Travelers' Ins. Co. of Hartford, Conn. v. Grant

• Decision Date: 02 March 1896
• Citation: 54 N.J.E. 208,33 A. 1060
• Parties: TRAVELERS' INS. CO. OF HARTFORD, CONN., v. GRANT et al.
• Court: New Jersey Court of Chancery

33 A. 1060

54 N.J.E. 208

TRAVELERS' INS. CO. OF HARTFORD, CONN.,

v. GRANT et al.

Court of Chancery of New Jersey.

March 2, 1896.

(Syllabus by the Court.)

Bill of interpleader by the Travelers' Insurance Company of Hartford, Connecticut, against James J. Grant, administrator of Frank E. McNichols, deceased, and another. Decree withheld, with directions.

This is a bill of interpleader. The contesting defendants are, on the one part, James J. Grant, administrator c. t. a. of Frank E. McNichols, deceased, appointed by the probate court of Stark county, Ohio, January 17, 1894, and, on the other part, Martha E. McNichols, individually and as administratrix of said deceased, who was her husband, by letters issued to her at a date subsequent to January 17, 1894, by the orphans' court of Camden county, in this state. The subject of the contest is the sum of $3, 181.50, paid into court by complainant as the amount due upon two policies of insurance issued by it upon the life of the decedent, and to recover which a suit was brought in an Ohio court by the defendant Grant, as administrator, and, later, another in the supreme court of New Jersey by the defendant Martha McNichols, as administratrix. The decedent died on the 10th of January, 1894, testate of a will which dealt solely with the proceeds of a third policy of insurance, issued upon his life by another company, and wholly intestate as to all other property, including, of course, the policies which produced the fund here in controversy. The latter were, from shortly after the time of their issuance, in the possession of Mrs. McNichols, the defendant, who had her residence in this state. She sued the complainant as administratrix, but claims here both as administratrix and in her individual right, as donee of her husband, the deceased. The domicile of birth and residence, for many years, of the deceased, was in New Jersey. He married and kept house here for many years, with his wife and their children,—four daughters, still living. His business was that of a contractor for public works, and he followed it at a distance from his home, and finally located at Canton, Ohio, and acquired a residence and voted there for two or three years before his death, which occurred there. All the time, however, he maintained his wife and daughters in this state, in a house which he provided for them, and visited them frequently. The first policy in the complainant company was issued July 18, 1885, for $1,000, subject to an annual payment of $32.40, and declared to be payable "to the legal representatives of the assured," and containing a provision "that no assignment of this policy shall be valid unless made in writing, indorsed hereon, and unless a copy of such assignment shall be given to this company within thirty days after its execution; and any claim against this company arising under this policy shall be subject to proof of interest. It is also agreed that the company shall not be held responsible for the validity of any assignment." The second policy was issued June 29, 1891, for $2,000, subject to an annual premium of $79.30, and is declared to be payable to "his [McNichols'] legal representatives or assigns," and contains a proviso that "no assignment hereof will be noticed by this company unless made in writing, the original or a copy attached hereto, and a copy furnished this company immediately on its execution; but this company will not be held responsible for its validity." These policies were, shortly after issuance, sent through the mail by McNichols to his wife, with a letter stating, in substance, that he gave them to her for her own benefit. The letter which accompanied the first policy has been lost, but its contents are satisfactorily proven by both Mrs. McNichols and one of her daughters. That accompanying the second policy has been preserved, and reads as follows: "Canton, Aug. 21st 91. Dear Old Woman. Enclosed you will find Policy of Travelers Ins. Co. on my Life for $2000.00 (two thousand Dollars) & Receipt for first year's Premium. Also Copy of letter acknowledging Receipt of Payment of Premium on the Policy you now have the Receipt was Lost in Transit by Mail. So they Send me copy of letter in Duplucate and will Send me Duplicate Receipt Soon as they can get it from Home Officers. Preserve this letter. & in the Event of anything Happening to me you would have no Trouble in Proving your Claim. This Policy is Entended for you alone. Love to all. H. & P. [meaning "Husband and Papa"]." Creditors' claims to a small amount for debts incurred in this state have been presented to the administratrix here, and claims for debts incurred in Ohio, amounting to about $18,000, have been presented to the Ohio administrator, and allowed by him. The assets of the estate in Ohio, including the policy of life insurance disposed of by the will, amount to from $12,000 to $15,000; showing a deficiency sufficient to absorb the whole of the fund in court, if awarded to the defendant Grant. There are no assets in this state other than the fund here in question. No proof was given as to when any of the Ohio debts originated. A part of them are secured by a mortgage upon lands owned by deceased, and which form a part of the assets above mentioned. A statute of Ohio was put in evidence authorizing a debtor to invest a sum not exceeding $150 per year in insurance on his life for the benefit of his family.

