
    In the Matter of the Appraisal of the Estate of John D. Parsons, Jr., Deceased, under the Acts Relating to Taxable Transfers. The Comptroller of the State of New York, Appellant; Agnes E. Parsons, as Executrix, etc., of John D. Parsons, Jr., Deceased, Respondent.
    Third Department,
    January 9, 1907.
    Tax — assignment of insurance policies if assignee survive insured — when not liable to transfer tax.
    A policy of life insurance differs from other contracts in that it is not ordinarily intended to benefit the insured, but others after his death.
    Hence, when one owning insurance policies which were originally payable to his estate assigns them to his wife if she survive him and the rights of no third parties have intervened and there is no conflict as to the title to- the policies, they are not subject to the transfer tax on the death of the insured.
    Such an assignment is not an assignment “intended to take effect in possession or enjoyment at or after such death,” as contemplated by the statute. The assignee obtains an immediate right to enjoy the moneys when payable as death losses, even though the assignee’s title may be defeated by her death during the lifetime of the insured.
    The fact that the policies, with assignments'attached thereto, were found in the safety deposit box of the insured, does not show that the duplicate assignments filed with the insurance company were not so filed by the assignee. Under such circumstances the deceased cannot be deemed to have been possessed of the policies at the time of his death, nor does the widow take title to them through his will or the laws of the State.
    Appeal by the Comptroller of the State of Mew York from a decree of the Surrogate’s Court of the county of Albany, entered in said Surrogate’s Court on the 31st day of July, 1906, confirming the appraisal of the estate of John D. Parsons, Ji\, deceased, under the Transfer Tax Law.
    
      Robert E. Steele, for the appellant.
    
      Charles J. Buchanan [Robert E. Whalen of counsel] for the respondent.
   Kellogg, J.:

With reference to the stocks and the policy of insurance in the Mew England Mutual Life Insurance Company, the determination of the surrogate is so clearly right that it is unnecessary to discuss those subjects. ,

With reference to the two policies in the. Connecticut Mutual e Life Insurance Company, the determination requires consideration* Those policies, upon their face, were payable to Mr I P arsons’ estate. At his death, they were found in his safe deposit box. Attached to each policy was an assignment of it (dated October 21, 1903), in consideration of love and' affection, to his wife, if she survived him ; otherwise to his estate. One policy was payable- to the assured if he lived twenty years, and in- the assignment he reserved the cash payment if he lived for that period. The assignments-were executed in duplicate upon blanks furnished by the company, one of which duplicates was filed with the company as required by the policy. The company paid the amount of the policies to-the assignee January 7, 1905, both assuming that- the 'assignments transferred valid title to the policies.

The Comptroller now contends that under section 220 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 284) a tax is payable upon the transfer of those policies upon the theory, that the transfer was (1), by death, or (2), by an assignment to. take effect in possession or enjoyment at the death of the decedent. No one interested in the decedent’s estate, or who had any claim upon him, questions the validity or effect of the assignments. The Comptroller alone objects. The assignments were witnessed by a subscribing witness, and are under seal, and permit us to assume that they are supported by an adequate consideration. (Von Schuckmann v. Heinrich, 93 App. Div. 278.) We, therefore, are not required to treat the assignments as an attempted gift.

At the time of the assignments, the only parties to the contracts, and the only persons interested in them, were the insured and the company. The company was_ interested in having a proper risk, and to see that its premiums were paid. Its only interest in the beneficiary was to know with certainty to whom the money was to be paid. The insured was principally interested in the beneficiary, as he was paying his money for a benefit"to be received after his death by some one in whom he was interested. At the time the policies were obtained the insured could have directed the benefit to be paid to any one he desired, and he had the right, with the • consent of the company at any time to change the beneficiary as he might desire so long as no other person had any property interest in the insurance. When he made the assignment and the duplicate assignments were filed with the company, no one having any conflicting interest, it was equivalent to a change of designation and was considered by him and the company-as such. And it may here be given the same force and effect as though the indorsement had heen made upon the policy by the parties thereto that such change was made. ’ '

It is assumed by the appellant that the assignor lodged the duplicate assignments with the insurance company. The evidence does not show whether this was done' by the assignor or the assignee. There is nothing to show that the assignee herself did not cause the duplicates to be filed with the company. The assignment is found with the company, where the policy required it to be and where we would naturally expect to find it. The only thing throwing any doubt upon the title of the assignee is that the policies were found, with the duplicate assignments attached, in the decedent’s safe deposit box. That is not to be wondered at when we remember that the assignee was the wife of the insured and that he might naturally have the custody of her papers. The State cannot bang a tax upon that circumstance when other facts so clearly point to the rights of the widow.'

A policy of insurance differs from other contracts, as it is hot ordinarily intended to bring a benefit to the insured himself but to others after his death. If this were a conflict between parties having mutual claims upon the insured, or having conflicting interests by assignment or otherwise, the question might require more serious consideration; but as against the State seeking to collect a tax from the beneficiary and thus deprive her of a part of the insurance money, I think the deceased was not possessed of the policies at the time of his death, and that the widow did not obtain ’ title to them through his will or by the laws of the State. The statutes of this State favor and encourage insurance for the benefit of a wife, and the State is at a disadvantage when it seeks to tax such a provision for her, when the company and all others recognize her right to the benefit intended.

■ This is not a case of an assignment “ intended to take effect in possession or enjoyment at or after such death,” as naentioned in the. statute. It was an absolute present assignment of the interest of the assignor in the poljcy. But the policy.was payable at his death, and, therefore, the assignment provided that it was payable to her if she survived him. ' •

The assign mfent of a policy of insurance payable only after the death' of. the insured differs from the assignment of a chose in action, which is payable at some particular time, .It is quite usual in insurance policies that- the beneficiary is named as such if she 'survives the insured. But that does not make it, within the meaning of the Tax Law above cited, a provision to take effect after the death of the assured. She obtains an immediate title and right to enjoy the moneys when they become payable as death losses-. Her title might be defeated by her death during his lifetime.

In Hurlbut v. Hurlbut (49 Hun, 189) an assignment of a policy in substantially the same form • as this was left with the company, and a letter written to the assignee, the daughter of the assured, stating that it had been assigned. It was held that the assignment was effectual as against the creditors of the insured.

In Phipard v. Phipard, (55 Hun, 433) the assuréd attached to the policy'an assignment to his children and deposited it with a safe deposit company, and' spoke of the policy as belonging to the children. Held,, that he was .a trustee for the children.

In Grogan v. U. S. Industrial Ins. Co. (90 Hun, 521) the insured executed a paper requesting and authorizing the company in case of his death before: the death of the plaintiff to pay the moneys to her. The instrument was filed in the county clerk’s office arid it was held to be a legal' assignment.

In McDonough v. Ætna Life Ins. Co. (38 Misc. Rep. 625) it was held that filing an assignment by the insured with an insurance company was a valid transfer of the policy.

I am satisfied that no transfer tax is assessable on account of these policies and that the decree of the surrogate should be affirmed,, ■with costs.

Decree unanimously affirmed, with costs; Parker, P. «L, not v.oting, not' being a member of this court at the time this decision was handed down.  