1919.] Opinion, per CARDOZO, J. [225 N. Y.] estate to his heir at law by will, with other limitations, or in any other shape than the course of descents would direct, such heir shall take by purchase" (2 Bl. Comm. 241). But the words heirs and next of kin are often employed as interchangeable. In this instance, the two classes are in fact identical. Nothing in the surrounding circumstances suggests a purpose to vary the course of descent or distribution as it would be regulated by law. If that is so, the courts are not to be controlled by mere inaccuracies of expression (Lawton v. Corlies, 127 N. Y. 100, 106, 108; Montignani v. Blade, 145 N. Y. · 111, 122; Matter of James, 80 Hun, 371; Matter of Fidelity Trust & Guaranty Co., 57 App. Div. 532, 539; White v. Stanfield, 146 Mass. 424, 434; Kendall v. Gleason, 152 Mass. 457, 462). Such slips of speech might be significant if we were construing an admitted remainder. They do not turn into a remainder what would otherwise be a reversion. There is no adequate disclosure of a purpose in the mind of this grantor to vest his presumptive heirs with rights which it would be beyond his power to defeat. No one is heir to the living; and seldom do the living mean to forego the power of disposition during life by the direction that upon death there shall be a transfer to their heirs. This grant by its terms was subject to destruction at the will of the trustee. We think it was also subject to destruction, as against the heirs at law, at the will of the grantor. They had an expectancy, but no estate. The judgment should be affirmed with costs. HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, POUND and ANDREWs, JJ., concur. Judgment affirmed. [225 N.Y.] Statement of case. [Jan., ANNIE P. WARD, Appellant, v. NEW YORK LIFE InsurANCE COMPANY, Defendant, and WALTER K. WARD et al., Respondents. Evidence insurance (life) claim that insurance policy was assigned by husband to his wife by oral assignment testimony of person claiming insurance under such alleged assignment not barred under the statute (Code Civ. Pro. § 829) - when evidence to sustain claim under oral assignment not sufficient to show that claimant is entitled to insurance as against beneficiaries named in policy. 1. In applying the rule and test that the plaintiff must establish his claim by a fair preponderance of evidence, it very likely will and should occur that the triers of fact will more carefully and critically scrutinize evidence offered against a dead person's estate for the purpose of deciding whether it does furnish the necessary weight and preponderance, than would be done if the testimony was offered against one who was alive to contradict it, but the general rule as to weight and quality of evidence is no different in one case than in the other. (Mc Keon v. Van Slyck, 223 N. Y. 392, 397, approved; Rosseau v. Rouss, 180 N. Y. 116; Hamlin v. Stevens, 177 N. Y. 39; Wallace v. Wallace, 216 N. Y. 28, explained.) 2. When section 829 of the Code of Civil Procedure speaks of deriving title or interest from, through or under a deceased person it contemplates property or an interest which belonged to the deceased in his lifetime and the title to which has passed by assignment or otherwise through him to the party who is protected by the section. These authorities do not contemplate a case where a party claims property from a third person which never belonged to the deceased and which in fact did not come into existence until his death. 3. A person claiming money directly from an insurance company by virtue of a designation under a policy cannot be said to be claiming from, through or under" the insured in said policy even though the latter has made the designation. 66 4. Plaintiff claims an oral assignment of an insurance policy which was issued to her deceased husband upon his life payable to his personal representative or assigns. His sons were designated by him and recognized by the insurance company as beneficiaries under the policy. The wife claims the proceeds of the policy under an equitable parol assignment for value antedating the designation of the sons as 1919.] Points of counsel. [225 N. Y.] beneficiaries. The testimony relied upon by plaintiff is to the effect that the insured said he had assigned to her his life insurance or his life insurance policies, and she says that on the strength of these statements she from time to time loaned him various sums of money, reaching in the aggregate a considerable amount. The insured never executed any written assignment and never delivered to her or surrendered control over the policy. Held, that she failed as matter of law to produce evidence which would have permitted the court to find that an assignment had been made. Ward v. N. Y. L. Ins. Co., 175 App. Div. 961, affirmed. (Argued December 9, 1918; decided January 14, 1919.