The opinion
*287 PRETTYMAN, Associate Justice
(dissenting).
I disagree with my brethren, and because the case is important and of first impression, I think I should indicate the reasons for my view. I do not think that the provisions of the statute are in conflict with those of the policies.
The genesis of this statute was in the controversy over the proceeds of life insurance policies in cases of bankruptcy. The Bankruptcy Act provides for the allowance of such exemptions as are prescribed by state laws, 1 and also provides, subject to those general exemptions, that when a bankrupt has an insurance policy which has a cash-surrender value payable to himself, his estate, or personal representatives, the trustee is entitled to that sum. 2 The Supreme Court held that where a New York bankrupt reserved the right to change the beneficiary, the cash value of the policy was not exempt under the then New York statute. 3 The New York legislature enacted Section 55-a of the Insurance Law (c. 468, § 1, Laws of 1927) to meet that situation. That section was a composite embodying the most desirable features of the Massachusetts, Pennsylvania, and Washington statutes. 4 Its sponsors represented it as an exemption statute designed for the protection of beneficiaries, primarily the family, from creditors of the insured; and one of the draftsmen has said that the Referee’s opinion in In the Matter of Morris Messinger admirably sets forth the meaning of the statute. 5 The Referee there said that “The bulk of the statute undoubtedly follows that of Massachusetts”, and held it to be an exemption statute. 6
The District statute 7 was copied frotn that section of the New York law. 8 At the hearings before the Subcommittee of the Committe on the District of Columbia of the House of Representatives, the author of the bill was presented as William Bro-smith, Chairman of the Committee on Insurance Law of the American Bar Association, and the bill as a draft prepared over a period of years, beginning with the appointment of the Committee by the then President of the Association, Mr. Charles Evans Hughes. The chapter in which this section appears was presented as being from the standard code provisions of the Association of Life Insurance Presidents and the American Life Convention. 9 In presenting the bill, both the House and Senate Committees told the Congress, “The courts have interpreted the section we have selected to exempt from bankruptcy proceedings the cash-surrender value of a policy.” 10
Many authorities in the fields of insurance and bankruptcy have commented on the statute. 11 State and federal courts have discussed it. 12 But nowhere, so far as we *288 have been able to find, has ány authority or any court suggested that under this statute, either in Massachusetts or in New York, the proceeds of a life insurance policy go to the representatives of a beneficiary who predeceases the insured. Every reference we have found is to the statute as an exemption statute for the protection of a living beneficiary against the creditors of the insured.
The lower courts of New York have repeatedly considered contests between the executors of beneficiaries who predeceased the insured and the executors of the insured. In no case which we have found did any of those courts apply this section of the Now York law in determining the disposition of proceeds; instead, those courts followed the terms of the policies. 13 In fact, in the one case in which the applicability of the statute was urged, the Surrogate denied the contention, and no appeal was taken from his ruling. 14 The Supreme Judicial Court of Massachusetts held, in the presence of a like statute, that “If under a life insurance policy taken out by the insured a beneficiary’s interest is terminated by his death before the death of the insured and no other beneficiary is designated to take that interest, it reverts as a lapsed trust to the legal representative of the insured.” 15
The majority opinion relies heavily on a series of Kentucky cases interpreting a similar Kentucky statute. The more recent decision from the same jurisdiction distinguishes the prior cases and, in my view, places a different interpretation on the Kentucky statute. 16 The case was one of death in a common disaster. The husband had several policies of life insurance on his own life, in all of which his wife was named as beneficiary. The policies were phrased in language strikingly similar to the policy in this case. The administrator of the wife’s estate sought the proceeds of the policies, and the administrator of the husband’s estate contested. The Court of Appeals of Kentucky specifically distinguished! 17 the cases of Hamblin v. Hamblin and O’Bryan v. England, cited by the court in the present case, and held that since the wife’s administrator had failed to establish her survivor-ship, the proceeds of the policies were properly payable to the husband’s estate. 18 The court said that where a policy contains a clause providing for payment to the estate of the insured in case of the prior death of the named beneficiary, recovery of the proceeds of the policy by the named beneficiary may be defeated by either of two contingencies: (1) designation of another beneficiary by the insured, or (2) failure of the named beneficiary to survive the insured. 19 Thus, the court held that survivorship was a condition precedent to the beneficiary’s taking the proceeds of the policy.
It is my view, based upon the history of the statute both before and after its enactment here and elsewhere, that the true meaning of the pertinent part of the statute is that the lawful beneficiary, other than the insured or his estate, is entitled to the proceeds of a life insurance policy against the creditors of the insured, whether or not the right to change the beneficiary is reserved, and whether or not the policy provides for payment to the estate of the insured if the beneficiary predeceases him. The statute protects a living beneficiary, not the heirs and creditors of a deceased one. Specifically, it is my view that the word “his” in the phrase “or his executors or administrators” refers to the insured and not to the beneficiary. The expression *289 “lawful beneficiary, other than the insured, his executors or administrators” seems to be a common one in the insurance field.
I must admit that the language of the statute is confusing because of the interposition of the phrase “or the person so effecting such insurance,” but I do not think that this awkward interposition destroys the meaning.
