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Edward A. Brown, of New York City, for administrator. Duer, Strong & Whitehead, of New York City (Selden Bacon, of New York City, of counsel), for Canadian Bank of Commerce.

FOWLER, S. The issues in this discovery proceeding arise upon the conceded facts as follows:

The deceased, a citizen of Mexico and a resident of this county, died in Mexico November 28, 1916, leaving him surviving his widow and a son 12 years of age. The widow has been appointed administratrix of his estate by the Mexican court. The petitioner in this proceeding, as a creditor, upon citation to the public administrator, the Attorney General and the Mexican consul, and without citation to the widow and son, upon the ground of nonresidence, was appointed administrator by this court by decree dated June 28, 1917. The petitioner herein qualified by filing the required bond in the sum of $30,000, and letters of administration were issued to him.

Among the claimed assets of the estate in this jurisdiction are notes to the amount of 85,000 pesos (gold), Mexican money, in the possession of the branch of the Canadian Bank of Commerce, located in this city. The local administrator has brought this discovery proceeding to compel the bank to deliver said notes to him as administrator. The notes were deposited with the bank by the decedent for collection. The notes are in terms payable at the city of Mexico, but the decedent had instructed the bank to hold the notes for payment in New York. Some of the notes are payable to the decedent. Others, payable to one Juan Zuburan, were indorsed in blank by said Zuburan before they were delivered to the bank by the decedent. One note for 20,000 pesos is payable to the decedent and Juan Zuburan jointly, and indorsed by the decedent, but not by said Zuburan. Said note was delivered to the bank as the joint property of the decedent and said Zuburan. Zuburan asserts joint ownership of this note, and has instructed the bank not to deliver it to the petitioner, the New York administrator. The widow, appointed administratrix in Mexico, claims the notes as administratrix, and has instructed the bank to deliver them to her representatives in New York. The local administrator prays for an order directing delivery of all the notes to him.

The respondent bank questions the validity of the appointment of the local administrator upon the ground that the widow was not cited in the administration proceeding. Citation to her was dispensed with upon the ground that she was a resident of Mexico and was not then within the state of New York. The respondent asserts that the widow was then a resident of this state, and that the administrator is not a creditor of the estate. But these issues would be relevant in a proceeding to revoke the letters upon statutory grounds, and have no bearing in this collateral proceeding.

[1, 2] It appears that this court had jurisdiction to appoint an administrator both upon the ground or residence and existence of personal property in the county. The other jurisdictional facts were also proved. While the administrator's letters stand in full force and effect, his powers do not fail because it is suggested in a discovery proceeding that the papers upon which administration was granted by this court

contained unfounded statements as to status of the petitioner or as to residence of the widow. If there is any merit in the contentions as to residence of the widow and status of the petitioner, the statute provides a remedy by which the letters may be revoked. Section 2569, C. C. P. [3] The respondent asks that Žuburan and the widow be made parties to this proceeding before an order be made directing the turning over of the notes to those entitled to possession. As for the note to the joint order of the decedent and Zuburan, and indorsed by decedent before delivery to the bank, there is no necessity of considering the question further, because the petitioner is manifestly not entitled to possession of that note.

[4] The only necessary parties to a discovery proceeding are those who have knowledge, information, possession or control of property that should be inventoried by or delivered to the representative of the estate (section 2675, C. C. P.), and such parties are required to be served personally with the order requiring personal attendance at the inquiry. There is no provision for bringing in as a party a person who is without the jurisdiction and whose personal attendance cannot be compelled.

[5] The widow, as foreign administratrix, has no right to possession of the local assets of the estate as against the New York administrator. As between the petitioner and the administratrix in Mexico, the petitioner is entitled to possession of the personal property in this jurisdiction.

All the notes except the one claimed by Zuburan should be delivered to the petitioner. Settle decree on notice.

(101 Misc. Rep. 351)


In re HAMMER, Public Adm'r.


(Surrogate's Court, Bronx County. October, 1917.)


