Surrogate's Court, Bronx County, January, 1918. [Vol. 102.

George J. Gregg, for respondents.

Charles V. Halley, Jr., special guardian for infant respondents.

SCHULZ, S. It appears that the decedent left no wife, no children, no representatives of a child, no next of kin and no children of his deceased wife, him surviving, and that he died possessed of personal property only. His wife, who predeceased him, left a sister, two brothers, nephews and nieces.

It is contended that under subdivision 16, section 98, of the Decedent Estate Law (being Laws of 1909, chap. 18 as amd. by Laws of 1913, chap. 489 and constituting Consol. Laws, chap. XIII) decedent having left no next of kin of his own, the next of kin of his wife Rachel Fox, should be deemed his next of kin for the purposes therein referred to. This subdivision is as follows:

"If there be no husband or wife surviving and no children, and no representatives of a child, and no next of kin, and no child or children of the husband or wife of the deceased, then the whole surplus shall be distributed equally to and among the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this article or in chapter eighteen of the code of civil procedure; but such surplus shall not, and shall not be construed to, embrace any personal property except such as was received by the deceased from such husband or wife, as the case may be, by will or by virtue of the laws relating to the distribution of the personal property of the deceased person."

It will be noted that by its terms the meaning of the word "surplus" is limited so as to embrace only such

Misc.] Surrogate's Court, Bronx County, January, 1918.

personal property "as was received by the deceased from such husband or wife, as the case may be *

Upon the hearing before me, I reserved my decision upon a motion to strike out the testimony of one of the witnesses, namely, Bertha Alexander. That motion I now deny and award an exception to the attorney for the accountant.

With all of the testimony before me, however, I cannot find that any of the property of which the decedent died possessed was received by the decedent from his wife. There appear to be only three items as to which the slightest basis for such a contention might be claimed.

In two policies upon the life of the decedent, his wife is stated to have been the beneficiary. It was provided that copies of these policies might be offered in evidence in lieu of the originals, and one of the same has been thus offered. If the deceased wife was the absolute beneficiary in the said policies and had a vested right in the death benefit, that right would have passed to her husband upon her death (Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 347), and upon the latter's death it would have become part of his estate. Olmsted v. Keyes, 85 N. Y. 593; Walsh v. Mutual Life Ins. Co., 133 id. 408; Waldheim v. John Hancock Life Ins. Co., 8 Misc. Rep. 506. Under such circumstances it might become necessary to consider whether the property received from a deceased wife through the operation of the jus mariti (Gerber v. State Bank, 167 App. Div. 263 and cases cited) would come under the subdivision quoted. But under the policy in question this is unnecessary. The latter is an industrial policy and contains the following clause: " In the event of the decease of the insured payment of the amount due hereunder will be to the beneficiary, if living, last nomi

made

Surrogate's Court, Bronx County, January, 1918. [Vol. 102.

nated, whether in the proposal herefor or in any written amendment thereof filed with and approved by the Company; but the Company may make payment to the Executor or Administrator of said insured, or to any relative by blood or connection by marriage, or to any other person in the judgment of said Company equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for burial, or for any other purpose;

Nothing before me indicates who the last "nominated "beneficiary is. Assuming, however, that it was the wife of the deceased, which is the hypothesis most favorable to the respondents, it is clearly evident that her interest was merely a contingent interest (Smith v. National Ben. Soc., 123 N. Y. 85; Southwell v. Gray, 35 Misc. Rep. 740) which would vest upon the prior death of the decedent provided he had made no change in the beneficiary. As the widow died before the deceased, she never became vested with the right to the death benefit. Hence her husband did not receive it from her upon her death.

As it was stipulated that the terms of the other policy were substantially the same as the one under consideration, the same reasoning would apply.

The other item was a bank account in the Harlem Savings Bank in the name of "Rachel Fox, trust for Charles H. Fox." The form of this deposit created a tentative trust revocable at will by the deceased wife at any time before her death. Matter of Totten, 179 N. Y. 112; Matthews v. Brooklyn Savings Bank, 208 id. 508; Matter of Leonard, 218 id. 513, 520; Martin v. Martin, 46 App. Div. 445, appeal dismissed 166 N. Y. 611; Ruet v. Ruet, 28 App. Div. 553. As the wife died before the decedent, the trust became irrevocable upon her death, and the moneys evidenced by the deposit vested in the deceased and were not received by the

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Municipal Court of New York, January, 1918.

deceased by will or by virtue of the laws relating to the distribution of the personal property of the deceased person."

It follows that the claims of the next of kin of the deceased wife are not tenable and should be disallowed.

Decreed accordingly.

HARRY T. SCHACHNE, Plaintiff, v. THE CORPORATION OF THE CHAMBER OF COMMERCE, Defendant.

(Municipal Court of the City of New York, Borough of Manhattan, First District, January, 1918.)

Bonds-provisions of perpetual loan

"The Corporation of the Chamber of Commerce of the State of New York" — actions contracts.

Where a building fund subscription non-cumulative income bond issued by "The Corporation of the Chamber of Commerce of the State of New York," upon the express condition and understanding that the corporation might call in, pay off and cancel the bond by returning to the person who may then be the owner thereof the amount of said subscription, does not fix a particular date for repayment, a provision that interest shall be paid "until the full amount of said subscription shall be returned and this bond redeemed as herein provided" determines the rights and obligations of the parties in regard to the repayment of the loan; the bond therefore provides for a perpetual loan.

Where in an action to recover the face value of such a bond, with interest, it appears that seventeen years have elapsed since the issue of the series of bonds and not one subscriber has demanded repayment of his subscription and that the original owner of the bond in suit held it for four years until his death and his trustees for twelve years thereafter, the legal inference may be drawn that the trustees sold the bond at auction only for the purpose of winding up the estate.

The fact that during these many years not one dollar was ever demanded of defendant in repayment of an issue of bonds

Municipal Court of New York, January, 1918. [Vol. 102.

in excess of $1,000,000, is convincing evidence of the practical construction of the agreement by the parties themselves, and any doubt as to the meaning of the contract will be resolved in favor of defendant which refused to accede to a demand for the payment of the bond, with interest, and the complaint will be dismissed on the merits.

ACTION to recover the face value of a bond, together with interest.

Jacob Friedman, for plaintiff.

Cohen, Gutman & Richter (Julius Henry Cohen and Theodore B. Richter, of counsel), for defendant.

SPIEGELBERG, J. The plaintiff seeks to recover the face value of a $1,000 bond, together with interest. The bond is one of a series issued by the defendant and acquired by the plaintiff under the following circumstances.

The defendant is a domestic corporation. Its charter dates back to the year 1768. It was subsequently confirmed and amended by special acts of the legislature. The main purpose of the chamber of commerce is "to promote and extend just and lawful commerce." It has become one of the foremost agencies in the development of the commerce of the city of New York. It does not engage in any enterprise for financial gain of its own or that of its members. For more than a century the company's activities were conducted from leased quarters. The advisability of securing a building of its own having become apparent it was unanimously decided at a meeting of the chamber of commerce held on May 6, 1897, "that the time had come when this Chamber should aim to provide itself a permanent home." Prior to that date the sum of $248,500 had already been subscribed towards the formation of a building fund. After the meeting