
    John P. Harvey, Resp’t, v. Ephraim G. Van Cott, Ex’r, and Estelle R. Wright, App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    1. Insurance (life)—Policy in favor of wife—Disposal by will.
    A policy on the life of a husband in favor of his wife or children passes by the residuary clause of the will of the wife who dies childless leaving the husband surviving, and is subject to the disposition of her executors.
    3. Same—Transfer by executors.
    To confer a good title to the policy to a purchaser from the executor who takes without notice of any fraud, it is not necessary that the executor assumed to sell it in his representative capacity.
    •3. Same—Consent of husband.
    The written consent of the husband is not necessary to authorize the . executors of the wife to assign it,
    4. Evidence—Admission of improper, when harmless error.
    When there is sufficient other evidence to establish a fact, and none to . disprove it, the admission of improper evidence of the fact is not a ground for granting a new trial.
    (Merwin, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered on report of referee.
    
      
      E. J. & W. D. Ball, for app’lt, Van Cott; S. W. Petrie (Charles E. Patterson, of counsel), for app’lt Wright; C. J. Palmer, for resp’t.
   Parker, J.

At the time of her death, Mrs. Mary Yan Cott held a policy of insurance for §2,000 upon the life of her husband Edward B. Yan Cott, payable to her, or her legal representatives, upon his death, or if she be not then living, payable to her children, or their guardian, if under age. She died without children, and leaving her husband surviving her. She left a will, by which she gave certain portions of her “productive personal property ” to her husband for life, and npon his death to her niece, now the defendant Mrs. Wright. “All the rest, residue, and remainder of my estate,” by a residuary clause in her will, she gave to her said niece, and appointed such niece and her husband the executors of such will. The husband sold and delivered such policy to the plaintiff, for a certain sum of money paid him, and for a monument which the plaintiff made and erected upon the ^ot where the wife was" buried. The plaintiff also paid the premiums upon such policy until the death of the husband. Subsequently the husband died, leaving a will in which he appointed the defendant Ephraim Gr. Yan Cott his executor. The plaintiff thereupon demanded from the insurance company the amount of such policy, claiming that he acquired the title thereto under his contract with the husband. Mrs. Wright claimed it as a legatee under Mrs. Yan Cott’s will, or else as surviving executor of such will. Ephraim Yan Cott claimed it as executor of the deceased husband’s estate. The company paid the amount of the policy into court, and this action is now prosecuted to determine to whom, under the circumstances, such policy belonged. The referee found in favor of the plaintiff, and from his judgment both the other claimants appeal.

. In order to determine the question presented on this appeal, we must ascertain the character of the property or interest which Mrs. Yan Cott had in this policy at the time of her death. Prior to 1873, the property which a married woman had in such a policy was a peculiar and limited one. She could not dispose of it in any manner. Eadie v. Slimmon, 26 N. Y., 9 ; Frank v. Mutual Life Ins. Co., 102 id., 266; 1 St. Rep., 681; Brick v. Campbell, 122 N. Y., 337; 33 St. Rep., 520. Her creditors could not reach it. They had no claim whatever upon it Smillie v. Quinn, 90 N. Y., 492; Baron v. Brummer, 100 id., 372. It was, therefore, unlike an ordinary chose in action, to the extent that it was considered as created and appropriated for a specific purpose. By chapter 821 of the Laws of 1873 the prohibition against her disposing of the property was, to a certain extent, removed, and in the event that she had no child, or descendant of a child, she is allowed to dispose of the policy before the death of her husband by a last will and testament, or by a deed duly executed and acknowledged in the manner required to pass her dower right in lands. In the case before us, Mrs. Yan Cott has not, in terms, made any specific bequest of the policy in question. She has not specifically mentioned it as a part of the property bequeathed, but, after giving certain property to her husband, she gives “all the rest, residue and remainder of my estate, of every name and nature,” to her. niece, now the defendant Mrs. Wright. At that time she held and owned the policy, and, being-childless, she had, by force of the statute of 1873, the clear legal right to dispose of it by her will. She does not in any-way except it from the operation of her will (the language of the residuary clause is ample to include it), and we must, therefore, infer that she intended it to pass by such will.

