In re the Judicial Settlement of the Accounts of Hammer

Schulz, S. It appears that the decedent left no wife, no children, no representatives of a child, no next of kin and no children of his deceased wife, him surviving, and that he died possessed of personal property only. His wife, who predeceased him, left a sister, two brothers, nephews and nieces. It is contended that under subdivision 16, section 98, of the Decedent Estate Law (being Laws of 1909, chap. 18 as amd. by Laws of 1913, chap. 489 and constituting Consol. Laws, chap. XIII) decedent having left no next of kin of his own, the next of kin of his wife Eachel Fox, should be deemed his next of kin for the purposes therein referred to. This subdivision is as follows: ‘ ‘ If there be no husband or wife surviving and no children, and no representatives of a child, and no next of kin, and no child or children of the husband or wife of the deceased, then the whole surplus shall be distributed equally to and among the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this article or in chapter eighteen of the code of civil procedure; but such surplus shall not, and shall not be construed to, embrace any personal property except such as was received by the deceased from such husband or wife, as the case may be, by will or by virtue of the laws relating to the distribution of the personal property of the deceased person.” It will be noted that by its terms the meaning of the word “ surplus ” is limited so as to embrace only such [195] personal property “ as was received by the deceased from such husband or wife, as the case may be # * Upon the hearing before me, I reserved my decision upon a motion to strike out the testimony of one of the witnesses, namely, Bertha Alexander. That motion I now deny and award an exception to the attorney for the accountant. With all of the testimony before me, however, I cannot find that any of the property of which the decedent died possessed was received by the decedent from his wife. There appear to be only three items as to which the slightest basis for such a contention might be claimed. In two policies upon the life of the decedent, his wife is stated to have been the beneficiary. It was provided that copies of these policies might be offered in evidence in lieu of the originals, and one of the same has been thus offered. If the deceased wife was the absolute beneficiary in the said policies and had a vested right in the death benefit, that right would have passed to her husband upon her death (Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 347), and upon the latter’s death it would have become part of his estate. Olmsted v. Keyes, 85 N. Y. 593; Walsh v. Mutual Life Ins. Co., 133 id. 408; Waldheim v. John Hancock Life Ins. Co., 8 Misc. Rep. 506. Under, such circumstances it might become necessary to consider whether the property received from a deceased wife through the operation of the jus mariti (Gerber v. State Bank, 167 App. Div. 263 and cases cited) would come under the subdivision quoted. But under the policy in question this is unnecessary. The latter is an industrial policy and contains the following :clause: “ In the event of the decease of the insured j* * * payment of the amount due hereunder will be ¡made * * * to the beneficiary, if living, last nomi [196] nated, whether in the proposal herefor or in any written amendment thereof filed with and approved by the Company; bnt the Company may make payment to the Executor or Administrator of said insured, or to any relative by blood or connection by marriage, or to any other person in the judgment of said Company equitably entitled to the same by reason of having incurred expense in -any way on behalf of the insured for burial, or for any other purpose; * * Nothing before me indicates who the last “ nominated ” beneficiary is. Assuming, however, that it was the wife of the deceased, which is the hypothesis most favorable to the respondents, it is clearly evident that her interest was merely a .contingent interest (Smith v. National Ben. Soc., 123 N. Y. 85; Southwell v. Gray, 35 Misc. Rep. 740) which would vest upon the prior death of the decedent provided he had made no change in the beneficiary. As the widow died before the deceased, she never became vested with the right to the death benefit. Hence her husband did not receive it from her upon her death. As it was stipulated that the terms of the other policy were substantially the same as the one under consideration, the same reasoning would apply. The other item was a bank account in the Harlem Savings Bank in the name of “ Rachel Fox, trust for Charles H. Fox.” The form of this deposit created a tentative trust revocable at will by the deceased wife at any time before her death. Matter of Totten, 179 N. Y. 112; Matthews v. Brooklyn Savings Bank, 208 id. 508; Matter of Leonard, 218 id. 513, 520; Martin v. Martin, 46 App. Div. 445, appeal dismissed 166 N. Y. 611; Ruet v. Ruet, 28 App. Div. 553. As the wife died before the decedent, the trust became irrevocable upon her death, and the moneys evidenced by the deposit vested in the deceased and were not received by the [197] deceased ‘ ‘ by will or by virtue of the laws relating to the distribution of the personal property of the deceased person.” It follows that the claims of the next of kin of the deceased wife are not tenable and should be disallowed. Decreed accordingly.