
    In the Matter of the Estate of Edward Connors, Late of the City of Watervliet, County of Albany, N. Y., Deceased. Josephine B. Miller, Appellant; Daniel B. Dwyer, Administrator, etc., of Edward Connors, Deceased, Respondent.
    Third Department,
    January 15, 1936.
    
      Byrne, Jeram & Casey [Joseph P. Keenan of counsel], for the appellant.
    
      Tierney & Kenney [Thomas V. Kenney of counsel], for the respondent.
   Hill, P. J.

Seven industrial policies of insurance issued on decedent’s life are the subjects of a discovery proceeding (Surr. Ct. Act, § 205) which has been had in Albany County Surrogate’s Court. The appeal is from the decree which directs that appellant deliver all the policies to the respondent, the administrator of the estate.

A sister of the appellant originally was named beneficiary in each of the poEcies. She died about eight months before the insured. She is referred to in the record as Mary. He had Eved with Mary untfi her death. The day after her death he deEvered the poEcies to the appeEant saying that he wished her to have them and to be the beneficiary thereunder the same as Mary had been, and that he wished to Eve with her the same as he had Eved in Mary’s home. One of these poEcies was issued by the MetropoEtan life Insurance Company, four by the John Hancock Life Insurance Company and two by the Prudential Life Insurance Company. After the gift, insured made formal appEcation to have appeUant’s name inserted as beneficiary in the MetropoEtan poEcy. For some reason this was refused by the company. The agent of the Hancock Company stated that about a week before insured died he said he wished to change the beneficiary in his poEcies, as Mary had died, and he desired appeEant to be the beneficiary, and requested the agent to come to his residence some night and make out the necessary papers to effect the change. The appellant says that she spoke to a clerk in the Prudential office as to the change of beneficiary at the time that she was paying the premium on the poEcies, and was told that as she paid the premiums that was aU that was necessary.

The surrogate, discussing the evidence in bis opinion, suggested that the attempts by the insured to change the poEcies so that appellant would be the named beneficiary indicated that he had not divested himself of ownership of the poEcies and that such acts were inconsistent with the claimed earEer gift. I am unable to draw that inference. If he had given the poEcies to the appeEant, it was oiEy natural that he should seek to effectuate his gift by simpEfying the coEection of the poEcies by his donee after his death. A gift is proven.

These poEcies may be transferred by gift. (Donahue v. New York Life Insurance Co., 259 N. Y. 98.) If there be question as to the ability of appeEant to coEect the proceeds from the several companies, it is not now before us.

The decree of the surrogate should be reversed and the matter remitted, with direction that the surrogate enter a decree dismissing respondent’s petition.

Rhodes, McNamee, Bliss and Heffernan, JJ., concur.

Decree reversed and matter remitted to the surrogate, with direction that the surrogate enter a decree dismissing the respondent’s petition, with costs to the appellant against the respondent.  