
    (71 Hun, 324)
    HARVEY v. VAN COTT et al.
    (Supreme Court, General Term, Fourth Department.
    September 23, 1893.)
    1. Life Insurance—Disposal by Will—Residuary Clause.
    A policy on the life of testatrix’s husband, payable to her, or, if she be not alive at the time of his death, to her children, passes by a residuary clause of her will; she being childless, and her husband surviving her.
    2. Same—Sale by Executors.
    Such policy is, like other personal property bequeathed by the residuary clause, subject to the control and disposition of the executors.
    8. Same—Character of Sale.
    To show good title in a purchaser from an executor, there being no question of good faith, it need not be shown positively that the executor assumed to sell the property as executor.
    
      4 Same—Transfer by Executors—Consent of Husband.
    Laws 1873, c., 821, permits a married woman, having no children, to dispose by will, before the death of her husband, of a policy on his life, and provides that the person to whom it is so transferred shall have the same rights in it as the testatrix would have had, had she survived her husband. Laws 1879, c. 248, permits her to transfer it in any maimer, even though she has children, provided her husband consent In writing thereto, and in case of her death permits it to be disposed of by her legal representative, with the written consent of her husband. Held, that where a woman without children, dying before her husband, disposes of a policy on his life by the residuary clause of her will, her executors may transfer the policy without the written consent of her husband.
    •5. Admission op Evidence—Harmless Ebbob.
    The admission of improper evidence of a fact is not ground for reversal, where there was other sufficient evidence to establish the fact, and none to disprove it.
    MERWIN, J., dissenting.
    Appeal from judgment on report of referee.
    Action by John P. Harvey against Ephraim G-. Van Cott, executor of Edward B. Van Cott, deceased, and Estelle It. Wright, to determine the rights to a policy of life insurance. Judgment for plaintiff. Defendants appeal.
    Affirmed.
    Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.
    E. J. & W. D. Ball, for appellant Van Cott.
    S. W. Petrie, (Charles E. Patterson, of counsel,) for appellant Wright.
    0. J. Palmer, for respondent.
   PARKER, J.

At the time of her death, Mrs. Mary Van Cott held a policy of insurance for $2,000 upon the life of her husband, Edward B. Van 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 upon 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 lot 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 G-. Van 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. Van •Catt’s will, or else as surviving executor of such wall. Ephraim Van 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. Van 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 27. Y. 9; Frank v. Insurance Co., 102 27. Y. 266, 6 27. E. Rep. 667; Brick v. Campbell, 122 N. Y. 337, 25 N. E. Rep. 493. Her creditors could not reach it. They had no claim whatever upon it. Smillie v. Quinn, 90 N. Y. 492; Baron v. Brummer, 100 N. Y. 372, 3 N. E. Rep. 474. It was therefore unlike an ordinary chose in action, to the extent that it wras 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. Van 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 tune 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. Van Cott 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. Weight 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. Assurance 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 the husband, there 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 án ordinary chose in action. This conclusion is somewhat confirmed by a decision of the court of appeals in Olmstead 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. Insurance Co., 102 N. Y. 152, 6 N. E. Rep. 267; Walsh v. Insurance Co., 133 N. Y. 408, 419, 31 N. E. Rep. 228. We conclude, therefore, that the policy in question was lawfully transferred by Mrs. Van 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 the jus 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 both 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 N. Y. 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. 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 set- - 'dement of Ms accounts would require, and therefore nothing showed ■the plaintiff that the husband was acting in fraud of Ms trust.

It is claimed, however, that the policy could not be transferred Tby Mrs. Van Cott’s executors without the written consent of the husband, and, as no such writing was given, the plaintiff acquired tlo 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 cMIdren, 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 •enc. A married woman may still, without the consent of her husband, bequeath her property, provided she has no children. !f she has children, she is not aided by the act of 1873, and can •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 proMbit 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 had 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 oases 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 provisons of the later act the person to whom it is thus lawfully assigned can-mot 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. Van 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. Van 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 G-. Van 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, as a 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 bad 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 coexecutor as to what he had done regarding such transfer. They were not made by him while acting in the discharge of his duties, and were in no sense part of the res gestae. They were therefore not admissible, as against the estate, (Church v. Howard, 79 N. Y. 415; Davis v. Gallagher, 124 N. Y. 487, 26 N. E. Rep. 1045,) 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. In re Eysaman, 113 N. Y. 70, 71, 20 N. E. Rep. 613. 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.

HABDEN, P. J., concurred. MEBW1N, J., dissented.  