This is an application under sections 205 and 206 of the Surrogate’s Court Act for an order directing the delivery of property alleged to belong to the decedent.
The respondent interposed an answer alleging title as to two items, namely, money withdrawn from a savings bank account, claimed by her as a gift from the deceased, and death benefits paid under policies of life insurance, of which she alleges she was the beneficiary. The matter, therefore, became a trial in which the title to the moneys referred to must be determined. Sur. Ct. Act, § 206.
*763The burden of proving the gift of the savings bank account by the decedent to the respondent is upon the respondent and should be proved by clear and convincing evidence. See cases cited in Matter of Hepner, 123 Misc. Rep. 758. The evidence in this case is insufficient to sustain the burden and I, therefore, find that title ' to said savings bank deposit was in the decedent.
It appears, however, that the money has been withdrawn and distributed, and that the petitioner and others interested in the estate have accepted part of such distribution. In view of the fact that the respondent no longer has possession thereof no decree can be made for its delivery or other relief granted under the present form of the statute, assuming that such a decree could be made if she still had possession thereof. Whether the so-called adopted daughter of the decedent was entitled to receive part of it or whether the respondent and her brother acquiesced in the partial distribution made to her, it is unnecessary for me to consider on this application.
The policies upon the life of the decedent were the ordinary industrial ife insurance poheies, and contained the usual provision that payment could be made by the company to the executor or administrator, husband or wife or any relative by blood of the insured, etc. This provision in industrial insurance policies is for the protection of the companies. It does not “ grant or take away a cause of action from any person ” (Wachtel v. Harrison, 84 Misc. Rep. 76; Ruoff v. John Hancock Mut. Life Ins. Co., 86 App. Div. 447; Wokal v. Belsky, 53 id. 167) ; so that the fact that the death benefit was paid to the respondent, standing alone, did not give her title thereto as against the estate of the decedent. In this matter, however, it appears that the decedent had attempted to change the beneficiaries in said policies by naming the respondent as such in each case, but that the insurance company had not yet approved of such change. Under these circumstances, the company not having raised the question that its consent had not been obtained and having made payment to the respondent, I am of the opinion that the death benefits belong to her. Luhrs v. Luhrs, 123 N. Y. 367; Southern Tier Masonic Relief Assn. v. Laudenbach, 5 N. Y. Supp. 901; White v. White, 194 id. 114.
The evidence as to any other property alleged to be withheld by the respondent was insufficient to warrant the making of an order directing the delivery thereof, and the proceeding as to such property is dismissed
No costs will be allowed to either party as against he other. Settle decision and decree accordingly.
Decreed accordingly.