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[225 N. Y.]

Opinion, per HISCOCK, Ch. J.

[Jan., in the aggregate a considerable amount. There is no other intelligible evidence tending to support the theory of an assignment. There is some evidence drawn out by counsel for respondents, on his cross-examination, about a paper or notice said to be from the insurance company and on which there was written: "This is payable to my wife, Annie P. Ward or Annie Page Ward, I could not tell you which." But this evidence is so indefinite that it is not cited in any way by appellant's counsel on this argument and we think does not contribute any support to appellant's claim. The policy was never delivered to appellant, it being given as an excuse by the insured that it was pledged with the company; no paper was ever executed and no notice ever given by the alleged assignee to the insurance company or received by her from the latter, and no step was ever taken which was effective to actually accomplish an assignment. Outside of the alleged statement by the insured that the policy was deposited with the insurance company there is no evidence of that fact and the insured never surrendered control over the policy but continued to exercise such control for several years between the date of the first alleged conversation and his death, if in no other way, by making new designations of beneficiaries. Other policies which appellant says were assigned to her by her husband were in his safe deposit box and these were not delivered to her.

The first question which arises pertains to the admission of evidence. As appears, the appellant, in spite of timely objections, was permitted to testify concerning personal transactions between her and her husband for the purpose of establishing the alleged assignment. Subsequently all of this evidence was stricken out as incompetent under section 829 and it becomes necessary to decide which ruling of the trial judge was correct that admitting the evidence, or that striking it out.

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1919.]

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Opinion, per HISCOCK, Ch. J.

[225 N. Y.]

We think the evidence was competent as against the respondents as beneficiaries under the policy. It was thus competent unless it can be said that they derived their "title or interest from, through or under a deceased person by assignment or otherwise," and we do not think that a person claiming money directly from an insurance company by virtue of a designation under a policy can be said to be claiming " from, through or under " the insured in said policy even though the latter made the designation. Of course it must be admitted that in a substantial sense it is due to the act of the insured that the beneficiary becomes entitled to the proceeds of the policy. Without such act the latter would have no claim. What was said by Judge CULLEN in Matter of Dows (167 N. Y. 227, 231) when speaking of title under a power of appointment is quite as applicable in the case of a designation of a beneficiary under an insurance policy. He said: "But whatever be the technical source of title of a grantee under a power of appointment, it cannot be denied that in reality and substance it is the execution of the power that gives to the grantee the property passing under it." Nevertheless with very limited exceptions it has been held that the title of a grantee under a power of appointment comes from the donor of the power rather than from the one who exercises it (Chanler v. Kelsey, 205 U. S. 466, 474), and principles similar to those applied in the case of powers, we think lead to the conclusion that beneficiaries like the respondents secure their money from the insurance company and not from the insured who designated them. The great body of authority makes it plain, by inference at least, that when section 829 speaks of deriving title or interest from, through or under a deceased person it contemplates property or an interest which belonged to the deceased in his lifetime and the title to which has passed by assignment or otherwise

[225 N. Y.]

Opinion, per HISCOCK, Ch. J.

[Jan.,

through him to the party who is protected by the section. These authorities do not contemplate a case where a party claims property from a third person which never belonged to the deceased and which in fact did not come into existence until his death.

No cases have been found in this state directly passing upon this question. The case of Sabin v. Grand Lodge A. O. U. W. (6 N. Y. S. R. 151), which has been cited as so doing, does not in fact do it. It was simply held in that case that on a consideration of the comparative rights of the contending parties evidence of personal transactions with the deceased should not be given, but the court expressly refrains from holding that the general rule was as now claimed by the respondents.

