delivered the opinion of the Court:

A question of fact only is presented. The burden was on Higgins. There are inconsistencies and improbabilities in his case. Shortly before instituting this suit, he wrote to the insurance agent through whose office the policy had been issuéd, that he had assigned it to Mrs. Helmbold for the purpose of securing the repayment of $10,000 loaned by her to him, and repeated the statement in his first bill of complaint. The record clearly shows she did not have $10,000 to loan at that time. Some seventeen months after her answer had come in, Higgins by leave of court filed an amended bill in which he said that he had assigned the policy to her for her protection, but did not reveal in just what way it would operate to that effect. He further said that, after she received money from an insurance policy on the life of her husband, she loaned him various sums from time to time, and that in October, 1903, there was an arrangement made between him and her by which the policy (which, as we have seen, he had assigned to her in the April preceding) should be continued as security for the moneys loaned. He says that he did not purchase her brokerage business or agree to pay her anything for it, because it was practically valueless, and that the payment of $250 a month was in the nature of a gratuity. But, six years after he had commenced making the payments, he wrote to her— they having had a dispiite about some business matters — as *53follows: “Tour brokerage checks will be mailed you monthly as has been the custom. This is your own, the fulfilment of an obligation to you, and is not a gratuity from me. Please do not think so. It belongs to you as the result of Charlie’s [your husband’s] business and is yours.” Mrs. llelmbold’s husband had been sick for quite a period before his death, during which time she conducted his business and after her husband’s death she continued it for some months. The cashier of the bank where she kept her account testified that he “rather marveled at Mrs. Ilelmbold’s success at the business.” She said that the average net receipts were “never less than $400 a month, and as high as $800 and sometimes moreand that she did not want to give up the business, but desired to keep it for her children. Nevertheless, Higgins, an old friend of the llelmbold family, persuaded her to do so, saying that in view of certain business conditions, which he mentioned, it would be wiser for her to accept $250 a month as a certainty than to continue the business. She yielded to his advice, according to her story, and transferred to him the business upon the conditions named, and he turned it over, as we have seen, to another firm and put in his son as a silent partner.

We think that, according to the preponderance of the evidence, Mrs. Helmbold’s theory is correct. The record establishes that at the time the business was transferred to Higgins it was prosperous and easily worth what Mrs. Helmbold says he agreed to pay for it. Unless the policy of insurance was given to secure the amount of the purchase price, there was no reason for giving it. It could not serve her in any other way at that time. The assignment was general, — no limitation. Higgins was a business man of large experience. It is not likely that he would have assigned a policy absolutely if it was intended only as security for money borrowed. His statement made, as we have seen, six years after the assignment, that her brokerage checks would be mailed monthly as usual in fulfilment of an obligation, and not as a gratuity from him; and that they belonged to her and wTere hers as a result of her husband’s business, — is strongly corroborative of Mrs. Helmbold’s contention. Higgins ceased to send the checks and refused to *54continue payment of premiums on tbe policy. In sucb a plight it was Mrs. Helmbold’s right to take such course as she deemed best to serve the purpose for which the policy was assigned to her. Accordingly she cashed it and in doing so she was acting strictly within her rights under the agreement which she had with Higgins. We have carefully examined the decision in Lorillard v. Clyde, 142 N. Y. 456, 24 L.R.A. 113, 37 N. E. 489, the only case cited by the appellant, and find nothing in it which bears on this case.

The decree of the lower court is right, and it is affirmed at the cost of the appellant. Affirmed.