Fidelity Trust Co. v. Marshall

Interlocutory judgment and

order affirmed, with costs, with leave to the plaintiff to plead over upon the payment of the costs of the demurrer and of this appeal. Held, that the decision of the questions involved in this case is controlled by the cases of U. S. Trust Co. v. Mutual Benefit Life Ins. Co., 115 N. Y. 152, 21 N. E. 1025, and Walsh v. Mutual Life Insurance Co., 133 N. Y. 408, 31 N. E. 228, 28 Am. St. Rep. 651.

McLENNAN, ,P. J., dissents, upon the authority of Amberg v. Manhattan Life Insurance Co., 171 N. Y. 314, 63 N. E. 1111, and also upon the ground that it was not the intention of the parties to the contract of insurance that any part of the insurance moneys should be paid to the representatives or assigns of any child of the insured who might die without issue before the death of the insured.