A policy of insurance provided that, on the death of the husband prior to that of his wife, the proceeds of the policy should be paid to the wife. The insured, his wife, and daughter perished in a common disaster, and there was no evidence as to which of them was the last survivor. Held, that the right of the wife to the proceeds of the policy was contingent on her survivorship, and in the absence of evidence of such survivorship the proceeds of the policy passed to her husband's personal representative. 2. DEATH 5 SURVIVORSHIP-PRESUMPTION.

Where a husband and wife and a daughter perished in a common disaster, and there was no evidence as to survivorship, the law indulged in no presumption, and no determination could be made as to whether the daughter survived either or both her parents.

Proceedings upon the judicial settlement of the account of Ernest E. L. Hammer, Public Administrator of the County of Bronx, as administrator of the estate of Albert R. Smith, deceased. Order of distribution made.

Ernest E. L. Hammer, of New York City, in pro. per.
Charles Fox, of New York City, in pro. per.

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SCHULZ, S. The decedent, his wife, Gladys E. Smith, and his. daughter, Dorothy Smith, the latter an infant under the age of 14 years, were passengers upon the ill-fated steamship Lusitania, and perished when the same was sunk on May 7, 1915. No evidence is at hand to show which of the three persons named was the last survivor. At the time of his death the decedent carried, among others, two policies of insurance upon his life. In each of these policies the insurance company promised

"to pay

to Albert R. Smith,

herein called the insured,

on the fifth day of April, 1923, if the insured be then living, or upon receipt at said home office of due proof of the prior death of the insured, to his wife, Gladys E. Smith the beneficiary, with the right to the insured to change the beneficiary * upon the surrender of this policy properly receipted. "Death of Beneficiary before Insured-Change of Beneficiary.—If any beneficiary die before the insured, the interest of such beneficiary shall vest in the insured, unless otherwise provided herein. When the interest of a beneficiary shall have vested in the insured, or when the right to change the beneficiary has been reserved, the insured may designate a new beneficiary, by filing written notice thereof at the home office of the company accompanied by this policy for suitable indorsement hereon."


* *

The account shows that the insurance company paid the amount of the two policies in question to the administrator of the decedent's estate and to the administrators of Gladys E. Smith, jointly.

[1] One of the latter filed a claim with the accounting administrator, claiming that the estate of Gladys E. Smith is entitled to the proceeds of the two policies in question, and is also entitled to receive the "entire net distributive amount of the estate" of the decedent as her distributive share. The accounting administrator rejected this claim. I am now asked to determine the validity of the said claims, and to further determine the question whether Dorothy Smith, the daughter, survived the said Albert R. Smith and Gladys E. Smith or either of them.

Under the common law one claiming through a survivorship must prove the survivorship. There is no presumption of survivorship in at case where a number of persons perish in a common disaster as in this case. In the absence of evidence, the fact of such survivorship is assumed to be unascertainable, and property rights are disposed of as if death occurred at the same time. Counsel agree that such is the law, and abundant authority for it is at hand. Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424; St. John v. Andrews Institute, 191 N. Y. 254, 83 N. E. 981, 14 Ann. Cas. 708; Matter of McInnes, 119 App. Div. 440, 104 N. Y. Supp. 147; Middeke v. Balder, 198 Ill. 590, 64 N. E. 1002, 59 L. R. A. 653, 92 Am. St. Rep. 284. Each contends, however, that the law as thus enunciated, when applied to the facts of the present case, throws the onus of proving survivorship upon the other. The accounting administrator urges that before the estate of the wife can recover her representatives must prove that she survived her husband; that having conceded that it is impossible to establish that fact by evidence the property rights of the decedent must be disposed of as if his death and her death had occurred at the same time, or as if her death had occurred before his, and hence must be paid to

the personal representatives of his estate. The contention of the representative of the wife's estate is the converse.

