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effect, the two clauses of the section were deemed to be inconsistent, and the latter clause, being specific, was deemed to be controlling See Redf. Sur. (5th Ed.) 290. It is to be observed that section 27 of the Revised Statutes, above referred to, was amended by section 3 of chapter 362 of the Laws of 1863 by adding thereto the following:
“This section shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin at the time of his decease."
The section was again amended by section 6, c. 782, Laws 1867, and the words added by the amendment of 1863 were left out. Nor do they appear in the Code. The amendment of 1863 indicated a legislative intention to override the doctrine of the Lathrop Case, and the repeal of that amendment indicated an intention to leare the law as the Lathrop Case put it.
The right of administration, as given to the surviving wife, was a personal one. She was, by the law, one of those entitled to succeed to the personal property. The appellant claims that she had, in effect, renounced her right, or disqualified herself by the agreement with her husband. There was no renunciation effective under section 2663 of the Code. 1 If there had been, there was a right of retraction. Casey v. Gardiner, 4 Bradf. Sur. 13. Nor was the re spondent disqualified under section 2661. It has been held that the withholding of letters from a person who, if not by some cause incapacitated, would be entitled in priority, under the statute, is never justifiable, save in cases where such person is declared to be disqualified by the statute itself. Coope v. Lowerre, 1 Barb. Ch. 46; O'Brien v. Neubert, 3 Dem. Sur. 150. It is not clear that the appellant, in this proceeding, had the right to call on the surrogate's court for a construction and enforcement of the agreement. But if that could be done, and it be assumed that under the agreement the respondent had no right to a distributive share of the estate, still I am inclined to the opinion that under the Lathrop Case, there being no effective renunciation, the respondent was entitled to let. ter's.
The decree or order appealed from should be affirmed. Decree affirmed, with costs. All concur.
(15 Mise. Rep. 60.)
GEOFFROY V. GILBERT et al. (Supreme Court, Special Term, New York County. December, 1895.) LIFE Policy-W10 ENTITLED TO PROCEEDS.
Where a father took out a policy on his life, payable to his daughter four years old, or her "legal representatives," and she married, and died before her father, her husband is not entitled to the proceeds of the policy. Action by a husband, as administrator of his wife, against her father's executor and others, to determine the right to the proceeds
1 Code Civ. Proc. $ 2603, provides that a person may renounce his right to administer an estate by written instrument acknowledged, etc., and tiled in the surrogate's office.
of a policy on the life of the father, payable to plaintiff's wife or her "legal representatives,” the wife having died first. Judgment for defendants.
Fettretch, Silkman & Seybel, for plaintiff.
RUSSELL, J. William R. Clarkson, deceased, in 1868 took out a $10,000 insurance policy in the New York Life Insurance Company upon his own life, payable to his daughter Jennie Clarkson, then four years of age, or her legal representatives. The policy was paid up in ten years, but remained in his custody till his death. His daughter married the plaintiff, and died childless and intestate on the 27th day of June, 1891. The father, whose life was insured, survived his daughter nearly four years, dying on the 16th day of March, 1895. The husband now claims, as the survivor of the wife, the right to the amount of the insurance policy, which amount has been paid into court by the insurance company. The executors claim that the fund belongs to the estate. It needs some patient study to ascertain precisely what rules, as settled by our court of last resort, apply to the solution of a case like this. I am satisfied, however, that it is settled by the decisions of the court of appeals-First, that the taking of a life insurance policy, payable to a wife or child, is not simply a gift, but confers such a vested interest that the insured has no right, after the valid inception of the policy, to destroy their interest by surrender or diversion; second, that such vested interest, however, is of a contingent nature, and ordinarily terminates, as to the person named as beneficiary, with the death of that