is no fact or circumstance to prove which survived, there is no presumption whatever on the subject. None arises from consideration of age or sex, and the law will no more presume that all died at the same instant than it will presume that one survived the other. It treats the case as one to be established by evidence, and lays the burden of proof on him who claims survivorship. * * *.'
11 P.L.E. Death § 6, states, inter alia, as follows:
'* * * In case of a question of survivorship between an insured under a life policy and a beneficiary, the act creates a presumption that the insured survived, in a departure from the common-law rule that in the case of death of two or more persons in a common disaster there was no presumption whatever on the subject of survivorship, but that the burden was on the one asserting survivorship to prove it.'
Counsel for the Administrator strenuously contends that Pennsylvania law should govern in the interpretation of the contract, but he has failed to introduce one scintilla of evidence to indicate that the wife beneficiary survived the slayer insured.
Furthermore, certified copies of the Coroner's reports on file in the Office of Pennsylvania Department of Health which were submitted to the Court show that Mary Harrington was 'shot by husband' and died May 29, 1954, at 6:50 P.M., E.S.T., and that John T. Harrington died a suicide on May 29, 1954, at 6:55 P.M., E.S.T. The certificate of the Coroner is required under Pennsylvania law
and under Federal law is admissible into evidence, although open to contradiction and not binding upon the jury.
No attempt was made by the Administrator of the Estate of May Harrington to contradict the Coroner's reports and as a matter of fact in brief opposing motion of brothers and sisters for judgment on the pleadings, stated, 'for the purpose of the questions for which this brief is submitted is (sic) to be assumed that John T. Harrington, the insured, survived May M. Harrington, the wife-beneficiary.'
Counsel for the Administrator of the named beneficiary argues at great length that under the laws not only of Pennsylvania but likewise of New York, insurance recovery is not only barred as a matter of public policy to the surviving slayer himself but also the those who claim derivatively through him. Of course, we are not met here with that problem. We are here bound by the contract. The proceeds of this policy, under the circumstances of this case, are clearly payable to the brothers and sisters of the insured not derivatively through their brother, the slayer-insured, under the Intestate Laws of either Pennsylvania or New York, but through teh provisions of the master policy between the Insurance Company and the insured employer.
As stated by the court in Boseman v. Connecticut General Life Insurance Co., 301 U.S. 196, 202, 57 S. Ct. 686, 689, 81 L. Ed. 1036,
'* * * Petitioner and other insured employees were not parties to, nor did they have any voice in, the negotiation or consummation of the contract. * * *'
Further (301 U.S. on page 203, 57 S. Ct. at page 690),
'* * * But the certificate is not a part of the contract of, or necessary to, the insurance. It is not included among the documents declared 'to constitute the entire contract of insurance.' Petitioner was insured on the taking effect of the policy long before the issue of the certificate. It did not affect any of the terms of the policy. It was issued to the end that the insured employee should have the insurer's statement of specified facts in respect of protection to which he had become entitled under the policy. It served merely as evidence of the insurance of the employee. Petitioner's rights and respondent's liability would have been the same if the policy had not provided for issue of the certificate. * * *'
This conclusion does not offend the public policy either of Pennsylvania or New York.
Motion of brothers and sisters of the insured employee, John T. Harrington, for judgment in their favor will be granted and the proceeds of the policy will be ordered paid to the said brothers and sisters, to wit: Elizabeth Harrington Mitchell, Gertrude Harrington Liebel, Winifred Harrington Pikulski, Michael Harrington, Eugene Harrington, and Helen Harrington Feichter, equally.