Opinion
April, 1899.
Frederick G. Smedley, for administrator accountant.
Hawkins Delafield, for respondents.
This is one of the matters that was heard by Mr. Surrogate Arnold, and that has since been submitted to me for decision. The intestate was a resident of New Jersey, and died leaving no descendants. Her husband died subsequently, without having applied for letters of administration. After the death of both husband and wife, a policy of insurance on the life of the wife's father, for the benefit of his children, became payable through the death of the father. Thereupon, one of the next of kin of the wife was appointed her administrator in this state, and, as such, collected certain moneys under this policy. The question now arises on the judicial settlement of the administrator's accounts as to who is entitled to these insurance moneys, the next of kin of the husband or those of the wife. The laws of the state of New Jersey, the wife's domicile, control in this matter. At the hearing, it was established that in New Jersey, the distribution of the personal estate of a married woman dying intestate, without descendants, is governed by the common law. The manner in which the courts of that state construe the common law, as applied to the facts here existing, was not shown. In the event that the wife survives the husband, it is uniformly held that choses in action, which were not reduced to possession by the husband, belong to her absolutely. 2 Kent's Com. 135. The disposition of unreduced choses in action of the wife where the husband survives, has given rise to some conflict. It has been held that the surviving husband can only take the choses in action of his wife by reason of his sole right to administer, and that if he fails to so administer and reduce these choses to possession, they belong upon his death, to his wife's next of kin. 2 Williams, Exrs. (7th Am. ed.) p. 75. On the other hand, it is said that upon the death of the wife the husband takes her property, whether in action or in possession, not as administrator but jure mariti, so that if he omits to recover her choses in action during his lifetime they will belong to his next of kin, and, although her representatives may be entitled to administer upon such choses, they will hold the proceeds thereof as trustees of the husband's next of kin. 2 Williams, Exrs. (7th Am. ed.), p. 69; 2 Kent's Com. 136. The weight of authority favors the last view, it being generally conceded that whatever the character may be in which the surviving husband takes his wife's unrecovered choses in action, he and his next of kin are entitled to the ultimate benefit therefrom because he sustains the relation of husband. Gilman v. McArdle, 12 Abb. N.C. 414, reversed on other grounds, 99 N.Y. 451. The courts in this state construe the common law as meaning not only that the surviving husband takes absolutely because of his marital right, but also that, in the event of his death without administering, his next of kin are entitled to administer upon and hold as their own the unreduced choses in action which belonged to his wife. Ryder v. Hulse, 24 N.Y. 372; Estate of Warner, 2 Connoly, 347. And this is true whether such choses are payable on the death of the wife, or are mere reversionary or contingent interests, payable at a future day, or mere possibilities. Olmsted v. Keyes, 85 N.Y. 593. The opinion expressed in the case of Barnes v. Underwood, 47 N.Y. 351, that the surviving husband takes solely as administrator, is rejected as incorrect by the court in the leading case of Robins v. McClure, 100 N.Y. 328. An examination of the decisions in the state of New Jersey reveals a conflict on the question. There is ample authority, however, to sustain the view that the surviving husband takes unreduced choses of his wife jure mariti. Donnington v. Mitchell, 2 N.J. Eq. 243, and see Rinehart v. Harrison, 1 Baldwin, 177, which is a decision of the United States Circuit Court in New Jersey. My decision, therefore, is that the next of kin of the husband, through his ancillary administrator, are entitled to the fund to be distributed, and the decree should so provide.
Decreed accordingly.