her father, George Duchman, deceased, she was provided for as follows: "9. One full equal share or part of said money thus realized, I give, devise, and bequeath, unto my friend, George A. Wallace, of Lancaster City, Pa., to be held by him, in trust, as Trustee of my daughter Mrs. Emma Overly during her natural life, and to pay her, annually, the net income or interest thereof, and upon the death of my said daughter, Mrs. Emma Overly, to pay said money thus held, in trust, unto her, my said daughter's children, share and alike, as provided for by the Intestate Laws of Pennsylvania." The testamentary trustee, George A. Wallace, has been succeeded by Dr. Barton M. Winters. Emma L. Överly has transferred her entire interest to her son, and both ask that the trust be terminated and that the trustee be ordered to pay the moneys in his hands to the transferee. Emma L. Overly never had but the one child and her age exceeds the probable gestation period. While the laws of nature seem arbitrary and as a rule interdict conception at an age less than that of the mother petitioner, the laws of the land rest not upon this rule, but on the exception. We learn from Holy Writ that Elizabeth of old, though called barren, and after she was well stricken in years, became the mother of the great fore-runner. The question arises, did the testator intend the daughter's children to take as of at the time of his or her death. If a remainder at the time of the death of the testator vested absolutely in the daughter's children then living, her interest having passed by assignment to her only child, there would seem to be no substantial reason for denying what the petitioners ask, but inconveniently it appears that no remainder at the testator's death vested in his daughter's child, and if it did, it was subject to being divested to let in after-born children. The title was put in the trustee, to remain in him until after the death of the testator's daughter-"I give, devise, and bequeath, unto my friend. George A. Wallace . . . in trust, as Trustee of my daughter Mrs. Emma Overly during her natural life, . . . and upon the death of my said daughter, Mrs. Emma Overly, to pay" to her “children, share and alike "-thus interfering with an interpretation which would give only to the children of the daughter living at the death of the testator. It manifestly was his intention that the corpus of the bequest should not pass from the trustee to the daughter's descendants until after her death, and then to those then in existence. The last clause, " as provided for by the Intestate Laws of Pennsylvania," was intended to exclude a limitation to children, to send the bequest down the line, embracing the issue of the daughter. That it was the intention to include all of the daughter's descendants, not only the child living at the death of the testator, is strengthened by the direction to pay, not to the daughter's child, but to her children, and they were to take share and alike." Knowing when he made his will that she had but one child, the testator clearly indicates an intention to provide for others that might be born, but it would not incontestibly follow that he contemplated others than those born in his lifetime, except that he makes an unusual statement in his will that at the time of its execution he is ninety-seven years old, and that he gave the corpus to a trustee during the life of his daughter, only after which to pay to her "children share and alike." Only after her death can the revesting occur, and then in her children, which contemplates the possibility of more than one child, which, owing to his advanced years, it is not likely that the testator ever expected to see. Inconceivable is it that any children were intended to be excluded. Had the life interest been given to the daughter with remainder to her children, the presumption would have been the other way. Even if the trustee be willing to part with any interest which he may have in the bequest, the daughter is living, and, therefore, there is a possibility of other children, and, therefore, the prayer of the petitioners must be denied. For some reason, which we will rot now attempt to fathom, a petition simi- | Landis' 2 story brick dwelling insured lar to this, and in this estate, met with a in the company. Being 20 x 28 ft.; different fate, and without an affirmation 2 story wing 12 x 6 ft., with frame atby the court of last resort the trustee tachment 8 x 10 feet, 3 flues, shingle paid out on a decree which we believe roof, $1,000." A fire occurred on October 30, 1907, whereby the buildings in was erroneous. Rule dismissed at the cost of the peti- sured were totally destroyed, and the tioners. Common Pleas--Law. C. P. OF LANCASTER COUNTY. plaintiff now claims the full amount of the insurance mentioned in the policy, as due to him. It appears that, on May 25, 1891, Abraham L. Neff and wife conveyed this property to W. D. King, and that, when he secured the insurance, he was the owner of it. But on October 5, King vs. Lancaster County Mutual Insur- 1905, he and his wife conveyed the same ance Company. to C. H. Obreiter, and on the same day C. H. Obreiter conveyed to Sadie H. Fire Insurance-Conveyal to wife by King, the wife of W. D. King. Mrs. owner Notice Assessments · Insurable interest. Where an owner of real estate takes out a policy of fire insurance thereon and afterwards conveys the property through a third party to his wife without notifying the company or transferring the policy, he cannot recover thereon, although he continued to pay assessments and after the company had refused to pay his loss, he received notice of and paid an assessment levied before the fire. tenant by the courtesy, that was not the interest described in