Emma F. Cuyler, as Administratrix, etc., of George N. Cuyler, Deceased, Respondent, v. Matthew J. Wallace and Henry S. McCall, as Executors, etc., of George Cuyler, Deceased, Appellants

Emma F. Cuyler, as Administratrix, etc., of George N. Cuyler, Deceased, Respondent, v. Matthew J. Wallace and Henry S. McCall, as Executors, etc., of George Cuyler, Deceased, Appellants. Insurance policy — assignment of, by a son to his father, and the filing of a duplicate-with the company—proof as evidence of its ownership that the son had the policy at the time-of the death of the father and that the executor of the father had not included it in the inventory of the fathers estate. In an action brought to determine the respective rights of the administratrix of" George N. Cuyler and of the executors of George Cuyler to a policy of life insurance issued on the life of George N. Cuyler and payable to his- legal representatives, it appeared that on August 3, 1887, George N. Cuyler assigned and delivered said policy to his father, George Cuyler; that in 1891 a duplicate-of said assignment was filed with the insurance company which issued the policy; that George Cuyler died November 7,1893, and that his executors filed, an inventory of his estate and did not include therein the policy of insurance; that after the assignment of the policy of insurance and the filing of the duplicate thereof with the insurance company and previous to the death of George Cuyler, George N. Cuyler was in possession of the policy of insurance and continued in the possession thereof up to the time of his death, claiming to be the owner thereof. ■ -Held, that the failure of the executors of- George Cuyler to include the policy among-the assets Of their testator was evidence of the fact that the assignment of the policy was not found'among such assets; That it having been shown that the policy was once owned by George-Cuyler, there was a legal presumption of the continuance of such ownership until some evidence was offered of its retransfer to George N. Cuyler; That the possession of the policy itself by George N. Cuyler, subsequent to the assignment to George Cuyler and before the latter’s death, was not- of itself sufficient to rebut the presumption Of the continued ownership of the policy by George Cuyler; - ■ That when, however,, in addition to such possession by George 3SL Cuyler itiwas shown that the executors .of George Cuylér . failed to find the assignment among their testator’s papers,, a legal' inference arose that -the assignment had been destroyed and the' policy retransferred by George Cuyler to George N. Cuyler; ‘ That the trial court was, thereforp, justified in finding that the administratrix of - George.N. Cuyler was entitled to the proceeds of the policy. Appeal by the defendants, Matthéw J. Wallace and another, as executors, etc., of George Cuyler, deceased,^from a judgment of the Supreme Court in favor of the plaintiff,; entered in the qffice of the clerk of the county of Albany on the 11th day of July, .1904, upon the decision of the court rendered after a trial before the court ■without a jury at the Albany Trial Term. ■ The facts in this case were stipulated, and are as follows: “ 1st. That on or about May 7t-li, 1867, The Connecticut. Mutual Life Insurance Company issued .and delivered to George M. -Cuyler its policy of insurance on. the life of George M. Cuyler, in and by which policy and contract of insurance the said company did insurthe life of said George 1ST. Ciiyler in the sum of twenty-five hundred dollars, and did promise and agree to pay the said sum of twenty-five hundred dollars to the lega^ representatives of the said George JSf. Cuyler within ninety days after satisfactory proofs of the death •of said George IST. Cuyler had been furnished to said company. “ 2nd. That said policy of insurancé became and was a fully paid-up policy of. insurance long before the death of said George ÍN". Cuyler. a “ 3rd. On or about August 3, 1887, George 3ST. Cuyler assigned and delivered said policy of insurance to his father, George Cuyler, and a duplicate of said assignment was thereafter and oil or about February 18, 1891, duly filed in the office of The Connecticut Mutual Life Insurance Company. “4th. George Cuyler died on or about November 7, 1893, at the City, of Albany, leaving a last will and testament, which was duly admitted’ to probate by the Surrogate of Albany County on the 11th day of July, 1894, and the defendants Matthew J. Wallace and Henry S. McCall were duly appointed as executors of said last will and testament and duly qualified as such, and ever since that time have been and now áre acting as such. “ oth. After the assignment