person, if such death occurs before the decease of the insured. Whitehead v. Insurance Co., 102 N. Y. 144, 6 N. E. 267; U. S. Trust Co. v. Mutual Ben. Life Ins. Co., 115 N. Y. 152, 21 N. E. 1025; Walsh v. Insurance Co., 133 N. Y. 408, 31 N. E. 228. Therefore, if the policy had been payable simply to Jennie Clarkson, her death prior to that of her father would have terminated her interest. But an addition is made to her name, as beneficiary, of the words, "or legal representatives." Primarily, these words signify the executors or administrators of a deceased person. They, how ever, have been construed to refer to blood relations standing as heirs or next of kin, and are held to mean that class of persons where the circumstances indicate such intention. Tillman v. Davis, 95 N. Y. 17; Greenwood v. Holbrook, 111 N. E. 465, 18 X. E. 711; Griswold v. Sawyer, 125 N. Y. 411, 26 N. E. 464. The last-named case arose on the construction of the term as used in a life insurance policy. At the time of the issuing of the policy there were three persons parties to the contract then made, namely, the life insurance company, the insured, William R. Clarkson, and the beneficiary, Jennie Clarkson, a child four years of age. The contract was therefore mainly between the company and the insured, he acting for himself and as agent for his child. At that time there was no prospeet of her contracting a marriage for many years to come. She
did, however, have a father and mother, with the possibility of brothers and sisters in the near future. There could at that time be no distinction between the effect to be given to the term “legal representatives," whether it referred to her next of kin or to herexecutors and administrators, for the latter would only take in a representative capacity for the benefit of the next of kin. In the natural course of human events, the father expected the daughter to outlive him, so that she would receive the benefit of the policy herself, while he did have the contingent clause making the policy payable to her legal representatives in case she should not survive him. That contingency would naturally look to her death before reaching womanhood and marriage. He declares in the policy itself that he pays the premium for her benefit. There was, therefore, in the minds of the contracting parties, an undoubted reference to the next of kin of Jennie Clarkson, as included by the term "legal representatives,” and no thought of a construction which would turn a wise and tender provision for a daughter into a large pecuniary benefit to a stranger in blood, allied to the daughter 22 years later by marriage for only a year and a half. While we do not give so large effect to the wishes and intent of the originator of the insurance fund as in cases of testamentary disposition, yet courts are largely guided, where doubt arises who is the proper beneficiary, by the evident purpose of the father or husband to care for those who are dependent upon him, and if, in so doing, he has paid for an insurance policy, to assume that he provided for the contingency, which might happen, of the beneficiary's not living to enjoy the benefit, by the substitution of those next in interest to him from family ties.
The husband, therefore, does not take jure mariti, for the wife's interest terminated; he does not take as legal representative, for they take by substitution, and the substituted beneficiaries are the next of kin. I am therefore constrained to hold that the hus. band is not entitled to the life insurance fund, and direct the dismissal of the complaint, with costs. The executors of the insured should receive the fund.
Complaint dismissed, with costs.
CARREY V. SPENCER et al.
(Supreme Court, Special Term, Kings County. December, 1895.)
1. CONSTITUTIONAL LAW-INTERSTATE COMMERCE.
Law's Tenn. 1891, c. 52, providing for the separate accommodation of the white and colored races on railroad trains, so far as it applies to interstate passengers, violates the interstate commerce clause of the federal
coustitution. 2. RECEIVERS-LIABILITY IN ANOTHER STATE.
Receivers of a foreign railroad company, appointed by the circuit court of the United States in such foreign stale, may be sued in the courts of New York, where permission was granted to sue them here by the court appointing them.
Action by Ella Carrey against Samuel Spencer, Henry Finck, and Charles M. McGhee, as receivers of the East Tennessee, Virginia & Georgia Railroad Company. Judgment for plaintiff.