and protected by the policy and his conveyance ended the interest insured. Even if he had an insurable interest as It is not material in such case that the policy did not contain the usual provision as to transfer. January Term, 1909. No. 21. King was the owner at the time of the fire. No notice was ever given to the insurance company of this transfer of the title. Assessments were, therefore, levied from time to time, and all were paid by W. D. King. He testified that, after he had sent notice of his loss to the company, some one, whom he did not know, went out and looked at the property and made out a statement of said loss, and he was subsequently informed by the company that "they were sorry that they couldn't allow him "anything on the policy, as the property was sold"; that about two weeks after he received this letter, a notice of an assessment came by mail to him, and he paid it. The assessment, thus paid, had Rule for judgment for plaintiff n. o. v. been levied before the fire occurred. Rule for a new trial. T. B. Holohan, R. V. Alexander, A. F. Shenk and E. M. Gilbert, for rule. Chas. W. Eaby, contra. Two questions have arisen in this controversy: First, did W. D. King still retain a right to recover on this policy because assessments were levied upon it and paid by him after he had parted January 1, 1910. Opinion by LAN- tain an insurable interest by reason of with his ownership? Second, did he reDIS, P. J. On August 11, 1891, the defendant company issued its policy of insurance to W. D. King on his 2 story frame dwelling house situate in said (Lancaster) township on south side of the Philadelphia Pike and opposite East End Lancaster City Street Railway Car Depot now used as a hospital for horses and about 40 feet west from Mary Ann his being the husband of Sadie E. King? The policy did not contain any provision relating to the sale or transfer of the property covered by the insurance; but this I conceive is not of any great importance. If he had no interest in the property insured, it is against public policy to permit him to recover the insurance. Gilbert vs. Moose, 104 Pa., 74. So far as an actual existing interest vides that the ownership of the insured shall be sole and unconditional, and that any change of ownership, except the death of the insured, shall void the policy, a conveyance by the insured of the property to his wife through a third person, without the knowledge or consent of the insurance company or its duly authorized agent, renders the policy void." See, also, Bemis vs. Harborcreek Mutual Fire Ins. Co., of Erie, 200 Pa., 340. (such as was stated in the application | Franklin Fire Insurance Company, 28 and policy) is concerned, W. D. King Sup., 425. It was there decided that, did not possess it when the building "where a policy of fire insurance prowas destroyed, although he did when the insurance was obtained. He had conveyed his property to Obreiter, who in turn transferred it to King's wife, and no assignment of the policy was ever made. In the case of Olyphant Lumber Company vs. People's Mutual Live Stock Insurance Company of Philadelphia, 4 Sup., 100, Rice, P. J., says: "A sale of property insured does not carry with it the policy of insurance. The policy is not an insurance of the specific thing without regard to the ownership, but is a special agreement of indemnity with the person insuring against such loss or damage as he may sustain. When he parts with the title to, and possession of, the property, and has no further interest in it, he can sustain no loss or damage by its destruction, but the loss, if any, is that of his grantee. In the absence of an assignment, the grantee cannot recover on the policy, because the insurer has no contract with him, and the grantor cannot recover because he has sustained no loss." To the like effect is our own case of Snodgrass vs. Southern Mutual Insurance Company, 14 LANC LAW REVIEW, 377, where the late Judge Livingston said: "A claim has been made, or notice of a claim given, by the purchaser, but it is doubtful if any recovery can be had. In the absence of an assignment, the grantee cannot recover on the policy, because the insurer has no contract with her; and the grantor cannot recover, because she has not, nor has the estate she represents, sustained any loss." In Grevemeyer vs. Southern Mutual Fire Insurance Co., 62 Pa., 340, an assured sold the property insured, taking a judgment for purchase money and retaining the policy. The policy of insurance was not transferred, nor did the defendant company have notice of the sale of the property. It was held that there could be no recovery of the insurance. But the question now raised (with the exception that the policy in suit is not a standard policy) came before the Superior Court in Kompa vs. If, then, the policy became void by reason of the conveyance of the real estate by King, does the payment of assessments, or an assessment, even after the fire, work an estoppel in his favor? In Light vs Countrymen's Mutual Fire Insurance Company of Lebanon Co., 169 Pa., 310, it appeared that the plaintiff, while the owner of premises on which a barn was erected, insured it against loss by fire, and subsequently he sold the property. Before delivering the deed, he took it and the policy of insurance to the secretary of the insurance company and asked advice as to how the insurance could be fixed so as to be security for a judgment to be given to him in part payment of the purchase money. The secretary told him to hold the policy as it was, and assessments would be sent to him, and after the judgment was paid, the policy could be transferred to the purchaser. This was done, and the assessments were so paid, and after a fire which destroyed the barn, the plaintiff