The defendant Mrs. Wright, however, claims that it not only passed by the will, but that she took it in specie, and freed from all claim or control on the part of the executors. Evidently, Mrs. Yan Oott had no such purpose, as she does not attempt to separate the policy from the rest of her assets. She does not mention it as an article especially bequeathed, but she disposes of it, if at all, with the bulk of her estate, and in terms that vest the title in the executors, giving to the residuary legatees only the proceeds remaining ‘¿after the estate is fully administered upon. Pom. Eq. Jur., § 1132. If Mrs. Wright takes it in specie, therefore, she does so by reason of the peculiar character of the property bequeathed. That raises the question whether, notwithstanding the statute of 1873, authorizing her to dispose of it, this policy was- . still such a peculiar kind of property as prevented it from passing, as other assets of her estate would pass, to the executor of the will. The peculiar character of such policies in the hands of a married woman was impressed upon them by the courts on the theory that the statutes authorizing them “looked to a provision for a state of widowhood and orphanage, and that it would be a violation of the spirit of the provision to hold that a wife insured under that act could sell or traffic with her policy as though it were realized personal property, or an ordinary security for money.” Barry v. Equitable Life Assur. Co., 59 N. Y., 593. But in the absence of children, and upon the death of the wife before the husband, both of the reasons upon which that theory is based are removed, and doubtless it was upon that consideration that the act of 1873 authorized the disposition of such a policy by will. At all events when a wife who is childless dies before her husband, their being neither orphanage nor widowhood to be provided for, all reasons for longer impressing upon such property the peculiar characteristics above mentioned have ceased ; and there is neither necessity ' for, nor propriety in, continuing upon such property, in the hands-of a person to whom it is thus lawfully transferred, any different characteristics than attach to an ordinary chose in action.

This conclusion is somewhat confirmed by a decision of the court of appeals in Olmsted v. Keyes, 85 N. Y., 593, where it is held that upon the death of the wife, intestate, such a policy vests in the husband, as survivor. If it was a chose in action such as the husband could claim “jure mariti" when his wife died without disposing of it, all the more would it seem to be such an ordinary asset as an- executor could claim under the residuary clause of a wife’s will. See, also, a reference to. such, case in- Whitehead v. N. Y. Life Ins. Co., 102 N. Y., 152; 1 St. Rep., 344; Walsh v. Mutual Life Ins. Co., 133 N. Y., 408, 419 ; 45 St. Rep., 123. We conclude, therefore, that the policy in question was lawfully transferred by Mrs. Yan Cott by the residuary clause of her will, and., being so transferred, it became subjected to the liabilities which usually control the assets of an estate so bequeathed. Such being the case, her husband, as one of her executors, had power to give the plaintiff a perfect title to it. “ The executor is the owner of the personal property of the testator. The absolute title vests in him, and he possesses tliejMs disponendi in its full force. The honest purchaser is under no duty to see that the moneys are faithfully applied by the executor.” Leitch v. Wells, 48 N. Y., 585, 595. One of two executors possesses the power of selling the personal assets as fully as if botli were to join in the act of transfer. Bogert v. Hertell, 4 Hill, 492, 503 ; Wilder v. Ranney, 95 N. Y., 7; Barry v. Lambert, 98 id., 300, 308. The purchase of a monument for the deceased was not inconsistent with the proper use of her assets by her executor. Laird v. Arnold, 42 Hun, 136; 3 St. Rep., 376. Therefore, there is no fact appearing that discredits the good faith of the plaintiff in dealing with the executor for the purchase of the policy. It is said that the husband did not assume to sell it as executor. True, there was some doubt expressed as to whom it belonged, but we cannot say that the plaintiff did not rely upon his authority as executor to give good title to the policy. The title to the policy was believed to be in him, either as executor or as owner in his own right, and in either event a sale and delivery by him would give good title to it, so long as there was nothing to notify the purchaser that the sale was being made in fraud of the estate. The consideration that was paid for the policy could be applied to either the estate or to the husband personally, as their respective rights on a final settlement of his accounts would require, and therefore nothing showed the plaintiff that the husband was acting in fraud of his trust.