B. F. Haywood Shreve, for Grant.

John F. Harned and S. C. Woodhull, for Mrs. McNichols.

PITNEY. V. C. (after stating the facts). A consideration of the facts shows that the controlling question in the case is whether there was an effectual gift by the husband to the wife of the policies in question, which entitles her, as against the next of kin and creditors, to the fund in court. For conceding, as I think I must upon the evidence, that the domicile of the decedent was in Ohio, yet it was not contended that the letters of administration granted in this state to the widow were void for want of power, but their validity was conceded. The argument was that the Ohio administration must be taken as the principal, and the letters granted here as ancillary merely. But, granting this subordinate position to Mrs. McNichols, it does not follow that the fund must be awarded, without question, to the principal administrator. The policies were found in this state at the decedent's demise, and the foreign administrator did not bring suit here to recover their possession. The fund is in this state. The foreign administrator has submitted to the jurisdiction of this court. The next of kin (assuming that the laws of Ohio designating who shall be considered the next of kin of a decedent correspond with our own) are all residents of this state, and the fund is claimed, as against the next of kin and creditors, by a resident of this state, who is a party to the suit, and has submitted her claim for adjudication in this court. Under these circumstances, I think this court ought not to send this claimant and the next of kin to a foreign tribunal to litigate over the fund. The facts of the case are similar, in the main, to those under consideration in Merrill v. Insurance Co., 103 Mass. 245, except that the questions arose there upon the trial of the suit at law brought by the ancillary administrator against the insurance company pending the suit first brought by the principal administrator in the court of his domicile, and the transfer of the policy was in pledge to secure a debt of the assured of less amount, with written directions by the assured to the pledgee to pay the surplus to the heirs of the insured, who lived in Massachusetts. It was held, after full consideration of the rights of the principal administrator, that the ancillary administrator was entitled to recover. And see Story, Confl. Laws, § 514 et seq.

This brings us to the consideration of the question of the validity of the gift. It seems to be well settled that bonds and other non-negotiable obligations for payment of money may be the subject of a valid gift, and that a delivery of the obligation to the donee, without written assignment, but with a clearly-manifested intention to make a gift, is sufficient to satisfy the rule requiring delivery of the thing given. The sensible rule is that the delivery must be such a tradition as the nature of the subject admits of. And surely the delivery of the formal writing which evidences the debt and forms the foundation of the right of action is the best and only delivery of which the subject is capable. Snellgrove v. Baily, 3 Atk. 214; Duffield v. Hicks, 1 Dow. & C. 1, 1 Bligh (N. S.) 497, on appeal from Duffield v. Elwes, 1 Sim. & S. 239; Veal v. Veal, 27 Beav. 303, 6 Jur. (N. S.) 527, 29 Law J. Ch. 321; Grover v. Grover, 24 Pick. 261. The same has been decided as to savings bank pass books. Tillinghast v. Wheaton, 8 R. I. 536; Camp's Appeal, 36 Conn. 88; Sheedy v. Roach, 124 Mass. 472; Bond v. Bunting, 78 Pa. St. 210. The law is settled in this state, as to promissory notes, in Corle v. Monkhouse, 50 N. J. Eq. 537, 25 Atl. 157, at pages 543, 544, 50 N. J. Eq., and page 157, 25 Atl., by the late Vice Chancellor Van Fleet. The cases cited refer to bonds and notes not payable to bearer, and not assigned or indorsed by the donor. In such cases it is held that, where the strict rules of the common law prevent the donee from suing in his own...