of said’ policy of insurance and the filing"of a duplicate thereof with'the insurance company, and previous to the death of George Cuyler, plaintiff’s intestate, George N. Cuyler, was in possession of. said policy of insurance, and continued in possession thereof up to the time of his death, claiming to be the owner thereof,, and the defendants Henry S. McCall and Matthew J. Wallace, as executors of George Cuyler, deceased, never had possession of said policy of insurance. “ 6th. The. defendants,, as executors of said George Cuyler, deceased, filed an inventory of said estate in the office of the Surrogate of Albany County, on or about the 11th day of October, 1894, but no claim is therein made to the policy of insurance in question. “ 7th. ’ The defendants, as such executors, rendered a final account of their proceedings in the year 1896, but no claim is made in the said final account of their proceedings to the'policy of insurance in question. - “8th. Objections were' filed to the account of the defendants as executors in that proceeding by and on behalf of Charles M. Cuyler and Ida P. Cuyler; children and next of kin of their testator, one being that the said executors had. failed to account or charge themselves with the said policy of insurance, and claiming that it belonged to the estate of George Cuyler. “ 9th. Upon that objection testimony was taken before the Surrogate of Albany County. George H". Cuyler was subpoenaed and sworn as a witness; was required to and did produce said policy of insurance, and did then and there testify that he was the owner of and in possession of said policy of insurance. 10th. That thereafter and on or about February 18th, 1896, a decree was made by the Surrogate of Albany County in the said final judicial settlement of the accounts of the defendants as executors of the last will and testament of George Cuyler, deceased, and duly filed in said Surrogate’s office on that day, in and by which it Was provided, among other things, .that the defendants herein retain the sum of $500 for the expenses of prosecuting an action against George FI. Cuyler for the recovery of said policy of insurance. “ lltli. That said George FT. Cuyler died intestate on the 22nd day of August, 1903, at the city of Albany, where he was born and always resided. “12th. That the plaintiff herein was" duly appointed as the administratrix of his .estate by the Surrogate of .Albany County, on or about September 15th, 1903, and that she duly qualified, and ever since that time has been and now is acting as such administratrix. “ 13th. That the said defendants never attempted by action, or any other proceeding, to recover said policy of insurance from George FT. Cuyler in his lifetime, or since his,death, except that said defendants did make a claim to the moneys due ón said policy of insurance from said Connecticut Mutual Life Insurance" Company after the death of said George FT. Cuyler. “ 14tli. That George FT. Cuyler resided with his wife, the plaintiff herein, for many years prior to the death of George Cuyler, at 131 Chestnut Street, in the city of Albany, FT. Y., and that said George Cuyler resided on Clinton Avenue in said city of Albany. “15th. Annexed hereto is a copy of the will of said George Cuyler. ■ . “ Dated April 23, 1904. “ MARK COIIFT, “Attorney for Plai/ntiff. ■ “ZEE A. DYER, “Attorney for Defendants. i “ I, George Cuyler, of Albany, being of sound mind and memory, make, publish and declare my last will and testament as follows : “First. I direct that all my just debts and funeral expenses be paid. “ Second. I direct that my funeral be conducted in a quiet and unostentatious manner, my body interred in my lot in the Rural Cemetery, the date of my death cut on the monument there erected, and such sum be given by the executors to the trustees of said cemetery as will secure perpetual care to said cemetery lot. “ Third. I give and make the bequests or legacies following, that is to say : “ To my grandson, George W. Cuyler, $1,000.00. “To my niece, Carrie Vanderlip, $3,000.00. “ To my niece, Adeline Wilbur, of Albany, $2,000.00. “ To my niece, Eliza M. Geary, $300.00, and to her five children each a like sum of $300.00. “ To my brother-in-law, James Stryker, of Hew Brunswick, H. J., $500.00. “ To my servant girl, Mary Martin, $50.00. “ To my friends, Jacob C. Cuyler and Chauncey B. Wicks, each the sum of $50.00. ' “To Matthew J. Wallace and his brother, Robert, each the sum of $100.00. “To Henry S. Foster, $200.00. “ Fourth. I give to my son, George H., all my books and papers and wearing apparel; to my son, Frank E. Cuyler, my Hew York Central and Hudson River Rail Co. stock, of the par value of $5,000.00; to