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App. Div.] First Department, November, 1911. of Irving H. Sands, deceased; that said Irving H. Sands, who died subsequent to January 30, 1909, was a son of and survived said Emma C. Sands, and plaintiff as such is a grandchild and heir at law and next of kin of said Emma C. Sands, having an interest as heir at law and next of kin in her estate affected by an alleged will and codicil of said Emma C. Sands, deceased, admitted to probate in the Surrogate's Court of New York county, as hereinafter in paragraph third alleged.” And she prays that the will probated in New York be adjudged invalid and void and the will probated in Missouri be declared and adjudged the last will and testament of Emma C. Sands.

The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, the claim being that it appeared upon the face of the complaint that the plaintiff was not one of the persons entitled to commence an action under section 2653a of the Code. The demurrer was sustained and plaintiff appeals.

Said section provides that “Any person interested as devisee, legatee or otherwise, in a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, or any person interested as heir at law, next of kin or otherwise, in any estate, any portion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this State, as provided by the Code of Civil Procedure, within two years prior to the passage of this act, or any heir at law or next of kin of the testator making such will, may cause the validity or invalidity of the probate thereof to be determined in an action in the Supreme Court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be parties to the action.'

The plaintiff makes three claims: First, that for the purposes of construing this section of the Code the time of the commencement of the action must be taken as the time at which should be determined who is the next of kin of the decedent; second, that at such time she was the next of kin, being the daughter of a deceased son of the decedent who, however, had survived her; and third, that if she is not a next

APP. Div.--- VOL. CXLVI. 45

First Department, November, 1911.

[Vol. 146. of kin she comes within the phrase "any person interested

otherwise." The right to maintain this action is purely statutory. The plaintiff must show that she comes within one of the classes specified in the statute. It is admitted that she is not a devisee, and, as the estate consists solely of personal property, that she is not an heir at law.

“The term 'next of kin' includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife.” (Code Civ. Proc. $$ 1870, 2514, subd. 12.) “The provisions of this article respecting the distribution of property of deceased persons apply to the personal property of married women dying leaving descendants them surviving.” (Code Civ. Proc. $ 2734; Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], $ 100.)

The decedent was a widow at the time of her death and left her surviving four children, one of whom was Irving H. Sands, father of the plaintiff. As such he would have been entitled to share in the estate of the decedent had she died intestate and he was, therefore, one of her next of kin. Section 2732, subdivision 4, of the Code of Civil Procedure (Decedent Estate Law, $ 98, subd. 4) provides that the surplus after payment of debts must be distributed “equally to and among the children, and such as legally represent them.”

In Clark v. Cammann (160 N. Y. 315), cited with approval in Matter of Wilcox (194 N. Y. 288), HAIGHT, J., said: “There being no disposal of the estate by the will, it follows that it must be distributed under the Statute of Distribution. (Lefevre v. Lefevre, 59 N. Y. 447.) Among the conflicting claims made to this fund, we find one in which it is insisted that the testator's next of kin, at the time of the termination of the life estate, are the persons to whom the distributions should be made, and not to those who were next of kin at the time of the testator's death, or their personal representatives. The persons and the only persons who are entitled to take by virtue of the statute are those who answer to the legal definition of next of kin at the time of the death of the intestate."

App. Div.] First Department, November, 1911.

In Miller v. Maujer (82 App. Div. 419) an action was brought under section 2653a of the Code of Civil Procedure; the plaintiff was a niece of the testatrix and showed by her complaint that she was not mentioned in the will as devisee, legatee or otherwise. Defendants demurred. The court said: “While the plaintiff is, under her allegations, the next of kin of the testatrix, we are of opinion that in view of the fact that the testatrix died without leaving descendants, and being survived by a husband, the latter, if the will should be declared void, would take the personal property under the common law and his marital rights [Robins v. McClure, 100 N. Y. 328], so that he is, within the spirit of the statute, the next of kin, and the plaintiff, not being an heir at law, no real estate being involved (Tillman v. Davis, 95 N. Y. 17, 24, 25), has no standing to bring this action. The complaint, therefore, fails to state facts sufficient to constitute a cause of action, and the demurrers were properly sustained.” (See, also, Hoes v. Van Hoesen, 1 Barb. Ch. 379; Matter of Kane, 2 id. 375; Van Nostrand v. 1 Jarvin, 16 App. Div. 28; Doane v. Mercantile Trust Co., 160

N. Y. 491.)

The appellant claims that having alleged in the complaint that she is the next of kin of the decedent, the defendants by thae demurrer have admitted that allegation. But that allegation is a mere conclusion of law, and she has set forth the facts which negative said conclusion. Conclusions of law are not admitted by a demurrer.

