(78 Hun, 572.)

#### NATIONAL LIFE ASS’N OF HARTFORD v. STURTEVANT et al.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Insurance—Proof of Death—Effect of Mistakes.

Proofs of death are not conclusive, as against the persons making them,, of the fact's stated, but mistakes therein may be corrected.

2. Evidence—Documents—Family Records.

A paper with blanks for names and dates of births, marriages, and' deaths, containing a number of names, among which was that of a decedent, with date of birth, found among the papers of decedent, is not admissible to prove the date of her birth, where the entire paper was in same handwriting and written with the same ink, and there was no evirdence as to who wrote the paper.

Appeal from judgment on report of referee.

Action by the National Life Association of Hartford against Harriet E. Sturtevant and others to obtain a direction as to the distribution of a fund among defendants. From a judgment in favor of defendants Miner and another, defendant Sturtevant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, BRADLEY,, and HAIGHT, JJ.

W. A. Sutherland, for plaintiff.

Wile & Goff, for appellant.

H. Greenfield, for respondents, Jennie C. and John Miner,

*530HAIGHT, J.

This action was brought by the plaintiff for the purpose of obtaining the direction of the court as to the distribution of the funds in its hands between the defendants. It appears that the Mutual Belief Society of Bochester, N. Y., was a domestic corporation organized under the statute of the state, and did business as a mutual benefit association; that on the 15th day of June, 1892, it became embarrassed, and, under an arrangement with the plaintiff, transferred its assets and business to the plaintiff, who agreed to receive payments of assessments then outstanding, and which had been issued by the Mutual Belief Society, and distribute the same to the parties entitled thereto. It further appears that on the 1st day of June, 1892, the Mutual Belief Society had issued its assessments upon its members for the payment of six death claims, among which was one on account of the death of Mary J. Carpenter, and another on account of the death of A. G. Sturtevant, upon which assessment there was received the sum of $8,636.08; that thereafter an additional assessment was made, upon which there was received the sum of $755, which sums were not sufficient to pay the claims in full. It further appears that before the commencement of this action the defendant Harriet E. Sturtevant, who is the beneficiary named in the certificate issued to A. G. Sturtevant, served a notice upon the plaintiff to the effect that she contested the right of the beneficiaries under the certificate issued to Mary J. Carpenter to receive any of the avails of the assessment, or of the funds in the hands of the plaintiff, and demanded that her pro rata share thereof be paid over to her. On the other hand, the defendants Jennie C. Miner and John Miner demanded that the amount derived upon the assessment on account of the claim to Mary J. Carpenter be paid over to them, they being the beneficiaries named in her certificate. It further appears that Marv J. ^Carpenter applied for membership in the Mutual Belief Society ..on the 30th day of July, 1880, and in her application therefor . stated that she was born November 17, 1820; that she died on the ;21st day of September, 1891, and that, in the proofs of death furbished, her birth is stated to have occurred on the 17th day of November, 1818; that, under the by-laws of the society, persons who had passed their sixtieth birthday were ineligible to membership,—for which it is claimed that Mary J. Carpenter, in stating in her application that she was born on the 17th day of November, 1820,—thus making herself at the time but 59 years of age,— practiced a fraud upon the association, which rendered void the certificate issued to her.

Upon the trial it appeared that the respondents, Jennie C. and John Miner, in malting their proofs of death, left blank the date .of birth of Mary J. Carpenter; that, some days after the samé had been signed and sworn to by them, the date was filled in, with-cut their authority or consent, by one Putnam, who had charge of the paper. We think this evidence was competent. It may be that the proofs of death became prima facie evidence, so far as the Miners were concerned,- of the facts stated therein, but we do *531not understand it was conclusive evidence. If a mistake had been made, it was proper that it should be corrected or explained, and this they did in their testimony given on the trial. Wood, Ins. § 427; McMaster v. Insurance Co., 55 N. Y. 222. We are thus brought to a consideration of the paper offered as the family register. It appears from the testimony that one James Simpson, who was the son of Mrs. Carpenter, had in his possession a paper with an old-fashioned engraving on it, with lines and blank space for names, dates of birth, marriage, and death; that it had upon it a number of names, among which was that of Mary Jane Hill, which was the maiden name of Mrs. Carpenter, and in the column headed “Date of Birth” was entered, opposite her name, 27ovem-ber 17, 1818. This paper was not produced upon the trial, but it appears that it was found among the papers of Simpson and his mother, and that it had been among their papers for a good many years; that it was not known who wrote the paper; that it was not in her handwriting, but it all appeared to be written in the same handwriting, at one time, and in the same ink. Was this paper evidence as to her date of birth? 1 G-reenl. Ev. § 105, in speaking upon the subject of the proof of facts of birth, marriages, and death, says:

> “The inscriptions on tombstones and other funeral monuments, engravings on rings, inscriptions on family portraits, charts of pedigree, and the like, are also admissible as original evidence of the same facts. . Those which are proved to have been made by or under the direction of the deceased are admitted as his declarations. But if they have been public'y exhibited, and were well known to the family, the publicity of them supplies the defect of proof, in not showing that they were declarations of deceased members of the family, and they are admitted on the ground of tacit and common assent.”

It will be observed that the paper does not purport to contain original entries, for, if the events were entered thereon at the time of their occurrence, they, of necessity, would have been entered at different times, with different pens and ink. The fact that the paper appears to have been written in the same handwriting, at one time, and in the same ink, would indicate that, at most, it was but a copy. It does not appear that Mrs. Carpenter ever publicly exhibited this paper as containing her family record, or that it was made by her, or a deceased relative of hers. It does not distinctly appear that it was a paper belonging to her. The only evidence upon that subject appears in the testimony of Simpson, in which he states that it was found “among her papers and mine.” For these reasons, we are of the opinion that it does not come within the rule making it admissible as evidence; and, without this, the appellant has failed to produce any evidence impeaching the statement made by Mrs. Carpenter in her application for membership.

This view renders it unnecessary to consider the other questions discussed, or as to whether the appellant would be entitled to share in the fund derived from the assessment upon the claim of Mrs. Carpenter if it had been obtained through a fraud practiced by her upon the members of the association. The judgment appealed from should be affirmed, with costs against the appellant. All concur.