Lateer v. Prudential Insurance of America — 64 A.D. 423

Majority

p. 423

Irene Lateer, as Administratrix, etc., of Judson T. Lateer, Deceased, Appellant, v. Prudential Insurance Company of America, Respondent.

Headnote

Action on an insurance policy issued to the plaintiff’s husband and payable to his executors — interpleader of one who claims that the plaintiff gave him, the policy.

Where the wife of a decedent brings an action as administratrix of his estate to recover upon a policy of life insurance issued to him which was payable to his executors or administrators, an affidavit stating that the plaintiff at a certain time gave to the affiant the policy in suit and the receipt book accompanying the same, saying that she could pay the premiums no longer and that if he would do so he could have the policy and all benefits to be derived thereunder, is insufficient to warrant the substitution of the affiant as defendant in the place and stead of the insurance company, as the claim of the affiant is without reasonable foundation.

Appeal by the plaintiff, Irene Lateer, as administratrix, etc., of Judson T. Lateer, deceased, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 17th day of June, 1901, substituting Lewis W. Robinson as defendant in the action in the place and stead of the Prudential Insurance Company of America.

Frank Lybolt, for the appellant.

William O. Campbell, for the respondent.

This action was brought by the plaintiff as administratrix of her deceased husband, to recover $500 upon a policy of insurance whereby the Prudential Insurance Company agreed to pay that sum to the executors or administrators of Judson T. Lateer within twenty-four hours after proof of his death. The basis for the order of inter-pleader is a claim to the ownership of the policy, made by one'Lewis W. Robinson, who is the son-in-law of the plaintiff. Mr. Robinson in his affidavit alleges that the plaintiff left her husband! in .September, 1900, and about that time gave to him the policy in suit and the receipt book accompanying the same, saying that she could keep it

p. 424

up ho longer, and that if he would keep up the payments he coiild have the policy and all benefits to be derived thereunder.

This transaction, assuming that it took place precisely as alleged in the affidavit, conveyed no title to the instrument. The policy did not belong to Irene Lateer as the wife of the insured, nor had she any right to give it away. The instrument, as appears by the complaint, was issued and delivered to the insured husband himself, and by its terms was payable to his executors or administrators; and the wife’s right to sue upon it now grows solely out of the fact that she has been appointed administratrix.

Under these circumstances the claim of the party who has been substituted utterly lacks that reasonable foundation which is necessary to warrant an order of interpleader. (Stevenson v. New York Life Ins. Co., 10 App. Div: 233.)

The order should be reversed.

Goodrich, P. J., Woodward, Hirschberg and Jenks, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.