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 17, 1916, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. E. R. Shepard, Luther A. Wait, Sheridan P. Wait and Edgar T. Brackett for appellant. The policy in suit was duly assigned by the insured to the plaintiff in 1909 as collateral security for money and credit already loaned, and she thereby and thereupon took a vested interest in such policy good as against everyone but a prior assignee. (Cellery v. John Hancock Ins. Co., 57 App. Div. 227; Smith v. N. B. Society, 123 N. Y. 85; Sabin v. Phinney, 134 N. Y. 423; Shipman v. Protected Home Circle, 174 N. Y. 398; M. R. Ins. Co. v. Cleveland Mills, 82 Fed. Rep. 508; Slocum v. N. W. Ins. Co., 115 N. W. Rep. 769; Mc Neil v. Chinn, 101 S. W. Rep. 465; Baker v. Crosby, 33 N. Y. S. R. 757; McDonough v. Etna L. Ins. Co., 38 Misc. Rep. 628; Griffin v. P. Ins. Co., 43 App. Div. 499.) It was error for the court to strike out the testimony of the plaintiff under section 829 of the Code of Civil Procedure. (Lyon v. Whittaker, 77 Hun, 107; Abbott v. Doughan, 204 N. Y. 223; Cary v. [225 N. Y.] Opinion, per HISCOCK, Ch. J. [Jan., White, 59 N. Y. 336; Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Sisson, 36 N. Y. 327; Eddington v. Etna Life Ins. Co., 77 N. Y. 564; People v. Schuyler, 43 Hun, 88; 106 N. Y. 298; Bopple v. Supreme Tent, 18 App. Div. 488; Savage v. Modern Woodmen, 113 Pac. Rep. 802; Williams v. Campbell, 84 Kan. 46.) Andrew J. Nellis and Walter E. Ward for respondent. Had plaintiff appellant's testimony been retained and considered there was insufficient evidence to support a finding that the policy in suit was ever assigned to her. (L. W. P. Co. v. S. W. P. Co., 178 N. Y. 221; Rupp v. Blanchard, 34 Barb. 629; Thomas v. N. Y. & G. L. R. Co., 139 N. Y. 179; Fairbanks v. Sargent, 117 N. Y. 320; Donovan v. Middlebrook, 95 App. Div. 366; Holmes v. Bell, 139 App. Div. 462; Matter of Van Alstyne, 207 N. Y. 307; Bowers v. Johnson, 49 N. Y. 435; Hamlin v. Stevens, 177 N. Y. 39; Taylor v. Higgs, 202 N. Y. 65.) Appellant was not competent to testify to the personal transactions and communications between her and the insured in his lifetime. (Sabin v. Grand Lodge, 8 N. Y. Supp. 185; 6 N. Y. S. R. 151; Barry v. E. L. Assur. Society, 59 N. Y. 587.) HISCOCK, Ch. J. The New York Life Insurance Company issued a policy on the life of one Ward in the sum of $5,000, payable on death of the insured to his executors, administrators or assigns. The policy also contained a provision that the insured might at any time change the beneficiary under said policy by written notice and indorsement of the change on the policy by the company. When Ward died opposing claimants to the proceeds of the policy appeared. One one side were his sons who a short time before his death had been duly designated and by the company recognized as beneficiaries under the policy. On the other side appeared 1919.] Opinion, per HISCOCK, Ch. J. [225 N. Y.] the wife who claimed the proceeds of the policy under an equitable parol assignment for value antedating the designation of the beneficiaries. The company paid the proceeds into court to be contested for by the opposing claimants and judgment has thus far proceeded in favor of the beneficiaries as against the alleged assignee. While there is no claim that the designation of the defendant beneficiaries was for a valuable consideration, there is on the other hand no question that their designation was made in proper form. The claim of the appellant to an assignment of the policy rests entirely on parol testimony. Two witnesses gave evidence to the effect that the insured had in substance stated that he had made an assignment of his insurance to his wife. The main testimony, however, to sustain the alleged assignment was given by the wife herself who first testified that on one occasion some time before her husband's death, when he desired to borrow some money from her he stated in substance that he would give her a note for what he already owed and would execute as security for new loans assignments of life insurance policies, which it may be inferred included the present one, and that thereupon she loaned him some money. In subsequent testimony, however, she varied her account of this interview and testified to statements then made by her husband which were in conformity with those said to have been made by him at various subsequent times and which were to the effect that he had assigned his life insurance policies to her, that she did not need be afraid to loan him money because she would be repaid or was secured by assignments of his insurance, etc. These statements, which are the ones relied upon on this appeal, were, therefore, to the effect that the insured had assigned to the appellant his life insurance or his life insurance policies, and she says that on the strength of these statements she from time to time loaned him various sums of money reaching |