
    Salina Olmstead, Appellant, v. Ella Caroline Olmstead, Appellant, Impleaded with Gertrude Olmstead, Respondent.
    Bes adjudícala — action between two persons, each claiming to be the wife of the insured, to recover the amount of a life insurance policy — when a third person entitled thereto in case the insured had no wife is not estopped by a surrogate’s decree deciding that one of the contestants was his wife.
    
    .Salina Olmstead, claiming to be the wife of one James P. Olmstead, brought an action against an insurance company to recover upon a policy issued upon the 'life of the said James P. Olmstead and payable to “Mrs. J. P. Olmstead, wife, -or his lawful heirs." Ella 0. Olmstead, who also asserted that she was the "wife of James P. Olmstead, likewise claimed the fund, and the insurance company thereupon paid the fund into court and substituted Ella 0..Olmstead as defendant in its place. Thereafter Gertrude Olmstead, who was the sister and •only heir at law and next of kin of the deceased, claimed' the fund on the ground that neither Salina Olmstead nor Ella 0. Olmstead was the wife of the insured.
    Upon the trial, Salina Olmstead and Ella 0. Olmstead contested each other’s ■ claim to he the wife of the insured, but Gertrude Olmstead gave no evidence ■upon that subject. The court decided, upon sufficient evidence, that neither the plaintiff nor the defendant Ella 0. Olmstead was the wife of the insured at the time of his death and awarded the fund to Gertrude Olmstead.
    
      Held, that the judgment should be affirmed;
    That the courfwas not precluded from awarding the fund to Gertrude Olmstead because of the fact that, upon an application by Gertrude Olmstead for letters. of administration upon the estate of the insured, the surrogate had determined that Salina Olmstead was his wife, as Ella 0. Olmstead, who was not a party to the proceeding in the Surrogate’s Court and was, therefore, not concluded hy the surrogate’s determination, had successfully contested that fact in the present action.
    Appeal by the plaintiff, Salina Olmstead, and by the defendant Ella Caroline Olmstead, from a judgment of the Supreme Court in favor of the defendant Gertrude Olmstead, entered in the office of the clerk of the county of Erie on the 13th day of January, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, adjudging that the said Gertrude Olmstead is entitled to the fund in controversy.
    Also an appeal by the plaintiff, Salina Olmstead, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of January, 1902, directing that Gertrude Olmstead be made a party defendant.
    
      Frank W. Saunders, for the plaintiff, appellant.
    
      Edward T. Durand, for the defendant, appellant.
    
      Eugene M. Bartlett and Clinton T. Horton, for the respondent.
   Williams, J.:

The judgment should be affirmed, with costs.

The action was originally brought against “ The Locomotive Engineers’ Mutual Life and Accident Insurance Association ” to recover upon a policy of insurance upon the life of James P. Olmstead. The policy was by its terms payable to “ Mrs. J. P. Olmstead, wife, or his lawful heirs.” The plaintiff claimed the fund as the wife of the insured at the time of his death, and brought this action. The defendant Ella 0. also claimed the fund as the wife of the insured when he died, and thereupon the insurance association was allowed to pay the fund into court and to have Ella 0. substituted in the action as defendant in its place. Subsequently the defendant Gertrude claimed the fund as being the sister and only heir and next of kin of the insured on the ground that neither the plaintiff nor Ella 0. was the wife of the insured and that he had no wife when he died, and then she was made a defendant in the case also. On the trial the two women claiming to be the wives of the insured contested each other’s claims, and gave evidence on those issues by numerous, witnesses.

The sister Gertrude gave no evidence on these issues except to make some proof of the laws of Pennsylvania.

The court decided that neither the plaintiff nor the defendant Ella 0. had established her claim to be the wife of the insured at the time of his death, that he had no wife when he died and that his sister was entitled to the fund in suit and judgment was entered upon this decision awarding the fund to her. p The plaintiff claims that the sister Gertrude could not dispute I her claim to be the wife of the deceased by reason of a determina^ ti on of that question by the surrogate in favor of the plaintiff upon an application by Gertrude for administration of the estate of the insured. Even if that is true, still the defendant Ella 0. was not a party to that proceeding and was not bound by the decree of the surrogate therein. She could contest the plaintiff’s claim to be such wife, and she did contest it, and defeated the claim.

The court had no power to find the plaintiff was a wife, when the defendant Ella 0. disputed it on the merits and satisfied the court that the plaintiff was not such wife. We are not called upon to determine what the effect of the decree of the surrogate would have been in this case if Ella 0. had not been a party here. She was and /is a party and had a right to try out this question as to the plaintiff’s J relation to the insured upon the merits, without regard to any ques- ! tion of res adjudicaba between the plaintiff and the sister Gertrude. She has done so, and the finding is against the plaintiff. Must that finding be set aside and the fund awarded to the plaintiff as against the sister, upon the theory of res adjudicaba, because the defendant Ella C. has also failed in her claim to have been the wife of the insured, upon the dispute and contest of the plaintiff on the trial of this action ? It seems to us not. This action as it was tried was one in equity, to ascertain which of these three parties was entitled to this fund. The association had surrendered the fund to the court, and no longer had any interest therein. The sister was only entitled to the fund in ease it was found her brother was unmarried at the time of his death. • She sat by, while the two women claiming to be his wives fought out their respective claims and convinced the court that neither of them was his wife. Upon that finding the fund could not be awarded to either of them. If neither was' entitled to it, then, as a matter of course, it went to the sister, who) was coneededly the only heir and next of kin of the insured. We do not think the decision of the court should be disturbed by reason of any technical rule of res adjudieata between the plaintiff and the defendant Gertrude. The question whether either of these women was the wife of the insured was one purely of fact. The trial court heard all the evidence, saw the two women and the witnesses produced by them. We have ourselves examined the evidence as it is printed in the record, and we are not inclined to disagree with the trial judge in the result reached by him. A discussion of the evidence would not be useful here. We do not think the trial justice was in error in refusing to sustain the defendant Ella C.’s claim to the fund as the person intended as beneficiary, though not actually the wife of the insured. The evidence bearing upon that question was not satisfactory. The insured became a member of the association November 29, 1891, and was then living with the plaintiff. They separated in 1892; the association was organized in 1867, but was not incorporated until March 1, 1894. The present certificate was issued November 28, 1894, and yet the pretended marriage of the insured to Ella C. was not until a year later, December 8, 1896. Under these circumstances it may well be doubted if the membership or present certificate was intended for the benefit of Ella C. They were expressed to be for a wife, and if no wife, then his heirs, and the court very properly that the defendant Ella 0. not entitled to the fund, having fc she was not the wife of the insured.

There were some errors committed by the trial judge in the admission and rejection of evidence, but inasmuch as the action on trial was equitable in its nature, and the errors could not well have influenced the decision made, we think they do not require a reversal of the judgment. Substantial justice has been done, and we think the judgment should be affirmed, with costs.

McLennan, Spring, Hisock and Davy, JJ., concurred.

Judgment affirmed, with costs.  