Opinion
February 5, 1996
Appeal from the Surrogate's Court, Orange County (Slobod, S.).
Ordered that the order and decree is reversed, on the law, with costs payable by Icelene Barrett personally, and the motion is denied.
Icelene Barrett shot and killed her husband, Richard Barrett, and was indicted for murder in the second degree. At trial, she claimed to have acted in self-defense. Although she was convicted of manslaughter in the first degree, this Court reversed her conviction based on certain erroneous evidentiary rulings and dismissed the indictment with leave to the People to re-present (see, People v. Barrett, 189 A.D.2d 879). Upon representation, the Grand Jury did not return an indictment.
Mrs. Barrett was the named beneficiary of the decedent's life insurance policy, the proceeds of which had been turned over to the decedent's estate pursuant to an order entered in an interpleader action. The coadministrator of the estate subsequently commenced this proceeding to judicially settle her final account and sought to distribute the proceeds of the policy to the decedent's children. Mrs. Barrett filed objections to the account and moved for partial summary judgment, contending that she was entitled to the proceeds of the policy.
A beneficiary of a life insurance policy forfeits the right to the proceeds if he or she intentionally kills the insured (see, Riggs v. Palmer, 115 N.Y. 506, 512; Boatwright v. Hartford Ins. Group, 64 A.D.2d 262, 263). However, if the beneficiary acts in self-defense, there is no forfeiture (see, Mahar v. Metropolitan Life Ins. Co., 260 App. Div. 961; Matter of Loud, 70 Misc.2d 1026, 1027).
In this case, there is an issue of fact as to whether Mrs. Barrett acted in self-defense. Neither the reversal of her conviction in the criminal action based on erroneous trial rulings nor the Grand Jury's decision not to return a second indictment established as a matter of law that she was not criminally responsible for the decedent's death for the purposes of this civil proceeding (see, People v. Estes, 202 A.D.2d 516, 517; People ex rel. Pickett v. Ruffo, 96 A.D.2d 128, 129-130). Consequently, the Surrogate erred in granting the motion. The issue of fact as to whether she acted in self-defense must be resolved at trial.
The petitioner's contention that the Surrogate should have directed Mrs. Barrett to consent to the unsealing of the record in the criminal case is not properly before us on this appeal as the petitioner never appealed from the order of the Surrogate's Court denying her application. Santucci, J.P., Altman, Friedmann and Florio, JJ., concur.