On the 7th day of April, 1900, the John Hancock Mutual Life Insurance Company, of Boston, Mass., issued a policy of life insurance upon the life of Herman O. Heinrich in the sum of $2,500, payable to his executors or administrators, upon satisfactory proof of his death. On the 14th day of August, 1900, the said Heinrich executed and delivered to the plaintiff an instrument in writing under his hand and seal, assigning the proceeds of said policy upon his death to her. . Said assignment was executed in duplicate upon blank forms furnished by the insurance company and under the rules of the company, one copy being filed in its office and the other given to the plaintiff as aforesaid. After the death of Heinrich. *280the plaintiff made demand upon the insurance company for payment of the policy to her, and payment being refused, she commenced an action against the company to recover the amount secured to be paid by the policy: The defendant also made claim to the proceeds of .the policy to the company, and the latter admitting liability to pay, made a motion to obtain an order of interpleader, which motion was granted, and the defendant was brought into the action as a party, and the insurance company, pursuant to the order of interpleader, paid into court to the credit of the action the sum secured to be paid by the policy. The answer of .the defendant averred, inter alia, that the assignment held by the plaintiff was procured by fraud and misrepresentation practiced upon the deceased, which avoided the same, and that it was also void for lack of consideration. The recital in the assignment was “ in consideration-of natural love and affection, I hereby assign and transfer unto Frieda von Schuckmann, * * *' my intended wife.” The proof upon the trial tended to establish that for some time prior to the time when Heinrich procured the policy to be issued upon his life he was paying his addresses to the plaintiff and had made a proposal of marriage to her, which was not accepted. He continued, however, to call upon the plaintiff and the parties made a conditional engagement, which depended upon the state of plaintiff’s affection for Heinrich, which in substance was that if she could bring herself to think that she could bestow upon the deceased the love and affection which she- thought should go with a promise to marry, she would accept his proposal. It appears that she never was able to bring the state of. her affections to that point, and so notified the deceased of her inability to accept the proposal, accompanied by the statement that she loved another and could not marry him. This notification was contained in a letter written to the deceased after the assignment had been made. He accepted the determination as final, acquiesced therein and evidently continued to regard her with affection and to réspect her for what she had done for him in.forming his character. He made no demand upon her for a return of the assignment, and the record contains no suggestion of any expectation or desire upon his part that the same would or should be returned to him. It is not claimed that there was anything illegal in the deceased insuring his life for the benefit of the plaintiff, or but that he had legal right to make a *281gift of the policy to the plaintiff and invest her with title thereto and right to enforce the same upon his death. The court in its finding negatived the claim of fraud upon the part .of the plaintiff in procuring the assignment, and found that the delivery of the. assignment to the plaintiff constituted a gift of the policy to her and awarded judgment in her favor. The evidence sustained the finding that there was no fraud in the transaction. The deceased fully understood what he did, and he had an abundance of opportunity after the plaintiff had made her final decision not to marry him to have procured a. return of the assignment to him, if he had the legal right to have it returned, or otherwise to disavow his act. He did neither, but, with full knowledge of all the facts, permitted the transaction to stand as originally consummated. It is not necessary to determine whether the proof disclosed all of the elements constituting a good gift miter vivos. The assignment vested in the plaintiff the legal title to the policy, and resort may be had to any evidence in support Of the validity of the assignment disclosed by the testimony. The assignment itself was under seal and was acknowledged. Presumptively, therefore, a valid consideration was established, and the onus was upon the defendant to overthrow this presumption by proof. (Home Insurance Co. v. Watson, 59 N. Y. 390 ; Torry v. Black, 58 id. 185; Code Civ. Proc. § 840.) Ho proof whatever was offered to overcome this presumption, and for aught that appears in this record the plaintiff gave an adequate consideration which was quite independent of love and affection or of mutual respect. We think,- therefore, that the plaintiff showed herself entitled to receive the proceeds of the policy.
We are of opinion, however, that the judgment should be modified by allowing to the defendant the sum of forty dollars, premium which he paid upon the policy after the death of the deceased. This premium was due prior to his decease and was required to be paid. It constituted, therefore, a proper allowance to be made to the defendant from the recovery. We also think that the costs and the extra allowance should not have been, awarded against the administrator personally. It does not appear that he was guilty of any fault in resisting the claim of the plaintiff, or in laying claim to the fund. While sections 1835 and 1836 of the Code of Civil Procedure are not technically applicable, to this case, because the judg*282ment, except for costs, does not proceed' against the administrator, these sections show the policy of the law with respect to the liability of the - personal representatives for costs, and as this is an equity action, the award of costs was within the discretion of the court, and in view of all the circumstances, we think that no costs should have been awarded against this defendant.
The judgment should, therefore, be modified in these respects, and as modified affirmed, without costs of this appeal to either party.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs. . .