A rehearing was granted chiefly because the decision was based largely on the reasoning of the court in In re Smith's Estate, 141 Misc. 651, 253 N.Y. S. 825, apparently unknown to the attorneys herein. In the former opinion we intended to give full force and effect to Singleton v. Cheek, 284 U.S. 493,52 S. Ct. 257, 76 L. ed. 419, 81 A.L.R. 923, holding the amendment of March 4, 1925, 43 St. 1302, 1310, c. 553 (38 USCA, § 514) valid as retroactive and thus modifying the original act of October 6, 1917, and the subsequent amendments thereof, and further that [284 U.S. 497]:
"By that amendment, the rule, which, upon the happening of the contingencies named in the prior acts, limited the benefit of the unpaid installments to persons within the designated class of permittees, was abandoned, and 'the estate of the insured' was wholly substituted as the payee. All installments, whether accruing before *Page 657 the death of the insured or after the death of the beneficiary named in the certificate of insurance, as a result, became assets of the estate of the insured as of the instant of his death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of his residence, such heirs to be determined as of the date of his death, and not as of the date of the death of the beneficiary."
If the insured by will has disposed of the unpaid instalments they must be distributed according to the will. Authorities were cited, and with approval, where that had been done — the will in each case, however, bequeathing the unpaid instalments to someone other than the beneficiary named in the certificate. In In re Smith's Estate, 141 Misc. 651, 253 N.Y. S. 825, nothing is said conflicting with Singleton v. Cheek,284 U.S. 493, 52 S. Ct. 257, 76 L. ed. 419, 81 A.L.R. 923, which was filed nearly a year later. Where the insured has made a will, it must be construed and given effect according to the law of the state where the insured resided at his death the same as would the intestacy statutes of such state had there been no will. It is true that courts favor construing wills so as to avoid partial intestacy. In re Henrikson's Estate, 163 Minn. 176,179, 203 N.W. 778. Nevertheless, the intention of the testator should prevail. To what is said in In re Smith's Estate, 141 Misc. 651, 253 N.Y. S. 825, as reasons for the conclusion that the insured did not by his will intend to dispose of the unpaid instalments remaining at the death of the beneficiary, we add these observations:
The record does not disclose when the insured enlisted, nor when the certificate of insurance was issued to him; but it does show that he died November 13, 1918, and that the will was made less than a month before that date. Where a beneficiary is named in a life insurance policy the insured does not attempt to dispose of the insurance by his will. The insurance goes to the beneficiary named in the policy. When the soldier here made his will, and until his death, the law plainly provided that in the event of the death of Erick, the beneficiary named, the brothers and sisters of the insured then living should be substituted as beneficiaries. Such being the law, it is unreasonable *Page 658 to impute to the insured an intention to dispose of the proceeds of his insurance certificate by his will. He could not have anticipated such a change as was wrought by the retroactive amendment of March 4, 1925. Again, even if he had, he knew that Erick, the beneficiary named, was entitled to draw the monthly payment so long as he lived and while any instalment remained unpaid. If what Erik could not personally receive, because of death, was intended to go to Erick's estate or to any of Erick's heirs, it would have been a simple matter so to declare in the will.
The case of in re Smith's Estate, 308 Pa. 265, 162 A. 214, is cited on the rehearing. There, however, no beneficiary was in fact designated in the certificate, although the insured mistakenly thought there was. He wrote a letter clearly showing that his uncle, with whom he had made his home before enlisting, was to have his insurance. The letter was proved and allowed as his will. There could be no possible doubt of the intention of the insured under that letter or will to dispose of his war risk insurance to his uncle. That will concerned only the insurance. Here it appears that the insured died seized and possessed of real and personal property of the value of $5,500, nearly one-half of which went by his will to Erick and one of Erick's children. No mention is made of any insurance in the will.
Attention is called to a possible error in the judgment in respect to the distribution of the share that under our intestacy statute went to Erick. Erick died testate. No application was made to the court below to correct any error in the judgment in that regard. The former opinion is adhered to, and the judgment is affirmed, but without prejudice to the heirs of Erick Erickson to apply to the trial court for a modification in the distribution of the one-fifth share going to the heirs or legatees of Erick.
STONE and OLSEN, JJ. (dissenting). *Page 659