In re the Estate of Warner — 32 N.Y. St. Rep. 897

Majority

p. 897

In the Matter of the Estate of Sarah L. Warner, Deceased.

(Surrogate’s Court, New York County

Filed April 18, 1890.)

Headnote

Husband and wife — Choses in action — Life insurance.

_ Deceased, a married woman, was the beneficiary named in a policy of life insurance. Held, that the interest acquired by heron its issuance was a chose in action; that on her death intestate and without descendants it vested in her husband, and that the circumstance that it was not reduced to possession is immaterial.

p. 898

Determination of claims to personal property.

George H. Slarr, for the administratrix; William F. Scott, for the executors of T. L. Warner, deceased; H. D. Sedgwick, for H. Gr. MacKaye; W. M. K. Olcott, for Emily B. Yon Hesse.

The interest acquired by the beneficiary upon the-issuance of the policy was a chose in action. Olmsted v. Keyes, 85 N. Y., 593 ; U. S. Trust Co. v. Mutual Benefit Life Ins. Co., 115 id., 152 ; 24 N. Y. State Rep., 1.

Upon the death of deceased, intestate and without descendants, the chose in action vested in her husband, and the circumstance that it was not reduced to possession is immaterial. Whitehead v. N. Y. Life Ins. Co., 102 N. Y., 143 ; 1 N. Y. State Rep., 344 ; Robins v. McClure, 100 N. Y., 328 .

In the latter case the court refers to the decision in Fleet v. Perrins, L. R., 3 Q. B., 536; on appeal, L. R., 4 Q. B., 500, in which it was- held that where a husband has not interfered with the choses in action of the wife during her life, the same passed toiler next of kin, and that his representatives upon his death, after the death of the wife, have no right thereto. The court of appeals said (p. 336) that this ruling was in conflict with the current decisions of this state, and should not be followed.

In Olmsted v. Keyes, supra, one L. procured a policy of insurance payable to the plaintiff 0., as trustee for the wife of L., in 1846. The wife died in 1857. In 1861 L. married again one M. In 1864, O., the trustee, upon the request of L., assigned the policy to M., the second wife. L. died in 1878, intestate, leaving M., his widow, and one child by her, and several children by his-first wife. The action was commenced to determine the conflicting claims of the children of the first wife and M. The court say (p. 602): “ All the choses of the wife not reduced to possession during the joint'lives, by the common law, passed to the husband upon her death, all, without any exception, and there is no-authority to the contrary ; and this is true whether such choses are then payable or are mere reversionary or contingent interests, payable at a future day, or mere possibilities: He may then release them or take payment of them without administration, if he-can get payment. Ransom v. Nichols, 22 N. Y., 110 .

“ If administration is needed to reduce the choses to possession, he is entitled to it, and if there are no debts, the administration is solely for his benefit. If, after his wife’s death, the husband does not release, assign or reduce to possession her choses in action-during his lifetime, then after his death his personal representatives are entitled to administration upon them for the benefit of his estate as part of his assets.” The court, applying those prin-' ciples to the case, held that the wife’s interest in the policy was a chose in action, and at her death passed to her husband in Iris right of survivorship.

U. S. Trust Co. v. The Mutual Benefit Life Ins. Co., supra, iscitéd by the contestants in support of their contention; but as a matter of fact it is an authority against them. The policy in that case (as construed in the court of appeals) is identical with one of

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the policies in the ease at bar. The defendant issued a policy of insurance on the life of F., for the sole use of his wife, but in case she died before him then the amount should be payable to their children, or to the guardian of the children if under age. The wife died, leaving her husband surviving and three children. One of these children died after the mother, before her father, intestate, and without issue, leaving a husband surviving her. The .action was brought by the plaintiff as guardian of the children of a deceased child of the insured, to recover their proportionate share of one-third of the proceeds which was paid to the administrator (the husband) of the said deceased child. The court said: “ When she ” (the wife of the insured) “ died before her husband, the only persons interested in the policy were her children then living, and the whole policy, as a chose in action, belonged to them. They held vested interests therein as they could in any other chose inaction payable at a future time." * * * “In the event that has happened, the policy might be construed and is payable precisely as if the children alone had been named therein. Therefore when Mrs. Miles ” (the deceased daughter of the insured) “ died, her interest in the policy passed to her administrator as her personal representative and as part of her personal estate; and upon the death of Mr. Finn” (the insured) “one-third of the policy was payable” * * * “to the administrator of Mrs. Miles.”

Costs will be awarded to the administratrix only ; the affidavit submitted in support of the bill, however, does not comply with Buie 22.