
    (70 Hun, 475.)
    MATSON et al. v. ABBEY.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    1. Girt—Delivery—When Necessary—Sealed Instrument.
    Where persons who are entitled to money in the hands oí a third person assign all their interest therein by written instrument under seal, and deliver the assignment to the assignee, there is a valid gift and transfer, without an actual delivery of the money.
    
      2. Same—Acceptance.
    Where a gift of money held hy a third person is made by a written assignment under seal, and the assignment is delivered to the assignee^ an acceptance will be presumed.
    3. Same—Action to Enforce Assignment—Statute of Limitations.
    Legatees of the remainder of an estate assigned to plaintiffs' all their interest in certain money in the hands of the executor. More than 21 years after the assignment, and 5 months after the death of the life tenant, plaintiffs brought an action against the administratrix with the will annexed to recover the money. Held, that the statute of limitations did not begin to run until the death of the life tenant.
    
      L Same—Premature Action.
    Where it appears, in such case, that plaintiffs demanded the money of the administratrix with the will annexed, and payment was refused, an action to recover it is not prematurely brought, though it is commenced within less than a year after issuing letters of administration.
    Appeal from circuit court, Rensselaer county.
    Action by Adaline Matson, William A. Matson, Julia A. Mat-son, Rpbert Matson, Charles Matson, and Adaline Brooksby against Louise J. Abbey, administratrix with the will annexed of Austin Matson, deceased, to recover certain money assigned to plaintiffs by devisees of such will. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    George H. Stevens, (A. T. Clearwater, of counsel,) for appellant.
    Townsend, Roche & Nason, (Martin L. Townsend, of counsel,) for respondents’.
   PUTNAM, J.

On December 4, 1863, Austin Matson insured the life of his son Austin Matson, Jr., in the sum of $2,000, payable to himself, his executors or assigns. Austin Matson died December 1, 1864, leaving a will, afterwards admitted to probate by the surrogate of Rensselaer county, in which he appointed his widow, Maria T. Matson, and James N. Ring his executors and trustees. They qualified on the 13th of April, 1865. After specific bequests, the will devised and bequeathed the whole of his estate to his executors, in trust for the purposes therein specified. They were directed to apply the rents and income of the estate to the support of his widow during her life, and the support of his daughter Emily, until her marriage, or the death of his said widow. Among other directions, they were instructed to pay the yearly premium of $78 upon the policy of insurance upon the life of Austin Mat-son, Jr., provided he should not pay the same. He died on the 19 th of February, 1866. The executors of Austin Matson, Sr., thereupon collected, as part of his estate, the $2,000 insurance money. The executor, Ring, died on July 12, 1878, and the executrix, Maria, on the 13th day of June, 1891. Defendant -was appointed administratrix with the will annexed of Austin Matson, Sr., on July 13, 1891. This action was begun on the 20th day of November, 1891. On January 27, 1869, the children and devisees of Austin Matson, Sr., by a sealed conveyance, assigned all their interest in that part of the estate of deceased derived from the life insurance policy aforesaid to the plaintiffs, the widow and children of Austin Matson, Jr. It was shown on the trial that defendant, as administratrix, received, of personal estate, $8,534.26, and no debts against the estate were alleged or proven. Prior to the commencement of this action a demand was made by the plaintiffs from defendant for the sum of $2,000 out of the estate of Austin Matson, Sr., so assigned to the plaintiffs, and payment was refused. Defendant insists that there was no valid delivery of the money claimed in this action, and no valid transfer or gift thereof, and hence that the trial court erred in directing a judgment for the plaintiffs.

In fact, it is well settled that to establish a valid gift a delivery of the subject of the gift must be shown, to some person, so as to divest the possession and title of the donor. Young v. Young, 80 N. Y. 422; Beaver v. Beaver, 117 N. Y. 421, 22 N. E. Rep. 940. But we have always understood that a transfer of a claim or chose in action by a written instrument. under seal, duly executed, has the effect to divest the title of the donor in the assigned property, and has the same effect as an actual delivery. The - delivery of the assignment is deemed a delivery of the property conveyed. Thus, in Irons v. Smallpiece, 2 Barn. & Ald. 551, 552, it is said by Abbott, C. J.: “I am of the opinion that by the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or there must be an actual delivery to the donee.” In Fulton v. Fulton, 48 Barb. 581-592, the doctrine stated in the above case is approved, and it is held that: “A gift inter vivas is perfected by delivery of possession of the thing, or delivery of a deed of gift. It is completed, although made without consideration.” See Ham v. Van Orden, 84 N. Y. 257-269; De Caumont v. Bogert, 36 Hun, 382; Hurlbut v. Hurlbut, 49 Hun, 189; Carpenter v. Soule, 88 N. Y. 251. We think, therefore,' the donors, in this case, having duly executed and delivered a written and sealed assignment of that part of the estate of deceased sought to be recovered in the action, that the trial court did not err in finding a valid gift of the claim or money sought to be recovered by the plaintiffs. The gift, being consummated by a delivery of the assignment, could not be revoked. When the writing was received by the plaintiffs, the title to that part of the estate of deceased mentioned therein at once vested in the plaintiffs, subject to the life interest of the widow.

It is suggested by counsel for appellant that there was no proof of an acceptance of the gift by the plaintiffs. But acceptance by the donees, In such a case, may be implied, where the gift, otherwise completed, is beneficial to them. Beaver v. Beaver, 117 N. Y. 421, 22 N. E. Rep. 940.

But the learned counsel for the defendant claims that, if the ' transaction in question amounted to a gift to plaintiffs of the money sought to be recovered in the action, their claim is barred by the statute of limitations. We think this position is not well taken. Under the will of Austin Matson, the widow was entitled to the use and income of all his estate during her life, including that part received from the insurance on the life of Austin Mat-son, Jr. The plaintiffs, therefore, had no claim against the estate until the death of the widow, which occurred on the 13th day of June, 1891. It would seem, therefore, that the plaintiffs’ claim is not barred. Peltz v. Schultes, (Sup.) 19 N. Y. Supp. 637; In re Hodgman’s Estate, (Sup.) 10 N. Y. Supp. 491. The claim of plaintiffs to said money is no more barred than that of the other legatees named in the will of deceased to the remainder of the estate, the life interest of the widow having terminated.

It is also urged by defendant that the action is prematurely brought, being so brought less than one year after the issuing of letters of administration. But plaintiffs’ claim for the $2,000, it is admitted, was presented to the defendant, and rejected by her. Hence the action, if not absolutely necessary, was proper. Sections 2717-2719, Civil Code; Peck v. Peck, 3 Dem. (Sur.) 548; Riggs v. Cragg, 89 N. Y. 479; In re Macaulay, 94 N. Y. 574. We are not aware of any statutory provision, or any reason, why such an action as this, the claim being disputed, cannot be brought at any time after the issuing of letters of administration. Execution can only be issued on the judgment obtained in such an action by leave of the surrogate, and only for such a sum as is properly applicable thereon from the estate. Sections 1825-1827, Civil Code.

We have entertained some doubt as to the propriety of awarding costs against defendant, under the circumstances. But, as this objection is not urged by appellant, we do not deem it necessary to discuss the question. It is doubtful whether sections 1835 and 1836 of the Civil Code apply to such an action, and whether, in an action of this nature, costs cannot properly be awarded under section 3246.

The judgment should be affirmed with costs. All concur.  