It is claimed, however, that the policy could not be transferred by Mrs. Yan Cott’s executors without the written consent of the* husband, and, as no such writing was given, the plaintiff acquired no title, and Mrs. Wright, as surviving executor, has lawful right to the policy or its proceeds. This claim requires us to consider the effect of chapter 248 of the Laws of 1879 upon the operation of the act of 1873. As we have seen, the act of 1873 conferred upon a wife the power to assign her policy, or bequeath it, when she had no children, on complying with certain formalities in the manner of transferring it. The act of 1879 conferred upon her full power to assign it in any manner, even though she had children, provided her husband consented in writing to the transfer. The statutes are not inconsistent. Full effect can be given to the last one without repealing or limiting the effect of the prior one. A married woman may still, without the consent of her husband, bequeath her property, provided she has no children. If she has children,.she is not aided by the act of 1873, and cam only dispose of it by bringing herself within the provisions of the act of 1879. The latter act, therefore, was passed for the benefit of those wives who had children, and was intended to extend, rather than limit, the power of married women to dispose of such policies. Certainly, if it was not intended to prohibit a married woman, .who had no children, from bequeathing her policy without the consent of her husband, it surely should not be construed as limiting the right of one to whom she bad thus lawfully bequeathed it. It is true that the statute of 1879 provides that, in case of her death, it may be disposed of “by her legal representative, with the written consent of her husband,” but such provision is given its full meaning if it be held to apply to those cases when the wife has died without ■ in any manner disposing of the policy. It seems very clear that the act of 1879 was not intended to repeal or limit the power of disposition given to married women by the act of 1873. Assuming that, it would be a forced and unreasonable construction to hold that under the provisions of the later act the person to whom it is thus lawfully assigned cannot himself transfer it without the written consent of the husband.

The statute of 1873 expressly provides that the person to whom the policy is so transferred, under the provisions of that act, shall acquire the same rights in respect thereto as such married woman would have had in case she survived her husband, and we hold that this provision is not repealed or modified by any provision in the act of 1879. It follows, therefore, that the executors of Mrs. Yan Cott's will took title to the policy in question, and the absolute right of disposing of it, unaffected by any provision of the act of 1879, and that no written consent of the husband was necessary to authorize them, or either of them, to assign it. This leads us to the conclusion that the plaintiff acquired a good title to the policy in question, and that the judgment in his favor should be affirmed, unless there was some error committed on the trial, in the admission of evidence, that requires us to order a new trial.

The error complained of is that several persons were allowed to testify that the executor Edward B. Yan Cott, at various times after the alleged sale of the policy to the plaintiff, told them that he had so assigned it, and the consideration which he received for it. The view which we have taken above entirely excludes his executor, Ephraim Gr. Yan Cott, from any interest in the policy, and hence the receipt of such evidence was quite unimportant as to him. But the defendant, Mrs. Wright, asa surviving executor, had the right to challenge the fact of the transfer of this policy to the plaintiff.

In this capacity, she was acting for the estate, seeking to recover against the plaintiff assets which she claimed belonged to the estate. Therefore, she had the right to except to any evidence tending to prove such transfer that was not legally admissible as against the estate. The evidence complained of tended to prove the transfer by the declaration of her co-executor as to what he had done regarding such transfer. They were not made by him while acting in th¿ discharge of his duties, and were in no sense part of the res gestes. They were, therefore, not admissible, as against the estate, Church v. Howard, 79 N. Y., 415; Davis v. Gallagher, 124 id., 487 ; 36 St. Rep., 461, unless the fact that the executor is since dead takes them from the general rule. It may be that such fact rendered the evidence admissible, within the rule given in Schenck v. Warner, 37 Barb., 262, Steph. Dig. Ev., arts. 25, 28, and Livingston v. Arnoux, 56 N. Y., 507, but we prefer to put our decision upon the ground that the admission of such evidence worked the defendant Wright no harm. If all the declarations improperly admitted were stricken out, there is still abundant evidence in the case to show that the plaintiff procured the policy in the manner in which he claims’ he did, and there is not a particle of evidence in the case to dispute it. There is really no conflict over that question, and for that reason we conclude that the admission of such declarations is not a ground for granting a new trial. Matter of Eysaman, 113 N. Y., 70, 71; 22 St. Rep., 136. The same considerations apply to the exceptions taken to the admissions made by Mrs. Wright, so far as any of such rulings were erroneous. On the whole case, we conclude that the judgment appealed from must be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurs; Merwin, J., dissents.  