
    Richard J. Morrison, Public Adm’r, App’lt, v. The Mutual Life Ins. Co. of New York, Resp’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Executors ard administrators — Assets—Life insurance policy.
    Plaintiff brought action to recover the amount of an insurance policy-issued by defendant on the life of one M., who died in Massachusetts and was a resident of Maine. The policy passed into the possession of the administrator appointed in Maine and he sued upon it and recovered judgment, which was paid and the policy surrendered. Held, that the policy never having been within this state could not form any part of the assets of the deceased to which plaintiff acquired title, and that his want of possession thereof was fatal to the action.
    
      Appeal from judgment entered upon decision of court after trial without a jury.
    
      0. F. Hibbard, for app'It; Judien T. Davies, for resp’t.
   Van Brunt, P. J.

In March, 1873, the defendant, at the city of New York, issued to one Joseph E. Miller a policy of insurance upon his life. In September, 1886, said Miller died in the state of Massachusetts, being at the time of his death a resident of the state of Maine, and was at the time of his death in possession of said policy. In November,' 1886, one Chase was duly appointed the administrator of the estate of said Miller in the state of Maine, .and duly received said policy and remained in possession thereof until its surrender as hereinafter mentioned, and served upon the defendant notice and due proof of the death of said Miller, and demanded payment of the amount of said policy, and in November, 1887, began an action against the defendant for the recovery of the amount due on said policy. Service in said action was made in the state of Maine upon an agent of the defendant appointed pursuant to the laws of said state.

In May, 1887, the plaintiff was appointed in New York as administrator of the estate of said Miller, and in June payment of the amount due on said policy was demanded by the plaintiff. In August this action was begun to recover said amount.

In October, 1887, a judgment was rendered in the Maine action and execution issued thereon, and on the 19th of that month the Maine judgment was paid and satisfied, and 'the policy surrendered by said Chase.

Upon the trial of this action the complaint was dismissed on the merits and judgment thereupon entered for the defendants, from which this appeal was taken.

It is claimed by the plaintiff that the case of Holyoke v. Insurance Company, 22 Hun, 75, affirmed without opinion, 84 N. Y., 648, sustains his right of recovery in this action.

An examination of that case, however, we think shows that it is perhaps as direct authority in support of the judgment herein.

In the case of Holyoke v. Insurance Co., one Perkins, a resident of Maine, had assigned a policy of insurance upon his life to one Holyoke, a resident of this state.

Holyoke-having died, letters testamentary were issued to the plaintiff and subsequently letters of administration with the will annexed of the estate of Holyoke were issued in Maine to one .Bonney. The plaintiff received the assignment of the policy, but the policy itself was in Maine and received by Bonney as such administrator ; upon being paid the amount of the policy Bonney .assigned the same to another person residing in Maine, and the action was brought by the plaintiff to recover the amount of the policy in the courts of this state, and the court held that because the policy was in Maine that it there formed part of the property of the testator and belonged to the administrator in Maine.

The policy never having been in this state could not, under the principle of the foregoing case, form any part of the assets of the deceased to which the plaintiff acquired title.

But it is urged that the debtor being here and the administrator-in Maine not being able to sue the debtor, that therefore the other principle announced in the case cited, that if a debtor pays to an administrator of his creditor appointed in the state where he resides he cannot be sued elsewhere, applies. An examination of the case shows, that the ground upon which such a payment is protected is, because the debtor cannot be compelled to pay elsewhere, but the case also holds that such a payment will not be protected if there exists a written contract creating the indebtedness which is not held by the party claiming payment but it is within another jurisdiction. If the plaintiff had possession of the policy in- question then his case would have been identical with that of Holyoke v. Ins. Co., but the want of such possession is fatal to his action.

The following cases, New England Mutual Ins. Co. v. Woodworth, 111 U. S., 138; Holmes v. Remsen, 4 Johns. Ch., 460; Embree v. Hanna, 5 Johns., 101, support the view taken.

The plaintiff never having obtained the title to the policy in question or the right to the possession thereof, cannot maintain this action.

The judgment appealed from- should be affirmed, with costs.

Brady and Daniels, JJ., concur.  