Opinion
January, 1905.
Peter A. Delaney, for the appellants.
Mark Cohn, for the respondent.
The trial judge properly held that the administratrix of George N. Cuyler was entitled to the moneys due upon the policy. The failure of the executors of George Cuyler to include the policy among the assets of their testator is evidence of the fact that the assignment of the policy was not found among such assets. Under the stipulation it appears that that assignment was executed in duplicate, one of the copies having been filed with the insurance company. The other copy was delivered to George Cuyler. The policy having been once shown to be legally owned by George Cuyler there is a legal presumption of the continuance of ownership until some evidence be offered of its retransfer to George N. Cuyler. The possession of the policy itself by George N. Cuyler before the death of his father is not, in my judgment, alone sufficient to rebut the presumption of continuance of ownership of the policy by his father. When in addition to that possession, however, is shown the failure of the executors of George Cuyler to find among his papers the assignment which was once delivered to him, a legal inference would fairly seem to follow that that assignment had been destroyed and the policy retransferred by the father to the son. This is sufficient in my judgment to establish a prima facie case of ownership in the son, and in the absence of other evidence is sufficient to sustain the conclusion of the trial justice.
The judgment should, therefore, be affirmed, with costs.
Judgment unanimously affirmed, with costs.