[2] To ascertain who is entitled to the proceeds of the policies of insurance, we must have recourse to the language of these documents. From the quotation above it will be observed that the insured was entitled to the payment thereunder, if he lived to a certain date, that he had a right at any time prior to that date or prior to his death to change the beneficiary, and that if the beneficiary died before the insured her interest vested in him. Under such conditions, the interest of the wife was a contingent interest, a mere expectancy which might be defeated in any one of three ways: (a) By the insured living to the date mentioned; (b) by his changing the beneficiary before his death; or (c) by her decease prior to that of the insured. Smith v. National Benefit Society, 123 N. Y. 85, 25 N. E. 197, 9 L. R. A. 616; Southwell v. Gray, 35 Misc. Rep. 740, 72 N. Y. Supp. 342. The wife's interest did not vest until the death of the insured, because up to that very moment he could have changed the beneficiary. If it did not vest until the death of the insured, it seems to me to follow that, before it could have vested at all, the widow would have had to survive the insured. This being so, her survivorship was a condition precedent to the vesting (Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 347, 80 N. E. 203, 10 Ann. Cas. 266), and the onus of proving such survivorship is therefore upon the claimant. Dunn v. New Amsterdam Casualty Co., 141 App. Div. 478, 126 N. Y. Supp. 229.

As there is no evidence to prove such survivorship, and as under the facts as stated there can be none, the death benefit must be disposed of as though both husband and wife had died at the same instant, in which event there was no interval between the death of the husband and the wife during which the death benefit could have vested in the wife. It has been held that dying at the same time is the same as dying before. See cases cited in dictum in St. John v. Andrews Inst., supra, approved of in Dunn v. New Amsterdam Casualty Co., supra. It follows that the insurance must be distributed as though she had died before her husband, in which event it vested in him, and is therefore payable to his personal representative.

[3] There being no evidence on the subject, and the law indulging in no presumption, no determination can be made as to whether Dorothy Smith survived either or both of her parents. Under the law as above set forth, it also follows that the other property for which the administrator accounts must be distributed as though the decedent, his wife, and his child had died at the same time.

The claims of the personal representative of Gladys E. Smith to the proceeds of the policies in question and to the personal property of the deceased cannot be sustained, and are disallowed.

Decreed accordingly.


In re MCNULTY et al.

January 9, 1918.)

(Surrogate's Court, Kings County.


A will, giving to a wife the benefit of a tailoring business including all goods free from all debts and obligations whatsoever, passed all accounts receivable, but relieved the wife from the payment of any of the debts of the business.


Where decedent owned land and a mortgage thereon, there being no merger, and did not devise both the fee and the mortgage to the same person, the executors properly collect the interest from the devisee of the land and account for the same.

In the matter of the accounting of Edward McNulty and Edward F. Brogan, as executors of the last will and testament of James McNulty, deceased.

Carmody & Carswell, of New York City, for executors.

Robert H. Koehler, of New York City, for objector.

Wingate & Cullen, of New York City, for People's Trust Co.

KETCHAM, S. The will under which this accounting proceeds contains the following:

"Third. I give and bequeath to my said wife, Sophia A. McNulty, absolutely all my household furniture and furnishings of every description, and the good will and benefit of the tailoring business which I am now carrying on, * including all goods and stock in trade free from all my debts and obligations whatsoever, and the leasehold premises wherein the said business is being carried on for all my term or interest therein."

In the Matter of Lowe, 149 App. Div. 347, 134 N. Y. Supp. 537, affirmed 206 N. Y. 671, 99 N. E. 722, the language construed was:

"I give, devise and bequeath to my daughter, Helen Springer, my printing office and bindery, together with all the presses, bindery, machinery, type, paper on hand, office furniture and equipment of every nature connected with said business."

The Appellate Division found in these words a gift of the accounts receivable of the business at the death of the testator. The Court of Appeals confirmed this ruling, but held that the gift was subject to an assumption by the legatee of the accounts payable.

[1] This authority requires the conclusion, upon language in the will at bar more favorable to the legatee, that in the word "benefit" there were bequeathed the accounts receivable, while the clear expression of the will itself exonerates the bequest from any payment of the debts.

[2] The mortgage of the Clinton avenue property, which belongs to the estate, must be regarded as a live investment. It was not merged with the title for several reasons, of which one is sufficient. Merger cannot arise unless the fee and the mortgage are fused in the same person. Here the deed was made to the devisees of the testator according to their interests in the lands devised by the will, while the mortgage

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