E. F. & E. G. Bullard, for plaintiff.
BARTLETT, J. The plaintiff is a colored woman. In December, 1892, she purchased a ticket from the Pennsylvania Railroad Company entitling her to a first-class passage over the route of that company and connecting lines, from New York to Knoxville, Tenn. One of those connecting lines was the East Tennessee, Virginia & Georgia Railroad, then being operated by the defendants, as receivers, under an order of the circuit court of the United States for the Eastern district of Tennessee. When the train arrived at or near the bound. ary of that state, Mrs. Carrey and her three children were compelled, in the middle of the night, to leave the first-class car in which they had traveled from Lynchburg, Va., and to make the remainder of the journey to Knoxville in what is known as a "jim crow car.” This is a car divided into two portions by means of a partition; one portion of the car being intended for white persons, and the other for colored persons. Mrs. Carrey testifies that she was put into the part where smoking was permitted; that there were no other women there, the only occupants being white and black men; and that the car was filthy and dirty. That this was not such transportation as she had the rigbt to demand under her ticket, is too plain for argument. It is equally plain to my mind, from the evidence, that she was forcibly constrained to change from the first-class to the jim crow car, in which she had to travel about 3} hours before reaching her destination. The defendants seek to justify the action of the conductor in requiring her to make the change by reference to an act of the Tennessee legislature passed in 1891, being chapter 52 of the Acts of that year. This statute is entitled “An act to promote the comfort of passengers on railroad trains by requiring separate accommodations for the white and colored races." It provides, in substance, that all railroads in Tennessee, except street railroads, shall furnish equal but separate accommodations for the white and colored races, either by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. Conductors are empowered and required to assign passengers to the car or portion of a car intended for the race to which such passengers belong, and may refuse to carry them if they decline to obey the direction.
Finally, it is made a misdemeanor for any corporation or conductor to fail or refuse to carry out the provisions of the act. Such legislation as this has been upheld where it applies only to railroad trains running from one point to another within the limits of the state by which the law is enacted. In its application, however, to a passenger journeying from one state to another upon an interstate railroad line, it is clearly an invasion of the powers conferred upon congress by the commerce clause of the constitution. Louisville, N. O. & T. Ry. Co.
v. State, 133 U. S. 587, 10 Sup. Ct. 348; Hall v. De Cuir, 95 U. S. 485. The plaintiff was an interstate passenger, and the defendants, by authorizing the Pennsylvania Railroad Company to sell the ticket which entitled her to a first-class passage over their line, recognized her as such. They violated their obligation to furnish her with the stipulated transportation by compelling her to travel in a car which cannot be regarded as first class, in any admissible interpretation of that term. The Tennessee statute affords no legal justification for their course in this respect, and the plaintiff is entitled to recover damages, if receivers are liable in the courts of this state. I think they are thus liable, in view of the fact that the court by wbich the receivers were appointed has expressly granted leave to the plaintiff to sue them here. Judgment for the plaintiff in the sum of $500 damages, with costs.
pre RYAN et al.
(Supreme Court, Special Term, New York County. December, 1895.) 1. EXTRADITION-HABEAS CORPUS-SUFFICIENCY OF PAPERS TO CHARGE CRIME
Under Code Cr. Proc. $ 827, which provides that, when the prisoner in an extradition proceeding from another state shall have been brougbt before a proper tribunal under the warrant of the governor, he shall be informed of the cause of bis arrest, and instructed that, if he claims not to be the particular person mentioned in the warrant, he shall have a writ of habeas corpus to determine that issue. the court, on the hearing on such writ, when in possession of the papers on which the warrant issued, is not restricted to the question of the prisoner's identity, but may de
termine whether the papers charge him with the commission of a crime. 2. SAME-PRESENCE OF PRISONER IN DEMANDING STATE.
In such proceeding it must appear on the face of the papers that the prisoner was in the demanding state when the offense charged was com
mitted. 3. SAME-IDENTITY OF PRISONER-ISSUE OF FACT.
In such proceeding the only question of fact is the identity of the prisoner with the person charged in the papers, and, when evidence to establish it is complete, the court must dismiss the writ of babeas corpus and remand the prisoner,
Proceedings under a writ of habeas corpus to secure the discharge of the relators, Thomas F. Ryan and James Thompson, in custody under a warrant issued by the governor of the state of New York for their extradition to the state of Massachusetts. Writ dismissed.
John R. Fellows, Dist. Atty., and Forbes J. Hennessey, Asst. Dist. Atty., for the People.
M. Meyer, for relators.
BEEKMAN, J. A writ of habeas corpus having been issued in this matter, and a return having beer made, evidence has been taken before a referee; and upon the proofs a motion is now made for the discharge of the relators, who are in custody under a warrant issued by the governor of the state of New York for their extradition to the state of Massachusetts, where they are charged, in proceedings which have been taken before a magistrate of that state, with the commission of felony. Brietly stated, the charge is that on the night of