124 Misc. 498 | N.Y. Sur. Ct. | 1925
The Central Foundry Company of Medina, N. Y., for the benefit of its employees (including the intestate), took out a policy of life insurance in the Travelers Insurance Company of Hartford Conn., dated January 1, 1918, providing that upon the death of any employee it would pay to the beneficiary of such deceased
Concurrently with the issuance of such policy the insurance company issued a certificate bearing the same date and containing the following clause: “ This is to certify that under and subject to the terms and conditions of a group contract of insurance No. G374, issued and delivered to the Central Foundry Company (hereinafter called the assured) by the Travelers Insurance Company, Hartford, Connecticut, the life of Benjamin Johnson (hereinafter called the employee) is insured initially for the sum of $1500 payable to Celia Johnson, wife, as beneficiary if death shall occur while an employee of the assured during the continuance of said contract. The insurance provided for by said contract terminates with the termination of employment with said assured.”
This certificate was delivered to the insured, Benjamin Johnson, apparently shortly after its issuance. Presumably such a certificate was issued to each of the employees of the Central Foundry Company. Such policy continued in force from year to year thereafter by the payment of the necessary premiums by the Central Foundry Company. Thereafter, on October 13, 1921, an indorsement, executed by the Travelers Insurance Company, was attached to such policy then in the possession of the Central Foundry Company. This indorsement provided that any insured employee could at any time change the beneficiary by a written request on the company’s blank furnished for that purpose; and also provided: “ If any employee shall survive the beneficiary or beneficiaries originally
It is, of course, a settled rule of law that if one takes out insurance on his fife payable to another, such insurance is irrevocable so far as the person taking out the insurance is concerned, and the beneficiary has a direct interest in the policy which can only be transferred by an assignment duly executed by such beneficiary. (Stilwell v. Mutual Life Insurance Co., 72 N. Y. 385; Fowler v. Butterly, 78 id. 68; Garner v. Germania Life Ins. Co., 110 id. 266; Butler v. State Mutual Life Assurance Co., 55 Hun, 296; affd., 125 N. Y. 769; Shipman v. Protected Home Circle, 174 id. 398, 407; Washington Central Bank v. Hume, 128 U. S. 195.)
It is claimed on behalf of the children of Benjamin F. Johnson by his former wife that the insurance policy in question was only from year to year; that it was not taken out by Benjamin F. Johnson, but that it was taken out by his employer which had the right at any time to stop paying the premiums and thereby terminate the policy. Although the policy is renewable from year to year, the original policy is continued in force by the payment of the premiums. There was no option in the policy that gave the Central Foundry Company the right to change the beneficiary or to alter the terms of the policy. If such company saw fit to terminate
It is claimed, however, on behalf of Benjamin F. Johnson’s children by his former wife, that even if Celia Johnson, the beneficiary, had such an interest in the policy as could not be taken away from her by the indorsement upon the policy, nevertheless, owing to the fact that the designated beneficiary predeceased her
Under section 202 of the Surrogate’s Court Act (formerly Code Civ. Proc. § 2672) choses in action are deemed to be assets and go to the executors or administrators to be applied and distributed as part of the personal property of the intestate. This provision became effective by statute on January 1, 1836. (R. S. 1836, pt. 2, chap. 6, tit. 3, §§ 6-8.) But the Statute of Distributions prior to 1867 was governed by the following provision of title 3, chapter 6, part 2, of the Revised Statutes:
“ § 79. The preceding provisions respecting the distribution of estates, shall not apply to the personal estates of married women; but their husbands may demand, recover, and enjoy the same, as they are entitled by the rules of the common law.” (2 Edm. Stat. at Large [1863], 101, § 79.)
By the amendment made by section 11 of chapter 782 of the Laws of 1867, the above provision was amended to read as follows:
“ § 79. The preceding provisions respecting the distribution of estates shall apply to the personal estates of married women dying, leaving descendants them surviving; and the husband of any such deceased married woman shall be entitled to the same distributive share in the personal estate of his wife to which a widow is entitled in the personal estate of her husband, by the provisions of this chapter, and no more.”
Great stress is laid by counsel upon the case of Waldheim v. Hancock Mutual Life Ins. Co. (8 Misc. 506), but it would seem as though the court in that case must have overlooked the change made in the statute in 1867, which rendered the case of Olmsted v. Keyes (supra) no longer applicable except in cases in which, until 1919, the wife died intestate leaving no descendants.
In this case, therefore, the proceeds of the insurance policy were a part of the estate of the wife, Celia Johnson, and pass to her personal representatives.
The question arises as to the jurisdiction of this court to pass upon the claim of the infant children represented by the special guardian. In making claim to the proceeds of the insurance policy, they have no standing in this court for the reason that only an administrator of their mother’s estate can make such a claim. The question also arises as to the jurisdiction of this court to pass upon such a claim. Because of the amendments made to the provision now found in section 40 of the Surrogate’s Court Act in 1914 and 1921, I believe that this court has jurisdiction to pass upon such a claim. (Matter of Van Buren v. Estate of Decker, 204 App. Div. 138; Matter of Ungrich, 115 Misc. 762.) The court in Matter of Hyams (237 N. Y. 211), in passing upon the question as to whether the Surrogate’s Court had power to determine the title to property that was not owned by the decedent in his lifetime, very clearly had reference to property to which neither- the decedent at any time before his death, nor the personal representative since his death, had ever had possession or title. Certainly if the property involved in that case had been the proceeds of a policy which in its inception was payable to the estate of the decedent, his administrator would have had authority to administer and distribute the proceeds. Certainly the court, in Matter of Hyams, did not intend to deny the right to .a personal
As the special guardian’s wards are parties to this proceeding and would be entitled to the greater part of the proceeds of this policy provided the claim is made on their behalf by the administrator of their mother’s estate, a reasonable opportunity will be given to such administrator to file and enforce herein a claim for the proceeds of the policy.