Whitcomb v. Miller

TEMPLE, J. This is an appeal from an order setting apart property to the widow of deceased as exempt from execution.

The facts appear in the petition of the widow for the order, all ■ of which are admitted by the demurrer. Ho answer was filed or evidence taken at the hearing. Samuel Miller died in 1896, intestate, and Lillian Miller was appointed administratrix December 14, 1896, and duly qualified. An inventory and appraisement was filed March 15, 1897. It is averred that the administratrix has received five thousand dollars on account of a policy of insurance on the life of Samuel Miller, deceased, dated February 22, 1888, and payable by its terms to the executors or administrators of the insured. The annual premiums did not exceed the sum of five hundred dollars.

The heirs at law of decedent were the petitioner and two daughters of the deceased, both over the age of majority, and residents of the state of Hew Tork.

It is claimed that the said sum of money so received is exempt [354]from execution, and petitioner asks that it be set apart to her under the provisions of the statute.

The two daughters, Marian E. Whitcomb and Grace E. Miller, ..appeared and resisted the'application, but, as stated, they did not controvert any of the allegations as to the facts.

They object that, 1. The money is not exempt from execution; or, 2. It is not exempt as against the heirs; and, 3. The . daughters are each entitled to a one-fourth interest in the pro- . ceeds of the policy.

Section 690 of the Code of Civil Procedure, so far as material "here, reads as follows: “The following property is exempt from execution, except as otherwise specially provided: .... 12. ■.All moneys, benefits, privileges, or immunities accruing or in any manner growing out of any life insurance on the life of the .debtor, if the annual premiums paid do not exceed five hundred dollars.”

Section 1465 provides that the court may set apart for the use of the suryiving husband or wife of the decedent all the property which is exempt from execution. It is contended that the policy being made payable to the administrator, and not to the insured, the policy did not belong to the deceased and never could have been sequestered for the benefit of his creditors, even though there had been no statutory exemption. Therefore the money did not accrue to the deceased out of such policy, and it is not within the description of property referred to in section 1465 of the Code of Civil Procedure.