It seems to me that the decision of the court in this case (1) will nullify the provision in innumerable contracts of insurance that if a named beneficiary predeceases the insured, the proceeds shall be payable to the estate of the insured, (2) will extend the protection of the statute to a class of-persons (heirs, legal representatives, legatees and creditors of a beneficiary) wholly uncontemplated by the statute, and (3) will change the long-standing rule, in this jurisdiction that where a beneficiary predeceases the insured, the proceeds belong to the estate of the insured. 20 I do not think that a mere ambiguity in a statute should be so resolved. The language of the contracts is clear. The contractual provision is nowhere frowned upon as adverse to public policy, to justice to parties involved, or to regulatory convenience. Clear language is necessary to accomplish so drastic a nullification of contracts so widely made, and so drastic a change in well-established rules of insurance law. Especially do I think that such a result ought not to be reached for the first time so many years after the enactment of a statute, in this case 1927 in New York. If the New York law or the 1934 District of Columbia law had accomplished such decisive departures from accepted rules, it seems to me that someone would have said so somewhere — before Congress, in Congress, in a published article, notably the voluminous current literature on insurance, or in a court opinion, of which there are many dealing with the subject matter.
I think that the District Court was right and that its judgment should be affirmed.
30 Stat. 548 , 11 U.S.O.A. § 24.
30 Stat. 565 , 11 U.S.O.A. § 110.
Cohen v. Samuels, 1917, 245 U.S. 50 , 38 S.Ct. 30 , 62 L.Ed. 143 .
Hirst, History of New York Life Insurance Law of 1927, 4 Am.Bankr.Rev. 328 (1928).
In the Matter of Morris Messinger will be found at 4 Am.Bankr.Rev. 258 (1928). The statement of the draftsman (Mr. Hirst) is in the same volume at page 328.
4 Am.Bankr.Rev. 258, 265 (1928).
D.C.Code (1940) § 35 — 716.
H.R.Rep.No.1526, 73d Cong., 2d Sess. (1934); Sen.Rep.No.1420, 73d Cong., 2d Sess. (1934).
Hearings before the Subcommittee on Insurance and Banking of the Committee on the District of Columbia on H.R.3941, 71st Cong., 2d Sess. (1930) 26, 45, 151, 264.
H.R.Rep.No.1526 and Sen.Rep.No. 1420, supra note 8.
Strouse and Blum, Rights of Creditors and Beneficiaries in Life Insurance Policies in New York, 4 Am.Bankr.Rev. 228 (1928); Isaac, When Life Policies are Exempt, id. at 304; Gardner, Tbe Proposed Revision of the New York State Insurance Law, 4 Ins.Gounsel J. 50 (Oct. 1937); Hirst, Exemptions under Sections 55-a, 55-b and 55-e of the Insurance Law, 96 N.Y.L.J. 1020 (Oct. 6, 1936); 6 Assoc, of Life Ins. Counsel Proceedings 152-163 (1934-1936); Cohen, Execution Process and Life Insurance, 39 Col.L.Rev. 139, 146 (1939).
In re Messinger, 2 Cir., 1928, 29 F.2d 158 , 68 A.L.R. 1205 ; Schwartz v. Holzman, 2 Cir., 1934, 69 F.2d 814 ; In re Firestone, D.C.S.D.N.Y., 1932, 2 F.Supp. 96 ; In re Weisman, D.C.S.D.,N.Y., 1934, 10 F.Supp. 312 , the opinions in both the latter cases by Judge Patterson; Chatham Phenix Nat. Bank & Trust Co. v. Crosney, 1929, 251 N.Y. 189 , 167 N.E. 217 ; Addiss v. Selig, 1933, 147 Misc. 731 , 264 N.Y.S. 816, 1933 , 240 App.Div. 829 , 266 N.Y.S. 1008 ; Stoudt v. Guaranty *288 Trust Co., 1934, 241 App.Div. 711 , 269 N.Y.S. 997 , 1933, 150 Misc. 675 , 271 N.Y.S. 409 .
In re Czarniak’s Estate, 1931, 140 Misc. 754 , 251 N.Y.S. 536 ; In re Burza’s Estate, 1935, 155 Misc. 44 , 279 N.Y.S. 90 ; Morgan v. Sackett, 1939, 172 Misc. 855 , 16 N.Y.S.26 583; In re Valverde’s Estate, 1933, 148 Misc. 49, 347 , 265 N. Y.S. 484; Mattern v. Gas Companies’ Employees’ Mut. Aid Soc., 1931, 141 Misc. 510 , 253 N.Y.S. 124 .
In re Czarniak’s Estate, supra note 13. The Surrogate’s reference to retro-activity had no part in the decision upon the point, as the insured and the beneficiary both died after the statute had been passed.
Kruger v. John Hancock Mut. Life Ins. Co., 1937, 298 Mass. 124 , 10 N.E,2d 97, 100, 112 A.L.R. 725 .
Colovos’ Adm’r v. Gouvas, 1937, 269 Ky. 752 , 108 S.W.2d 820 , 113 A.L.R. 871 .
Id. 108 S.W.2d at 824 .
Ibid.
Id. 108 S.W.2d at 825 .
Washington Endowment Association v. Wood, 1885, 4 Mackey 19 , 54 Am.Rep. 251 .