Bartlett v. Goodrich — 72 N.Y. St. Rep. 1

Majority

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Maria H. N. Bartlett, as Executrix, etc., Resp’t, v. William W. Goodrich, as Assignee, App’lt.

(Supreme Court General Term, First Department,

Filed December 18, 1895.)

Headnote

Insurance—Proceeds oe policy.

Where the testator, in March, 1837, assigned a policy of insurance on Ms life to his two partners individually, which, in July, 1890, was reassigned to him, and the legal title to it was in him when he died, and the premiums were paid by the firm but were repaid after testator’s death, and the firm was at all times indebted to him, the firm’s assignee does not have an equitable title to the policy as against the executor of the insured, though, with the will there were found letters showing that testator at one time meant to reassign the policy to the firm or to his partners and also a draft of an assignment of the policy.

Appeal from, a judgment rendered in favor of plaintiff.

William G. Choate and John A. Deady, for app’lt ; Frederic A. Ward, for resp’t.

From July 15, 1890, to May 24, 1894, the date of the death of Edward B. Bartlett, the legal title to the policies of insurance on his life was in him, and on his death it passed, under his will, to the plaintiff. The defendant insists that the equitable title to the policies was in the firm of E. B. Bartlett & Co. They never were assigned to the firm, but in March, 1887, they were assigned by Edward B. Bartlett to Albert C. Woodruff and Henry B. Bitchie, in equal shares, who, with Bartlett, were partners composing the firm of E. B. Bartlett & Co. The legal title remained in Woodruff and Bitchie until July 15, 1890, when they reassigned the policies to Bartlett. The plaintiff is the representative of Bartlett and his creditors, and the defendant, is the representative of the creditors of the firm of E. B. Bartlett & Co. and of the individual creditors of Woodruff and Bitchie, and the equities of these litigants must be worked out through the equities of the individual partners as between themselves and the firm. It is very clear, that, as between the three partners, Bartlett was the equitable, as well as legal, owner of these policies, as he was between himself and the firm. The firm was at all times largely indebted to him, and at the time of his death in the sum of upwards of

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$127,000; and there was no obligation on his part, legal or equitable, to relinquish his individual title to the policies in favor of the firm or in favor of Woodruff and Hitchie. The annual premiuns on the policies were paid through the firm, but it is not unusual for members of firms to pay individual debts out of partnership funds; and when this is done, as in this case, with the knowledge and consent of all the partners, no wrong is done. These premiums have all been repaid to the firm since the death of Bartlett. The letters written by Bartlett, and found after his death in an envelope with his will, together with a draft of an assignment, show quite conclusively that at one time he intended to reassign these policies to the firm, or to Woodruff and Hitchie, but it is conceded that he never executed this intent. We think the evidence falls short of establishing an equitable title in the assignee to the fund derived from these policies, and that for the reasons given by the learned trial judge for his decision, the judgment should be affirmed, with costs.