Various cases have been found outside of the state passing upon the question under statutes substantially similar to our own. In Michigan it has been held, somewhat doubtingly in the later cases, that evidence of personal transactions with the insured under circumstances analogous to those existing in this case is incompetent. (Franken v. Sup. Ct., 152 Mich. 502; Grand Camp, etc., v. Savage, 135 id. 459; Wallace v. Fraternal Mystic Circle, 127 id. 387.) But the courts of Kansas, Illinois, Iowa, Pennsylvania and South Carolina have held a contrary view and have decided that a person occupying a position similar to that occupied by the respondents does not come within the purview of such a statute as our own section 829 of the Code. (Shuman v. Sup. L. K. of H., 110 Iowa, 480; Crowell v. N. W. Nat. L. Ins. Co., 140 id. 258; Broadrick v. Broadrick, 25 Pa. Sup. Ct. 225; Hamill v. Sup. Council, 152 Pa. St. 537; Macaulay v. Central Nat. Bank, 27 S. Car. 215; Farrenkoph v. Holm, 142 Ill. App. 336; affd., 237 Ill. 94; Savage v. Modern Woodmen, 84 Kan. 63.) We think, therefore, it was error to strike out this evidence.

But even though it was technical error thus to rule,

1919.]

Opinion, per HISCOCK, Ch. J.

[225 N. Y.]

the question still remains whether appellant could have been helped by the evidence and whether, therefore, its loss was a source of any damage to her. We do not think it was. We think that on all of the evidence produced in her behalf, including that which was stricken out, she failed as matter of law to establish that she was an assignee of the involved insurance policy.

As has been pointed out, the only evidence of assignment cited or relied upon on this appeal consists of statements made by the insured that he had assigned his insurance to the appellant and we do not think that this is sufficient to establish an assignment. It very likely may be that under some circumstances a borrower might make statements respecting a transfer of securities to a proposed lender upon which the latter would be entitled to rely in making loans. But that does not seem to be this case. The appellant could not have been misled by the statements of her husband and there is no element of estoppel involved by virtue of which equity will treat as having been done that which ought to be done. The appellant knew whether an assignment had been made. She was not deceived by her husband's statements. She knew that he had never executed and delivered to her any written assignment of the insurance policy; that he had never in appropriate and effective language made a present transfer of the policy by parol to her; that she had never had possession of the policy, and that he had never done anything to, by or with her, symbolically or otherwise, to give her control of the policy. She had never given to or received from the insurance company any notice indicating transfer of ownership to her and she had no assurances that the insured was not exercising control and ownership over the policy as in fact he did do. Under these circumstances it seems to us that the loose, general statements by the insured that he had made a transfer of the policy were not sufficient evidence to

[225 N. Y.]

Opinion, per HISCOCK, Ch. J.

[Jan.,

establish even an equitable parol assignment to the appellant.

We are not adopting this view on the theory that because this assignment is claimed to have been made by a dead person it can only be established by a different kind and quality of evidence than would be sufficient if the transaction were alleged to have been with a living person, and for which theory support is sometimes supposed to be found in what was said in Rousseau v. Rouss (180 N. Y. 116); Hamlin v. Stevens (177 N. Y. 39); Wallace v. Wallace (216 N. Y. 28) and other similar cases. The rule in any civil case is that the plaintiff must establish his claim by a fair preponderance of evidence. He need do no more than this if his claim deals with a dead person; he cannot do less if he is attacking the rights and property of a living person. The general rule as to weight and quality of evidence is no different in one case than in the other. In applying the rule and test to specific evidence, however, it very likely will and should occur that the triers of fact will more carefully and critically scrutinize evidence offered against a dead person's estate for the purpose of deciding whether it does make the necessary weight and preponderance of evidence, than would be done if the testimony was offered against one who was alive to contradict it. This is what we construe the expressions in the opinions to which we have referred to mean. As was said by Judge CRANE in McKeon v. Van Slyck (223 N. Y. 392, 397), writing upon this subject: In civil cases a plaintiff is never required to prove his case by more than a preponderance of evidence. This is as true of actions against an executor, founded on claims put forward for the first time after the death of the testator, as it is of other actions. No doubt in determining whether the preponderance exists, the triers of the facts must not forget that death has sealed the lips of the alleged promisor. They may

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