Opinion
August 30, 1929.
Marks F. Paskes, for the contestants.
Cabell, Ignatius Lown [ Alfred J. Bohlinger of counsel], for the executors.
The issues raised by the objections filed to this account are determined as follows: I hold that the contestants are preferred claimants and should, therefore, be paid the amount of their claim, to wit, the sum of $506.64, in full. It is well established that where one of several parties collects the total proceeds of an insurance policy, payable "as interest may appear," he may be compelled to account for such portion which exceeds his interest, to the other person or persons interested in the insurance. ( Cone v. Niagara Fire Insurance Co., 60 N.Y. 619; Tierney v. Home Title Insurance Co., 207 N.Y.S. 550; Symmers v. Carroll, 207 N.Y. 632.) The contention of the executors that the contestants lost their right to a preference because they did not accept the sum of $506.64 when offered by the decedent, on the ground that they were entitled to more, is of little weight in view of the fact that the contestants were at all times entitled to receive at least that amount from the decedent who continued to hold it until his death. Other creditors cannot be prejudiced by such a holding because the sum in question was never the property of the decedent but was at all times held by him as trustee for the contestants. It was not, therefore, any part of the estate distributable to other claimants. The objections, therefore, are sustained. Submit decree on notice settling the account accordingly.