She also claims that she is a legatee named in the will, if not directly, yet indirectly, because she is named as a legatee in the will of her father. But she does not allege any specific legacy in her father's will, but merely that he bequeathed and devised all his estate to his wife and his children. The statute permitting any person interested as legatee in a codicil or will admitted to probate in this State to sue, of course, refers to a lega tee mentioned in the will under consideration. The claim is without substance.

Finally she asserts that she comes within the phrase person interested

otherwise" in the estate of her grandmother, and calls attention to subdivision 11 of section 2514 of the Code of Civil Procedure, which is as follows: “The


First Department, November, 1911.

[Vol. 146. expression 'person interested’ where it is used in connection with an estate or a fund, includes every person entitled either absolutely or contingently to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor." In no event can she be considered, within the meaning of the statute, as a person interested in the will or estate of her grandmother. She was not mentioned as a legatee in either the will probated in New York or that alleged to have been probated in Missouri. Her sole claim is based upon the fact that she is the daughter of her father Irving H. Sands. He was a legatee mentioned in both of said wills, and, at the time of his mother's death, was one of her next of kin and if she had died intestate would have been entitled under the Statute of Distributions to one-fourth of her personal estate. He survived his mother and thus his interest in her estate became vested. Upon his own subsequent death his personal estate passed to his personal representatives and that estate included whatever interest he had in his mother's estate. The plaintiff is not the assignee or grantee of his interest in his mother's estate nor is she his personal representative. Whatever rights she has are in her father's estate, derived from whatever Source it may have been. She is not entitled either absolutely or contingently to share in her grandmother's estate because hat had become vested in her four children, one portion – if intestacy is found — becoming a part of her father's estate, against which, alone, she has a claim.

As the complaint shows that the plaintiff had not capacity to sue, it did not state facts sufficient to constitute a cause of action. The interlocutory judgment should, therefore, be affirmed, with costs and disbursements to the respondents, with leave to the appellant upon the payment thereof and within twenty days to serve an amended complaint.

INGRAHAM, P. J., LAUGHLIN, Scott and DOWLING, JJ., concurred.

Judgment affirmed, with costs, with leave to plaintiff to serve an amended complaint on payment of costs in this court and in the court below.

App. Div.]

First Department, November, 1911.


COMPANY, Appellant.

First Department, November 3, 1911.

Insurance — failure to pay premium after notice - extension of time

forfeiture for non-payment on expiration of extension.

Where a notice that a semi-annual premium on a life insurance policy

was due on a certain date was duly mailed to the insured by the insurer, and, on the day before the expiration of the thirty days of grace provided for by statute and by the policy, the insurer at the request of the insured accepted payment of one-fifth of the semi-annual premium and extended the time of payment of the balance for one month, and thereafter, before the extension expired, the insurer again accepted onefifth of the semi-annual premium and extended the time to pay the balance for another month, and, having received two subsequent notices that the balance of the premium was due at the expiration of the last extension, the insured failed to pay the balance, the insurer was entitled to declare the policy forfeited under the original notice that the semiannual premium was due. though in a suit to recover on the policy the insurer, instead of alleging the original notice that the semi-annual premium was due so as to justify it in declaring the forfeiture for a failure to pay within thirty days thereafter, pleaded the subsequent notice that the balance of the premium was due, the defendant is entitled to claim the forfeiture where the plaintiff introduced the original notice and the defendant proved that it mailed the same without objection or exception.

APPEAL by the defendant, the Home Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 23d day of November, 1910, denying the defendant's motion for a new trial made upon the minutes.

Bernard Hershkopf (Howard Van Sinderen with him on the brief], for the appellant.

Frank E. Carstarphen [Joseph A. Burdeau with him on the brief], for the respondent.

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