In re the Judicial Settlement of the Account of Robus , 34 N.Y.S.2d 297 ( 1942 )

Decrees so far as appealed from affirmed, without costs of this appeal to any party. All concur, except Taylor and McCurn, JJ., who dissent and vote for reversal in the following memorandum: The right to change the beneficiaries was reserved to the insured in the two life insurance policies under consideration. He accordingly notified the company to change the beneficiary to “ Jesse W. Lewis, if living; or if not living, then to the executors or administrators of the Insured, any prior designation of beneficiary and options of settlement being first hereby revoked.” In the absence of any other evidence showing the transaction to be of a different nature such a change of beneficiary entirely eliminates any interest which the wife, Mrs. Bobus, previously enjoyed as beneficiary. Where the power to change the beneficiary is reserved to ' the insured, the interest of the beneficiary is a mere expectancy and not a vested right and is subject to revocation by the acts of the insured. (Lahey v. Lahey, 174 N. Y. 146; Witt v. John Hancock Mutual Life Insurance Co., 246 App. Div. 614; Schoenholz v. New York Life Insurance Co., 234 N. Y. 24, 29; Greenfield v. Massachusetts Mutual Life Insurance Co., 253 App. Div. 51.) Mr. Lewis, after the insured’s death, collected from the company the proceeds of the policies. After threat of suit by the administratrix of the insured’s estate he paid over to the insured’s estate the balance of the proceeds of the policies after deducting the amount owing to him on a promissory note given by the insured. Upon a ■trial in Surrogate’s Court upon proceedings for judicial settlement of the insured’s estate a decree was made that such money belonged to the estate of the insured’s wife who was the former beneficiary and who had since died. We find no evidence in the record to support that conclusion. (The portions of the two decrees appealed from adjudge that the proceeds of policies of insurance on the life of decedent belong to Frances L. Bobus, and that there were no funds in the estate of Le Boy B. Bobus, and release the administratrix from her duties.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCurn, JJ.