
    Matter of the Estate of Adolph R. Vandermore.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    Surrogate—Insurance (l£fe)—Money payable to widow under policy, NOT ASSETS op ESTATE—CODE ClY. PRO., § 2717, DOES NOT APPLY— Power to order payment.
    Deceased had taken out a policy on Ms life. The amount insured was made payable “to the said assured, his executors, administrators or assigns for the benefit of his widow, if any.” The money passed into the hands of the executor. Held, upon petition by the widow, that the provisions of Code Civ. Pro., § 2717, did not apply; that this was not a claim of which the surrogate could order payment.- Where there is a beneficiary named in the policy, the insurance money is not an asset of the estate; it belongs to the beneficiary (if at all), not by virtue of the will of the testator, or of any administration of the estate, but by a contract of the company under which they were to pay it to the beneficiary. The executors in such case take the money as trustees for the beneficiary, but they are not trustees under the will; they are trustees under the policy. Hence, they are in no sense testamentary trustees, and the surrogate has no power to compel them to pay over the money.
    
      Jacob W. Clute and A. P. Strong, for petitioner; W. T. L. Sanders, for executor.
   Learned, P. J.

The-question whether the surrogate had jurisdiction to order the executor to pay this money to the petitioner involves an inquiry into the nature of the alleged liability of the executor to her.

The deceased had taken out a policy on his life. The amount insured was made payable “to the said assured, his executors, administrators or assigns * * * * for the benefit of his widow, if any.”

• _ The money has been passed to the executor, and the petitioner is the widow of the deceased.

A question is made whether she is entitled to the money. But without stating the facts on which that depends, we are first met with the question whether hers is such a claim that the surrogate could order its payment, even assuming that it was valid.

In one part of the opinion of the learned surrogate, speaking of the phrase “personal estate” in a certain paper, he said : “It means the estate which goes into the hands of the executor to be administered under the will, and does not include the insurance money.”

Thus he indicated that the insurance money was not a part of the estate which goes into the hands of the executor to be administered under the will.

If this view be correct, it would seem to follow that he would have no jurisdiction over the matter. But he must have considered that as the money was .in the hands of the executor and did not belong to the estate, the estate owed it to the petitioner. For in another place he says that the estate is debtor to the petitioner. And he assumes that he has “ power to enforce the payment of this indebtedness.”

The counsel for the executor insists that if the petitioner’s claim is valid, then the amount received from this policy was not' assets of the estate, to be accounted for under the misdirection of the surrogate. In this we think he is correct.

If there were no beneficiary named in the policy, probably the amount received would be assets. But where there is a beneficiary, we think the amount received is not assets, for it belongs to the beneficiary and not to creditors or legatees; and it belongs to her (if at all) not by virtue of any will of the testator, or of any administration of his estate, but by a contract of the company under which they were to pay it, as she claims, for her benefit. The executors, therefore, have in this particular, if the petitioner is right, no will of the téstator to execute.

The executors in.such a case take the money as trustees for the beneficiary. And they are not trustees under the will. They are trustees under the policy. Hence, they are in no sense testamentary trustees. The surrogate has no power to compel them to pay over the money. Marston v. Paulding, 10 Paige, 40; Woodruff v. Young, 38 Sup. Ct. (31 Hun), 420.

The surrogateplaces his authority on section 2472, subdivision 4 of the Code of Civil Procedure. 'But that authorizes him to enforce the payment of debts and legacies, and the payment and delivery of money or property belonging to the estate.

Now the petitioner’s claim is neither a debt nor a legacy. The liability, if any, to the petitioner did not arise until the receipt of the money, and hence not until after the testator’s death. Hence, it is not a liability of the estate, inasmuch as it was not a liability of the testator. Austin v. Munro, 47 N. Y., 360.

And, as she claims, this money does not belong to the estate. And the concluding clause of the section declares that the jurisdiction must be exercised in the cases prescribed by statute.

Section 2481, subdivision 5, does not extend the jurisdiction. Nor does subdivision 11 of the same section, as its provisions are limited to matters within the cognizance of the court.

The provisions of the statute under which the petitioner seems to have proceeded are sections 2717 and 2718. But these apply to the payment of a debt or a legacy.

There would be a further difficulty if this case were within a debt or a legacy, viz.: that letters were issued October 31, 1885, and the petition was presented January 19, 1886. While a petition by a creditor cannot be presented until six months have expired, and that by a legatee not until a year And, further, a written answer duly verified was filed setting forth facts showing that it was doubtful whether the petitioner’s claim was legal.

The surrogate held that these facts raised only a question of law, and hence he had jurisdiction. If it were necessary to examine this point, we should be doubtful whether this was correct.

But in the view we have taken, section 2717 is not applicable to this claim, and therefore we need not consider the meaning of section 2718.

We have avoided any expression of opinion as to the validity of plaintiff’s claim, and even any statement of the facts on which it is controverted, because we are satisfied that the surrogate was without jurisdiction.

The decree of the surrogate is reversed, with costs below and of the appeal against the petitioner.

Bocees and Landon, JJ., concur.'  