In re the Judicial Settlement of the Accounts of Rogers — 54 N.Y. St. Rep. 199

Majority

p. 199

In the Matter of the Judicial Settlement of the Accounts of Mary C. Rogers, Adm'rx of Guy C. Goss, Deceased.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Executors and administrators—Assets.

The decedent was entitled to a commission on certain transactions which

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was not due until after his death. Upon receipt of a letter acknowledging the indebtedness, he gave the same to his wife with directions to collect it and pay certain premium notes which he had given for insurance on his-life. After his death the wife collected the debt, allowing the notes out of the policy and kept the money so collected. Held, that as a power of attorney cannot last after death, in the absence of proof that the claim for the commissions was transferred to the wife, they should be considered assets and the administratrix required to account therefor.

Appeal from decree rendered by the surrogate of Richmond county, adjudging that the administratrix is accountable for no money or property of her decedent.

Thos. J. Ritch, Jr., for app’lt; Calvin D. Van Name (Sidney F. Rawson, of counsel), for resp’t.

Letters of administration were issued to Mary C. Rogers, a daughter of Guy G. Goss, by the surrogate of Richmond county, on the 11th day of June, 1890. The petitioner, Benjamin Tuthill, had recovered a judgment against the deceased, Guy C. Goss, in his lifetime, which remains unpaid. He petitions as a creditor for a settlement of the accounts of the administratrix, and that he be paid his judgment and claim. The administratrix answered that there was no property. Upon the trial before the surrogate the controversy was confined to three items which the petitioner claimed should be held to be assets in the administratrix’ hands. The deceased was an agent for the Dorr Paint Company. He had a deposit as agent in the Seaboard Bank. He had a right to some $300 for his services out of this bank account. The expenses of the last sickness of deceased, and his funeral expenses, consumed this amount, and this fact is found by the surrogate.

The deceased had, in his lifetime, procured a vessel contract for the Mew England Ship Building Company of Bath, Maine. The payment for the commission on this contract was not due at the death of Goss. He had been unable to pay the premiums on three life insurance policies for the benefit of his wife, and gave his notes for the premiums due in the early part of the year 1890. A few weeks before he became sick he received a letter from the company acknowledging the indebtedness. He gave this letter to his wife with directions to collect the amount and with it to pay the premium notes then given. The wife did collect the $500 after his death, and allowed the notes out of the policy, and kept the $500. A power of attorney could not last after death, and it is not found that the letter was the subject of a gift inter vivos or causa mortis. If the power to collect after death existed, it must be because the title to the account in some way passed to the wife, and the collection after death can be supported by the title in the wife. As the case stands it is not clear. The proof is confined to the testimony of Mrs. Goss. As the testimony is returned, the item of $500 should be deemed assets, and the decree should be modified accordingly.

The third and remaining item is for a claim for premiums on life policies in excess of $500 in one year, under chapter 277, Laws of 1870. The deceased had procured three policies, each

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for $10,000. Two were made payable to his wife and one was payable to the personal representative of Gross. This last policy was assigned to the wife in May, 1885. This assignment is found to have been made in good faith and without fraud. The proof fails to show that $500 was paid for premiums in any one year out of the funds of the deceased. The wife had a separate estate and she contributed to the premiums yearly out of her separate estate and property. These payments were never returned to her and she never received any benefit from them except from the policies she received after her husband’s death. It seems probable that after the assignment in 1885 he paid nothing. He then became involved and gave up all his property to his creditors. No case is made in respect to this $10,000 assigned policy which should charge the administratrix with the amount of it. It was paid to the wife under a valid authority as between the widow and the company, and there is nothing in the case which would justify the administratrix in assailing the transfer.

The decree of the surrogate should, therefore, be affirmed except as to the $500, and as to that it should be modified by directing a new trial, so that proof may be taken whether the claim was transferred to the wife, and if there be no such proof given, then the administratrix should be directed to account for it as an asset. No costs to either party on this appeal.

Dykman and Pratt, JJ., concur.