my daughter, Ida P. Cuyler, my household furniture and the personal property and money which came or comes to me through the death of my daughter Minnie; to my friend, Thomas O’Hagan, my gold-headed cane, his gift to me. I also give to my. son, Frank E., my gold watch, and to Emma Cuyler, the wife of my son George, $1,000.00. “ Fifth. I give, devise and bequeath my house and premises known as Ho. 13 Clinton Avenue, Albany, and my stock or scrip in the Western Union Telegraph Company unto my executors, hereinafter named, and the survivor of them in trust, nevertheless to take possession of said premises and stock, receive the income, rents, issues and profits thereof, lease the said real estate, and from and out of the rents and income thereof keep the same in repair, pay all taxes and assessments theréon, keep the buildings insured to amount of at least $6,000.00, during the joint lifetime of my son, George H. Cnyler, and my daughter, Ida P. Cuyler, and in case the said George H. survives the said Ida P., during the lifetime of the said George H. Cnyler, and after paying said taxes, assessments, insurance and repairs, to pay over the balance of said" rents, ibsues and profits to. said George H. and Ida P. in equal proportions, share and share-alike, during their joint lives, and in the event of the death of said Ida P. before that of said.George' H. then from and t after the death , of said Ida the whole net incomó of said estate to be paid over to said George H. during his lifetime. Payment of net income aforesaid to be . made at least as often as half yearly. The income Or .dividends of said telegraph stock is to be. paid, over to said George H. and Ida P. in the same manner as above directed in regard to 'the rents and profits of Ho. 13 Clinton Avenue, that is, equally, during the time both live, and if Ida P. dies before said George then the whole income or dividends' on said stock is to be paid over to said George.during his lifetime.- “ Lastly. 1-nominate.and appoint Matthew J. Wallace and Henry S. McCall, attorney, of Albany, executors of this my last will and testament,-hereby revoking all former wills by me made. ■ “In witness whereof,-1 have hereunto set my hand and seal, this twelfth day of August, A. D., 1893; ' “GEORGE CUYLER [l. s.] ” After the death of George H. Cuyler Ills administratrix brought an action against the Connecticut Mutual Life .Insurance, Company, upon the policy. Upon motion of the defendant in that action the/ executors of the last 'will and testament of George-.Cuyler, deceased, were impleaded. Upon the facts as thus, stipulated the trial judge had .held as conclusion of law that George H. Cnyler was, at the time of his death, the owner and holder of said policy of life insurance in the Connecticut Mutual Life Insurance Company, and. that .the plaintiff, as his administratrix, was entitled to the moneys due thereupon. ' To that decision exceptions were duly filed by the executors of George Cuyler. Judgment was entered upon “the decision, and from.that judgment this appeal is taken. Peter A. Delaney, for the appellants. Marie Cohn, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: The trial j ridge properly held that the administratrix of George N. Cuyler was.- -entitled to the moneys due upon the policy. The failure of the executors of George Cuyler to include the policy among the assets of their testator is evidence of the fact that the assignment of the policy was not found among such assets. Under the stipulation it appears that that assignment was executed in duplicate, one of the copies-having been tiled with the insurance company. The other copy was delivered to George Cuyler. The policy having been once shown to be legally owned by George Cuyler there is- a legal presumption of the continuance of ownership until some evidence be'offered of'its retransfer to George N. Cuyler. The possession of the policy itself by George N. Cuyler before the- death'of his father is not,, in my judgment, alone sufficient to rebut the presumption of continuance of ownership of the policy by his father. When in addition to that possession,, however, is shown the failure of the executors of George Cuyler to find among his papers the assignment which was once delivered to him, a legal inference would fairly seem to follow that that assignment had been destroyed and the policy retransferred by the father to the son. This is sufficient in my judgment to establish a prima facie case of ownership in the son, and in the absence of "other evidence is sufficient to sustain the conclusion of the trial justice. The judgment,should, therefore, be affirmed, with costs. Judgment unanimously affirmed, with costs.