McGowin v. Menken

• Decision Date: 28 May 1918
• Citation: 223 N.Y. 509,119 N.E. 877
• Parties: McGOWIN v. MENKEN.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 509

119 N.E. 877

McGOWIN

v.MENKEN.

Court of Appeals of New York.

May 28, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

Submission of controversy under Code Civ. Proc. §§ 1279-1281, between Andrew C. McGowin, as administrator of Frank B. Tesson, deceased, and S. Stanwood Menken, as administrator of Alice E. Tesson, deceased. Judgment for the former (177 App. Div. 841,164 N. Y. Supp. 953), and the latter appeals. Affirmed.

R. B. Knowles, of New York City, for appellant.

James G. Dale, of New York City, for respondent.

McLAUGHLIN, J.

Frank B. Tesson and his wife, Alice E., were lost at sea on the 7th of May, 1915, when the Lusitania was sunk. At the time of his death he held three policies of insurance upon his life, issued by the Equitable Life Assurance Society of the United States, each payable, upon his death, to his widow, if living; if not, then to his executors, administrators, or assigns, with the right on his part to change the beneficiary if he so desired. The respective administrators of the estates of Mr. and Mrs. Tesson claimed the proceeds of these policies. The Assurance Society, desiring to be relieved from liability, paid the money into court, and the administrators thereupon, upon an agreed statement of facts, submitted their respective claims to the Appellate Division, which held that Mr. Tesson's administrator was entitled to such fund. Judgment was rendered to this effect, from which Mrs. Tesson's administrator appeals to this court.

In case of the death of two or more persons in a common disaster, there is no presumption either of survivorship or simultaneous death. Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424;St. John v. Andrews Institute, 117 App. Div. 698,102 N. Y. Supp. 808, affirmed, 191 N. Y. 254, 83 N. E. 981,14 Ann. Cas. 708. In the submission the parties agreed it cannot be proved which one survived the other. Under such circumstances, by the express terms of the policies, the proceeds belong to the husband's estate. Mrs. Tesson's right thereto depended upon her surviving her husband. The provision in each policy is that the society will pay, upon receiving proof of the death of Mr. Tesson, ‘$5,000 * * * to his wife, Alice E. Tesson, if living; if not, then to the assured's executors, administrators, or assigns.’ Survivorshipof the wife, therefore, was a condition precedent to her taking. Had her administrator brought an action against the society, he would have had to prove, in order to recover, not only the issuance of the policies, but the death of Mr. Tesson prior to that of his wife. Failing in this, a recovery could not have been had. The same result follows, so far as the claim of her estate is concerned, from the submission. The burden of proving survivorship rests upon her administrator, since his claim is through her. Not being able to make such proof, the proceeds go, as the parties obviously intended they should when the policies were issued, to the representatives of the insured, who take under the policies and not under a survivorship. Dunn v. New Amsterdam Casualty Co., 141 App. Div. 478,126 N. Y. Supp. 229;Fuller v. Linzee, 135 Mass. 468;Hildenbrandt v. Ames, 27 Tex. Civ. App. 377, 66 S. W. 128.

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