
    Henry W. Leonard, as Executor, etc., of Antoinetta Harney, Deceased, Appellant, v. William H. Harney, Respondent, Impleaded with Others.
    
      Insurance — when the amount of the policy passes to the legatee named in the will of the assured and may be recovered by such legatee — an action therefor,- brought within one year, is not premature — effect of a judgment therefor- by the legatee ' suing in her capacity as executrix..
    
    An application by one William Harney for a policy of life insurance stated that the beneficiary was “To whom I may direct in niy will” and “in behalf of and for the benefit of my estate as I may direct in my will.” The policy issued thereon was made payable “to William A. Harney (the Beneficiary under this policy), or to the legal representatives or assigns of said Beneficiary.” The insured was married at the time the policy was issued, but his wife having subsequently died, he married again and died leaving a will by which he bequeathed to his second wife the policy,- subject to the rights of a person to whom he had assigned it as security for an indebtedness. The will spoke of the second wife in the highest terms and appointed her sole executrix.
    After making due proof of loss, the wife in her individual capacity commenced an action against the insurance company to recover the amount of the policy, making par-ties defendant the person to whom the policy had been assigned and a son of the insured who had notified the insurance company not to pay the plaintiff the amount of the policy. Upon payment into court by the insurance company of the amount of the policy, out of which sum so deposited the creditor was subsequently paid the amount of his claim, the action was discontinued as to the insurance company and the creditor. The trial court dismissed the complaint on the ground that the policy was a part of the common assets of the insured and was enforcible only by his personal representative.
    
      Meld, that, taking into consideration the application for the policy, the policy itself and the will, it was evidently the intention of the insured that the policy should be paid to the plaintiff individually and not as executrix, and that the words “legal representatives" contained in the policy must be construed in subordination to such intention;
    That the objection that, inasmuch as an action for the payment of a legacy cannot be' commenced until after the expiration of one year from the granting of letters testamentary, the action was prematurely brought was untenable, as the action was not brought against the executor for the payment of the legacy but against the insurance company for the amount of the policy.
    
      SSenible, that the fact that, after judgment was entered against the wife in the action brought by her in her individual capacity, she brought an action as executrix praying for a judgment that she was entitled as executrix to the balance of the sum deposited in court, and obtained a judgment to that effect, under which it was paid to her, would not estop her from prosecuting an appeal from the judgment entered against her in the action brought by her individually.
    Appeal by the original plaintiff, Antoinetta Harney, from a judgment of the Supreme Court in favor of the defendant William H. Harney, entered in the office of the clerk of the county of Kings •on the 15th day of January, 1900, upon the decision of the court, rendered after a trial at the Kings Cou'nty Special Term, dismissing the complaint.
    The appeal was argued June 7, 1900, and on June 29, 1900, the original plaintiff died. It was not until June 15, 1901, that an order was entered substituting the present plaintiff in her stead;
    
      James Stikeman, for the appellant.
    
      James E. Chandler, for the respondent.
   Goodrich, P. J.:

On February 3, 1887, William Harney applied to the Provident Savings. Life Assurance Society of New York for an insurance of $10,000. The application contained the following:

8. Name in full of the beneficiary for whose benefit the insurance is applied for. To whom I may direct'in my will. * * I hereby apply to the Provident Savings Life Assurance Society of New York for an insurance, of Ten (10) thousand dollars payable, at my death * * * in behalf of and for the benefit of my estate as I may direct in my will.”

The policy was issued on the next day and contained the promise of the assurance society “ to pay to William A. Harney, (the Beneficiary under this policy) or to the legal representatives or assigns of said Beneficiary,” the sum of $10,000.

The insured was married-at the time of the issuance of the policy, but his wife died in July, 1893. He married the plaintiff in August, 1894, and died in November, 1898. He left a last will, dated December 18, 1894, in whidh he bequeathed to his wife, Antoinetta Harney, the plaintiff, the policy in question, subject to the rights of one Jaquith under an assignment.. ■

In November, 1891, the insured assigned to Jaquith the policy of insurance as security for indebtedness, which at the time of his death amounted to $7,391.92.

The will contained' a provision as follows: “ Third. Inasmuch as my children are legatees to a large amount under the last will of my father I have made no further provision for them in this my will, but have made the provisions herein for my wife, as I know her to be one of the best of wives and one of the noblest of women, and deserving the respect and advice of all who may grieve when my death occurs.”

He also appointed his wife sole executrix.

The plaintiff made due proof of loss and notice of the death of the assured to the company in December, Í898, and in March, 1899, commenced the present action against' the assurance society to recover the amount of the policy. She made Jaquith a 'defendant, alleging that he was a creditor of the assured to about the amount already stated. She made William H. Hárney, a son of the insured, a defendant upon the allegation that he had given notice to the assurance society not to pay the plaintiff the amount of the policy, and she asked judgment that the amount due Jaquith should be ascertained and paid, and that she recover the residue of the amount due under the policy. On May 1,- 1899, an order was made giving the assurance society leave to pay into court by depositing with the People’s Trust Company of the borough of Brooklyn $10,000, the amount of the policy, and be relieved from liability thereunder. On the fifth of May the money, $10,125, having been thus deposited, the action was discontinued against the assurance society. On May ninth an order was made directing the trust company .to pay $7,391.92 to the defendant Jaquith and directing the discontinuance of the action against him. Thus there was left in the court, on deposit with the trust company, $2,733.08.

The court dismissed the complaint on the following ground: “ From the contract of insurance, which includes the application therefor and all the surrounding circumstances, I am led to the conviction, and consequently so find, that at the assured’s death the policy, subject to the creditor Jaquith’s rights therein, was a part of his common assets, and as such properly belonging to and enforceable by his personal representative, the executrix.” A judgment being entered thereon, this appeal is taken.

