
    Adaline Matson et al., Resp’ts, v. Louise J. Abbey, Adm’rx, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    1. Decedent’s estates—Gift of portion of estate by heirs.
    A testator, who held a policy on his son’s life, died leaving a will by which he gave his estate to executors in trust for the life of his wife, and directed them to pay the premiums on said policy. The son subsequently died, and the executors collected the policy. Thereafter the heirs and devisees executed a sealed conveyance assigning their interest in the proceeds of the policy to plaintiffs, the widow and children of said son. Held, that this was a valid, irrevocable gift, and that when the writing was received the title to that part of the estate vested in plaintiffs subject to the life estate of the widow.
    3. Same—Limitation.
    Plaintiffs had no claim against the estate until the death of the widow, • and hence the statute did not begin to run until her death.
    3. Same.
    Where a claim has been absolutely rejected, an action may be brought upon it at any time after letters of administration are issued. An action brought within a year is not premature.
    Appeal from judgment in favor of plaintiffs, entered upon a decision by the court on a trial without a jury. ■
    
      George H. Stevens (A. T. Clearwater, of counsel), for app’lt; Townsend, Roche & Ñason (Martin I. Townsend, of counsel), for resp’ts.
   Putnam, J.

On December 4, 1863, Austin Matson insured the life of his son, Austin Matson, Jr., in the sum of $2,000, payable to himself, his executors or assigns. Austin Matson died December 1, 1864, leaving a will, afterwards admitted to probate by the surrogate of Rensselaer county, in which he appointed his widow, Maria T. Matson, and James M. Ring his executors and trustees. They qualified on the 13th of April, 1865. After specific bequests the will devised and bequeathed the whole of his estate to his executors in trust for the purposes therein specified.

They were directed to apply the rents and income of the estate to the support of his widow during her life, and the support of his daughter, Emily, until her marriage or the death of his said widow. Among other directions they were instructed to pay the yearly premium of seventy-eight dollars upon the policy of insurance upon the life of Austin Matson, Jr., provided he should not pay the same. He died on the 19th of February, 1866. The executors of Austin Matson, Sr., thereupon collected, as part of his estate, the $2,000 insurance money. The executor, Ring, died on July 12, 1878, and the executrix, Maria, on the 13th day of June, 1891. Defendant was appointed administratrix with the will annexed of Austin Matson, Sr., on July 13, 1891. This action was begun on the 20th day of November, 1891. On January 27,1869, the children and devisees of Austin Matson, Sr., by a sealed conveyance, assigned all their interest in that part of the estate of deceased derived from the life insurance policy aforesaid to the plaintiffs, the widow and children of Austin Matson, Jr. It was shown on the trial that defendant, as administratrix, received of personal estate $8,534.26, and no debts against the estate were alleged or proven. Prior to the commencement of this action a demand was made by the plaintiffs from defendant for the sum of $2,000 out of the estate of Austin Matson, Sr., so assigned to the plaintiffs, and payment was refused.

Defendant insists that there was no valid delivery of the money claimed in this action, and no valid transfer or gift thereof, and, hence, that the trial court erred in directing a judgment for the plaintiffs.

In fact, it is well settled that to establish a valid gift a delivery of the subject of the gift must be shown to some person so as to divest the possession and title of the donor. Young v. Young, 80 N. Y., 422 ; Beaver v. Beaver, 117 id., 421; 27 St. Rep., 405.

But we have always understood that a transfer of a claim or chose in action, by a written instrument under seal, duly executed, has the effect to divest the title of the donor in the assigned property, and has the same effect as an actual delivery. The delivery of the assignment is deemed a delivery of the property conveyed.

Thus in Irons v. Smallpiece, 2 Barnwell & Alderson, 551,552, it is said by Abbott, G. J., “I am of the opinion that by the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift or there must be an actual delivery to the donee.” In Fulton v. Fulton, 48 Barb. 581-592, the doctrine stated in the above case is approved. And it is held that “ a gift inter vivos is perfected by delivery of possession of the thing or delivery of a deed of gift, it is completed although made without consideration.” See Ham v. Van Orden, 34 N. Y., 257-269 ; De Caumont v. Bogert, 36 Hun, 382; Hurlbut v. Hurlbut, 49 id., 189 ; Carpenter v. Soule, 88 N. Y., 251.

We think, therefore, the donors in this case having duly executed and delivered a written and sealed assignment of that part of the estate of deceased sought to be recovered in the action, that the trial court did not err in finding a valid gift of the claim or money sought to be recovered by the plaintiffs.

The gift, being consummated by a delivery of the assignment, could not be revoked. When the writing was received by the plaintiffs the title to that part of the estate of deceased mentioned therein at once vested in the plaintiffs, subject to the life interest of the widow.

It is suggested by counsel for appellant that there was no proof of an acceptance of the gift by the plaintiffs. But acceptance by the donees in such a case may be implied where the gift" otherwise completed is beneficial to them. Beaver v. Beaver, 117 N. Y., 421; 27 St. Rep., 405.

But the learned counsel for the defendant claims that if the transaction in question amounted to a gift to plaintiffs of the money sought to be recovered in the action their claim is barred by the statute of limitations. We think this position is not well taken. Under the will of Austin Matson the widow was entitled to the use and income of all his estate during her life, including that part received from the insurance on the life of Austin Mat-son, Jr. The plaintiffs, therefore, had no claim against the estate until the death of the widow, which occurred on the* 13th day of June, 1891. It would seem, therefore, that the plaintiffs’ claim is not barred. Peltz et al., adm’rs, v. Schultes et al., adm’rs, 43 St. Rep., 216; Matter of Hodgman, 31 id., 479.

The claim of plaintiffs to said money is no more barred than that of the other legatees named in the will of deceased to the remainder of the estate, the life interest of the widow having terminated.

It is also urged by defendant that the action is prematurely brought, being so brought less than one year after the issuing of letters of administration. But plaintiffs’claim for the $2,000, it is admitted, was presented to the defendant and rejected by her. Hence the action, if not absolutely necessary, was proper. Sections 217, 218, 219, Civil Code; Peak v. Peck, 3 Dem., 548; Riggs v. Cragg, 89 N. Y., 479; Matter of Application of Macaulay, 94 id., 574.

We are not aware of any statutory provision or any reason why such an action as this, the claim being disputed, cannot be brought at any time after the issuing of letters of administration. Execution can only be issued on the judgment obtained in such an action by leave of the surrogate, and only for such a sum as is properly applicable thereon from the estate. Sections 1825, 1826, 1827, Civil Code.

We have entertained some doubt as to the propriety of awarding costs against defendant under the circumstances. But as this objection is not urged by appellant, we do not deem it necessary to discuss the question. It is doubtful whether §§ 1835, 1836 of the Civil Code apply to such an action, and whether in an action of this nature costs cannot properly be awarded under § 3246.

The judgment should be- affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.  