
    Lulu Wilson, Individually, and as Administratrix, etc., of Oscar Wilson, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    First Department,
    January 19, 1934.
    
      Charles B. LaVoe of counsel [Tanner, Sillcocks & Friend, attorneys], for the appellant.
    
      Abraham L. Feinstein, for the respondent.
   Townley, J.

The plaintiff, Lulu Wilson, the widow and administratrix of the deceased Oscar Wilson, brought this action to recover the proceeds of two insurance policies issued by the defendant on the life of the deceased. It appears that plaintiff was separated from her husband, who in 1920 married another woman, one Elizabeth Wilson. The latter also claims to be the widow of the deceased. At the time Oscar Wilson died Elizabeth Wilson was caring for him and had been paying premiums on the policies. She. made arrangements for the. funeral and took the. body to Virginia.

The policies were in the. hands of plaintiff. Duplicates were issued some time before the deceased’s death on Ms. representation that the original's were. lost. These were in the possession of the second “ widow.” After the death of Oscar Wilson, Elizabeth Wilson filed proofs: of death and. claimed to b.e Ms widow1. She also showed that she had paid the funeral expenses and arranged for the burial- of her alleged husband.

The policies were made payable to the executor or administrator of' the insured. A “' facility of payment ” clause, however, was incorporated in the policy, wMch reads as follows: “ The Company may make any payment or grant any nonforfeiture privilege provided herein, to the- Insured,, husband or wife-, or any relative by blood or connection by marriage, of the Insured,, or. to any other person appearing to said Company to be equitably entitled to the same by reason of haying incurred expense on behalf of the Insured, or for his or her burial; and the production of a receipt signed by either of said" persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under tMs Policy have been satisfied.” The insurance company paid the proceeds of the policies to Elizabeth Wilson.

The. plaintiff’s claim is based upon the fact that the insurance company, when it. paid Elizabeth Wilson, apparently thought it was paying the widow. The argument based on this occurrence is as follows: Since the company intended to pay the widow, even though it could have made, the payments rightly to the same, person •under the “ facility of payment ” clause,, nevertheless, since tMs clause was not. then mentioned in justification, it must be deemed that the payment to Elizabeth Wilson was made to a stranger. The- true, widow, having since qualified as admimstratrix in tMs State, therefore, is entitled to a second' payment to her.

The insurance company’s contention is that it was authorized to pay the- proceeds- under the “ facility of payment ” clause, and since Elizabeth Wilson was entitled to the money-in any event, the. mistaken idea, wMch the defendant company had, that. Elizabeth Wilson was the true widow is immaterial.-

We agree with- the- defendant’s contention. That tMs is correct seems mamfest. Suppose Elizabeth- Wilson were to return the money wMch- she has received. If thereafter both plaintiff and Elizabeth Wilson made claims on- the insurance- company, the. company would be privileged again to pay Elizabeth Wilson, if it so chose) under the- “ facility of' payment ” clause. Since it has elected to- ratify the- previous1 payment, possibly made under a-mistake of fact, by showing that the money was equitably due Elizabeth Wilson in any event, there is no reason in law to estop the defendant from taking that position.

The determination appealed from and the judgment of the Municipal Court should be reversed and the complaint dismissed, with costs to appellant in all courts.

Finch, P. J., Martin and Glennon, JJ., concur.

Determination appealed from and judgment of the Municipal Court reversed and the complaint dismissed, with costs to the appellant in all courts.  