There is also a motion to dismiss the appeal, based on the following facts: On January 8, 1900, the plaintiff, Antoinetta Harney, commenced an action in the Supreme Court, as executrix of the last will of her husband, against William H. Harney, the present defendant, alleging the facts connected with the fund remaining on deposit with the People’s Trust Company, $2,726.35, and praying for a judgment that she was entitled to such deposit with such interest as it might earn, and that said trust company pay the same to her. The defendant demurred; the demurrer was overruled and an interlocutory judgment entered, directing the payment of the deposit to the plaintiff as executrix. On the argument of the motion and of the appeal, it was stated that the deposit had been paid to the plaintiff .as executrix. The motion to dismiss the appeal was made on the ground that since the appeal was taken the plaintiff and appellant had obtained possession of the fund ón deposit with the People’s Trust Company of Brooklyn under a judgment in the action, and, therefore, had acquiesced in the judgment rendered below, which was that the said deposit was a common asset of the estate of which she is the executrix, and that she was entitled to such deposit in her representative and not in her individual capacity. The motion to dismiss the appeal should be denied for reasons which will hereafter appear.

The appeal from the judgment requires an examination' of the evidence in order to ascertain in the first place what was the intention of the testator, at the time of the issuance of the policy,, as to the character of the fund, the method of its disposal and the designation of the person to he benefited. This search for intention, however, as to the ultimate disposition of the fund is not to be confined excluT sively to what occurred at the time of the issuance of the policy, provided his intention then was that the fund should become a part and an asset of his estate to be disposed of by will, or in case of intestacy, according to the law in such case provided.

The application clearly expresses the intention of the assured that the policy was to be issued for the benefit of his estate to be disposed ■ of as he might direct in.his will; and the policy was payable to the “ legal representatives or assigns of said Beneficiary,” thus indicating by the use of the latter words his design to retain control up to the time of his death.

There is nothing in the record to shoiv that the assured ever made any will other than the one to which we have referred, which is dated subsequently to the death of his first wife, who was living at the date of the policy, and also to his second marriage. Turning now to this will,.his intention as to the disposition of the amount of insurance is shown by the bequest to the- plaintiff, especially in view of-its emphatic reference to his second wife. Taking into consideration the application, the policy and the will, the intention of the deceased may be clearly .derived,, namely, that the policy was obtained for the benefit of his estate, that he should retain the control as long as he lived, and that the fund was to' be disposed' of as an asset of his estate as he might direct by will. That direction was. the bequest to the plaintiff. The terms of the will exclude the idea that any of his children were to receive any portion of the amount. , The' appellant, however, contends that the policy must control, and the court found that the words “ legal representatives” therein must be given their ordinary meaning,, and that those words indicated that the policy was to be payable to the plaintiff as executrix and not individually. We think this was an erroneous decision and our view is fortified by the authority of Griswold v. Sawyer (125 N. Y. 411) and Sulz v. M. R. F. L. Association (145 id. 563). In the former case the court held that while the strict, technical meaning of the words legal representatives ” is administrators or executors, and they must be so construed in the absence of anything showing a different intent; as they are not always used in this sense, it is the province of construction in any case to ascertain the sense in which they were used,-and that for that purpose the subject-matter and the surrounding circumstances, as well as the language used, may be considered. Applying the doctrine announced in these cases to the facts as we have stated them, it follows that the plaintiff is the owner of the fund in her individual capacity.

This result may seem inconsistent with the'fact that after the entry of the judgment here appealed from the plaintiff brought an action as executrix against the defendant William H. Harney to adjudge her as executrix to be entitled to the fund, and that she has obtained such a judgment in that action. That fact appears only in the moving papers on the motion to dismiss the appeal, and forms no part of the record on this appeal.

In addition to this, it may be said that in the argument of counsel a confusion of ideas results from the fact that the identity of Mrs. Iiarney individually is'not separated from her identity as executrix. These are two separate entities, totally distinct. This will be made evident if we assume that not Mrs. Harney as executrix but some other person in such capacity had brought the second suit and obtained judgment therein. The executor, whether Mrs. Harney or another person, would be estopped as executor to deny that he had come into possession of the fund in his representative capacity, but Mrs. Harney as an individual is no more estopped by her judgment as executrix than she would be if any other person as executor had brought the action in which the judgment was obtained. (Big. Estop. [5th ed.] 130, 131; Rathbone v. Hooney, 58 N. Y. 463, 467.) The effect of that judgment is that the fund has been reduced to the possession of the executrix of the will, and upon a final accounting before the surrogate the judgment in the present action may be introduced as evidence that Mrs. Harney individually is entitled to the money asa legacy under her husband’swill, provided there are no claims o.f creditors of the deceased reducing the am'ount.

■ The appellant also contends that the action is prematurely brought,, and that inasmuch as the plaintiff sues as legatee for the payment of the legacy under -the will, such an action, under section 1819 of the Code of Civil Procedure, cannot bd commenced until after the expiration of one year from the granting of letters testamentary. The answer to this is that tlie action was not brought against an executor for the payment of a legacy, but "against the assurance society, for the amount of the policy. The- section refers solely to an action against an executor, for the recovery of a legacy. Its purpose was to. enable the executor to realize the assets and adjust the liabilities of- the estate before he could be vexed by suits of legatees. The section is the complement of section 2721, which forbids the payment by an executor of any legacy until one year after the grant of letters.

We are of opinion that- the judgment should be reversed, and, as the result depends on the documentary evidence, that a final judgment should be ordered for the plaintiff.

All concurred, except Sewell, J., not sitting.

• Judgment reversed and judgment ordered for the plaintiff, with costs.  