Lusitania Sinking: Life Insurance and Probate
Litigation Combined—Part IX
Michael
Sean Quinn, Ph.D., J.D.
(See below
for more)
The purpose of this series of posts is to explore some of the
litigation following the sinking of the Lusitania on May 7, 1915 by a German
submarine.
One focus before now has been a life insurance case where the
policy involved a war risk exclusion, and the decedent, a famous man from a
famous family lost. Part IV.A. (Part IV.B involves a somewhat similar case
following the attack on Pearl Harbor years later. The two cases hinged on how to understand the
word “war” in the exclusion.
Another focus was on the will drafted by a decedent; it
favored his wife but not so much his daughters by a previous marriage, where
their mother had died several years before their father’s remarriage. This
involved several posts. Part VIII.A-H.
(Part VIII.G is really a “who-pays-certain-expenses” case
involving the daughters and a beneficiary under the wife’s will. Part VIII.H is
a short not saying a bit about two of the judges involved in the case, Robert
Ludlow Fowler, the Surrogate (or trial judge), a much forgotten jurist, and the
famous Benjamin Cardozo who wrote the majority opinion of the highest appellate
court in New York, the New York Court of Appeals, and who later served on the
United States Supreme Court during the 1930s.) Dorothy was an “infant,” as the
word was then used, i.e., she was under 14 years old.
In the case to be discussed now, issues of life insurance law
and the law of wills are mixed together. The case is In re Hammer [Public Adm’r] and In
re Smith, 168 N.Y.S. 588 (Surrogates’ Court 1917). Why the non-standard
citation will be clear in a moment.
Before going into the few details of the case we have, a
little bit should be said about the office of “Public Administrator” in New
York State. There was (and is) one for
every county in the City of New York at the time of this case, and there is one
to this day. The function of the office
is to administrator the estates of decedents.
Here is a brief description of them easily found on the internet.
The Office of Public Administrator administers estates
of decedents where no person entitled to take or share in the estate will
accept the responsibility to act, or where the decedent leaves no will or a
personal representative entitled by law to act. [They are a]ppointed by and
subject to removal by the Surrogates of the [relevant] county. [They have n]o
specific term.
I suspect that the person referred
to by the phrase “accounting administrator” either was the same as the Public
Administrator or a subordinate in that office. I not found current information about “accounting
administrators” on the “Net,” but there are accounting form available usable in
Surrogates’ Courts.
Albert
R. Smith, his wife, Gladys E. Smith, and their daughter, Dorothy Smith, were
killed resulting from the sinking of the ship. It could not be determined in
what order they died, assuming they did not die simultaneously. At the time of
his death, Albert carried (among other things) two life insurance policies, and
both of them named Gladys as the beneficiary.
Proving that Albert died was not an issue. The opinion does not indicate whether Albert
had a will. Nor does it indicate how
much money was involved.
However, the policy contained the following language:
‘Death of
Beneficiary before the Insurer. . . If any beneficiary die[s] before the
insured, the interest of such beneficiary shall vest in the insured, unless
otherwise provided herein. When the interest of a beneficiary shall have vested
in the insured. . . , the insured. . . may. . . designate a new beneficiary, by
filing a written notice thereof at the home office of the company accompanied
by this policy for suitable [e]ndorsement hereon.
(This
clause in the insurance policy also pertains to changing beneficiary, but that has
been omitted, since it is irrelevant to this case.)
The insurance company paid under both
policies jointly to the administrator of Albert’s estate and the administrators
of the estate of Gladys. A claim was
made that her estate was entitled to both the policy amounts. The accounting
administrator rejected the claim. The
Surrogate Schultz was then
asked to determine the validity of the said claims,
and to further determine the question whether Dorothy Smith, the daughter,
survived the said Albert R. Smith and Gladys E. Smith or either of them [long
enough to have a right of survivorship].
Thus,
the right of survivorship was the key issue in the case, and—of course—it was
also crucial in the Fowles case
discussed at length in Part VIII.
The parties agreed that when the
order of times of deaths cannot be determined in probate matters, there is no
automatic right of survivorship, e.g., spouse comes first, that who died when
must be proved, that the burden of proof rests upon a person who claims a right
of survivorship; and that nothing of the sort could be proved in this case.
At the same time, each of the
administrators of the two estates argued that this ancient rule should not
apply in this case but that the burden of proof should fall upon the other
estate. Surrogate Schultz would have none of it. The language of the will does not support the
idea. Under the facts of this case, said he,
The interest of the wife was a contingent interest, a
mere expectancy[,] which might be defeated in any one of three ways: (a) By the
insured living to the date mentioned [in the policy, 5/5/23], (b) by his
changing the beneficiary before his death; or (c) by her decease prior to that
of the insured.
So
far as Schultz, S., was concerned that decided the case. Gladys’ had no
interest in the money. Her interest
could not vest until his death, and “her survivorship was a condition precedent
to the vesting, and the onus of proving such survivorship is therefore upon the
claims[, Gladys].”
Hence, they must be regarded as
having died at the same time—precisely the same moment. Consequently, she will
be treated as dying before him, and the insurance money goes to his estate. The
same is true for all of his other property, and the same rule applies to
Dorothy, their daughter.
Nothing more
is known about how the probate matters were handled. The decision does not
strike me as one that is modern and progressive. It certainly is not in line
with the decision of the New York Court of Appeals in the Fowles case, though it is consistent—indeed, entailed by—the
majority opinion of the Supreme Court—Appellate Division in that same case As it stands, it sound anti-feminist to me,
since the male in may marriages owned
the property.
I have no idea whether Albert left a will or not. I conjecture he
did not, that very little money was actually at stake, and that the main
underlying purpose of the case was permit the Public Administrator to spend
money on post death expenses. Keep in
mind, please: Thee are mere conjectures.
Michael Sean Quinn, Ph.D.,
J.D., C.P.C.U. . . .
The Law Firm of Michael Sean Quinn et
Quinn and Quinn
1300 West Lynn Street, Suite 208
Austin,
Texas 78703
(512)
296-2594
(512)
344-9466 – Fax
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