Terwilliger v. Industrial Ben. Ass'n , 90 N.Y. Sup. Ct. 320 ( 1894 )

HAIGHT, J.

This action was brought to recover the amount due upon two certificates of membership issued by the defendant to Michael Daly, in his lifetime, in which the plaintiff was named as the beneficiary. The answer, among other things, alleged that the application for said certificates made by Daly contained false-answers with reference to his bodily condition and health, and as-to his age. The only question which we here feel called upon to consider is that pertaining to his age. In his first application for membership, made in March, 1891, he stated the date of his birth to have been January 12, 1826, and his age at his next birthday as-65. In his second application, made on the 6th day of January, 1892, he gave the date of his birth as February 8, 1827, and his agent his next birthday as 65. He died December 5, 1892. Upon the trial, Thomas J. Bell was sworn as a witness for the defendant,, and testified that he knew Daly, who applied to him to make-out an application for his admission to the soldiers’ home in Bath. A paper was shown to witness, which he identified as the one-made out by him on the 18th day of May, 1881; that witness put the questions to Daly which were set down in the paper; that he answered them, and that the witness set down the answers-correctly, as he gave them; that, after the paper had been completed, Daly signed the same by making his mark, and swore to-the truth of the paper, before witness. The paper was then offered in evidence. It was objected to by the plaintiff as too-remote, and as immaterial and incompetent. The counsel for the defendant then offered to show that on the 18th day of May, 1881,' Daly made application for admission to the soldiers’ home, under-oath, in which he stated his age at that time to be 67 years. The evidence was excluded, and an exception was taken by the defendant. We think this evidence was competent. The declarations of a testator or intestate, binding him, or impairing his estate, may be given in evidence against his personal representatives in all cases where they would have been competent against himself, if he had been living and a party to the action. Hurlbut v. Hurlbut,128 N. Y. 420, 28 N. E. 651; Steinhausen v. Association, 59 Hun, 336, 13 N. Y. Supp. 36.

It is contended on behalf of the respondent that this rule has-no application, for the reason that her interest in the certificates1 had become vested, and that it could not be impeached by the" declarations of the deceased. The evidence upon this subject is very meager. The plaintiff, in her testimony, tells of having a conversation with an agent of the defendant, in the presence of her father, in reference to the second application for membership ;- that the agent had advised her father to take out another policy, and that her father spoke to her and said, “If I would pay the-premium on the second, as I did on the first, he would allow me to have another policy, and I agreed to it.” She further testified that she paid all the premiums on each of the certificates, and had possession of both, from the time they were delivered to her. There-may be some question' as to whether this evidence .is sufficient to-establish a vested interest in her; but, assuming that it is, we are still inclined to the opinion that the evidence rejected was competent. The plaintiff herself, in sustaining the correctness of the' statements of her father in the application for membership, resorted to his declarations as to his age. She stated that he was born in Ireland, and that there was no record of his birth that she had been able to find; that she had corresponded with the parish priest where he had lived, and was unable to find any register of the date of his birth; that she knew of his age by repute, and that he was born on the 12th of January, 1826. She then called her brother William Daly, and he testified that his father was bom an 1826, as near as he could recollect from what' his father had told him. If the declarations of the deceased were competent as evidence for the plaintiff, we fail to see why they were not also competent for the defendant. The paper in which it is claimed the deceased had given his age, we think, may be regarded as an official document. It appears to have been under oath, and was an application for his admission to a public institution. As we have seen, there was no record of his birth known to his family. Greenleaf, in his work ■on Evidence (volume 1, § 104), says, in reference to birth, death, and marriage, that:

“The term ‘pedigree,’ however, embraces not only descent and relationship, but also facts of birth, marriage, and death, and the time when these events •happened. The facts, therefore, may be proved in the manner above mentioned in all cases where they occur incidentally, and in relation to pedigree. Thus, an entry by a deceased parent or other relative, made in a Bible, family missal, or any other book, or in any document or paper, stating the fact :and date of the birth, marriage, or death of a child or other relative, is regarded as a declaration of such parent or relative in the matter of pedigree. So, also, the correspondence of deceased members of the family, recitals in ■family deeds, such as marriage settlements, descriptions in wills and other solemn acts, are original evidence in all cases where the oral declarations of the parties are admissible.”

See, also, sections 103 and 105.

In Hurst v. Jones, 1 Wall. Jr. Append, iii., Fed. Cas. No. 6,934, it was held that the contents of affidavits made ex parte several jears before, ■ to prove pedigree, are admissible. See, also, Swift v. Insurance Co., 63 N. Y. 186-193.

The plaintiff’s interest did not vest until the delivery of the ■certificates to her, and the payment by her of the premiums due thereon. She had no interest at the time the applications were signed by her father, or at the time the certificates were issued ¡by the association, and its rights could not be changed by the subsequent vesting of her interest.

As to the declarations thereafter made by her father, the rule may be different. Rawls v. Insurance Co., 27 N. Y. 282-290; Fitch v. Insurance Co., 59 N. Y. 557-573; Smith v. Society, 123 N. Y. 85-88, 25 N. E. 197; Grossman v. Supreme Lodge (Sup.) 6 N. Y. Supp. 821. Where the prior statements have reference to health, they should not be remote. A person afflicted with(disease may recover, and his prior statements in reference thereto pass from his mind. But we think declarations in reference to age are different. A person can never •change the date of his birth. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

DWIGHT, P. J., and LEWIS, J., concur. BRADLEY, J., not voting.