out. Mrs. Margaret Taws, a disinterested witness, testified to admissions and declarations made by Miss Smalley before her marriage to the plaintiff, and therefore before the change of beneficiary. No objections were made to this testimony, and, even if there had been, I think it was receivable against the plaintiff, under the doctrine of Steinhausen v. Association, 59 Hun, 336, 13 N. Y. Supp. 36, and the cases there cited. The plaintiff was not an assignee of the certificate, for value. During the lifetime of his wife “the designation was in the nature of an inchoate or unexecuted gift, revocable at any moment by the donor.” Smith v. Society, (N. Y. App.) 25 N. E. Rep. 197. That is, assuming that the donor has not previously made a contract by which a vested interest had passed to her aunt. According to the testimony of Mrs. Taws, she had a conversation with Miss Smalley not long before her marriage to Mr. Maynard, in which Miss Smalley said she was insured for her aunt; that she would never change her policy; that she got insured for the benefit of her aunt, who had brought her up, and been a mother to her; and that whether she lived or died, married or single, the policy belonged to her aunt. Speaking still further of Mrs. Vanderwerker, Miss Smalley added, “She has also paid the assessments; so it don't belong to me, anyway.” On cross-examination the same witness said that Miss Smalley had told her all these things twice, and always said that the policy was not hers, but her aunt's. In addition to these admissions and declarations, we have the direct and positive testimony of Mr. Vanderwerker, showing that it was the original intention of the niece to be insured for the benefit of her aunt, who should pay the assessments, and that the inoney for some of the assessments, at all events, was furnished by the defendant. From the evidence of Mr. Vanderwerker alone, it would be impossible to find as a fact that his wife furnished the money to pay all the assessments, or, indeed, to determine how many were paid with money which she supplied; but, in view of the declarations of the niece to Mrs. Taws, there is no difficulty in reaching the conclusion that, up to the time when those declarations were made, the money for the assessments, no matter who performed the physical act of paying it to the society, proceeded from the purse of the defendant. If this is so, it seems to me clear that Mrs. Vanderwerker, by virtue of the agreement with her niece before any certificate was taken out, and by reason of having furnished the money to pay the assessments thereon, had acquired a vested interest in the certificate, of which her niece was powerless to deprive her by procuring a new certificate to be issued, containing her husband's name as beneficiary. As was said by the court of appeals in the case of Smith v. Society, supra, the statute of 1883, permitting a change in the payee or beneficiary of the insurance, does not prevent a contract between the member and the beneficiary, by virtue of which a vested interest does pass to the latter. I think such a vested interest did pass to Mrs. Vanderwerker before the new certificate was obtained, substituting Mr. Maynard's name for hers, and consequently the attempt on the part of the insured to transfer the right to collect the insurance money by means of such new certificate must be deemed ineffectual in law.

It is suggested in behalf of the plaintiff that the defense that Mrs. Vanderwerker had thus acquired a vested interest in the insurance certificate was a mere afterthought, inasinuch as it was not set out in the original answer. The facts, however, which lead to the legal conclusion of a vested beneficial ownership, appear to have been set forth in an affidavit filed in an early stage of the action, and are also mentioned in the letter from Mrs. Vanderwerker to Mr. Harvey. The statement in the postscript to that letter to the effect that the certificate was never called for by Mr. or Mrs. Maynard, and could have been had at any time if Mrs. Maynard so desired, is not necessarily inconsistent with the defense now under consideration. It was evidently inserted simply to controvert the idea that the certificate had ever been lost. The testimony of Mr. Livingston that on one occasion, when Miss Smalley obtained money to pay an assessment from Mrs. Vanderwerker, the latter said she would lend it, but her niece must be sure to pay it back, certainly tends to prove a loan at that time; but it may fairly be inferred from the niece's declarations to Mrs. Taws, which have already been discussed, that if this payment was deemed a loan it was because Mrs. Vanderwerker had already given Miss Smalley a sufficient amount with which to pay the assessment, which her niece had applied to some other purpose. The statute closes the mouth of the defendant as to any personal transactions between

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