brought suit upon the policy to recover the loss. The defense was want of insurable interest. It was held that, when the plaintiff sold the land, he parted with all his title, and, therefore, had no insurable interest; that the mere holding of a judgment would not confer such insurable interest; but that the instructions of the secretary stopped the company from asserting want of insurable interest. Here, the conveyance to Obreiter rendered the policy void, but the company had no knowledge of it until after the fire had occurred. The assessment which was paid by King was made before the fire, and when the company had no reason to suppose that King had parted with his title. It was paid by him after he had been notified that the policy was void. Who sent it to him has not been shown. The two cases, therefore, are not analogous, and the general rule and not the exception must prevail. In Girard Fire and MaC rine Ins. Company vs. Hebard, 95 Pa., 45, Mr. Justice Green said: "A waiver, to be effective, must be intentional, and it would be impossible to predicate such a purpose of any act or omission of the defendant in this case. The positive act done was a refusal to consent, and an immediate notice of such refusal to the persons from whom the application for consent was received. To constitute such an act and the omission to do something further which the contract did not require into a voluntary waiver of the contract rights of the company would be a perversion of justice." Unless, then, King, by reason of his tenancy by the curtesy in his wife's real estate retained an insurable interest covered by the policy, even after he had parted with his title, there could be no recovery in this case. In Bemis vs. Harborcreek Mututal Fire Insurance Co., supra, it was decided that a conveyance by the plaintiff of the property insured made void the policy, even though it was within about four months reconveyed back to him; and the same is true when the conveyance is to the wife through a third person: Chulek vs. United States Fire Insurance Co., 30 Sup., 435. It follows that, under the facts here proven, the conveyance to Obreiter would certainly have the same effect. It is true that, in Harris vs. York Mutual Insurance Co., 50 Pa., 341, it was held that a husband, as tenant by the curtesy of the real estate of his wife, or as her agent, may effect a valid insurance thereon in his own name. There might, for this reason, be some force in this proposition which the plaintiff advances, had King insured the property after his wife had acquired title. But, even then, an examination of the subsequent cases shows that the doctrine of the Harris case had been very much abridged. Thus, in Diffenbaugh vs. Union Fire Insurance Company, 150 Pa., 270, Paxson, C. J., said: "The plaintiff relies upon Harris vs. York Mutual Insurance Co., 50 Pa., 349, Story on Agency, and some other authorities, to sustain her position that, where an insurance is effected by an agent, he may insure in his own name, or in the name and for the benefit of his principal. Story does certainly lay down this doctrine, and we are not now disputing it. All that Harris vs. The Insurance Company decided was, that a tenant by the curtesy has an insurable interest in the real estate of his wife. It is true, the language of Woodward, C. J., is broader than the point decided." The question of tenancy by the curtesy does not, however, seem to me to be very important. It is not claimed that the policy was taken out to protect that interest, and can it be maintained that the subsequent acquiring of the property restored the void policy to life? In Duda vs. Home Insurance Co., 20 Sup., 244, it was said that "the question is not whether the assured had an insurable interest, but whether he had the interest described in the policy." See, also, Farmers' Mutual Insurance Company vs. New Holland Turnpike Company, 122 Pa., 37; Beddall vs. Citizens' Insurance Company, 28 Sup., 600. I am, therefore, of the opinion that this case was properly decided; that the policy, by reason of King's conveyance to Obreiter, became void; that its efficiency was not restored by virtue of the subsequent acquisition of the property by Mrs. King; and that there was no such waiver as precludes the defendant company from setting up its defense. For these reasons, the rules are discharged. Rules discharged. Legal Miscellany. Cases of Interest. CONFLICTING JURISDICTION OF STATE AND FEDERAL COURTS.-In the proceedings to forfeit the permit of the WatersPierce Oil Company in Texas a receiver was appointed in the state court, and subsequently an appeal was taken to the Court of Civil Appeals, and supersedeas bond given. On the same day application was made in the Federal Circuit Court for the appointment of a receiver. The appointment was made, and the receiver was put into possession of the property on the theory that the proceedings in the state court left the property no longer in custodia legis, but liable to seizure by adverse proceedings. The state applied to the Circuit Court, asking it to set aside its order appointing the receiver. This it refused, an appeal was taken, and the case in due course reached the United States Supreme Court. Palmer vs. State of Texas, 29 Sup. Ct. 230. The court lays down the broad proposition that if the state court had acquired jurisdiction by the proceedings to appoint the receiver, and had not lost it by subsequent proceedings, the federal court had no right to intervene. The conclusion is reached that the state court did not lose jurisdiction by the appeal and supersedeas in the receivership proceedings, and the federal court ought not to have appointed a receiver to take possession of the property. MALICIOUS KILLING OF HOUNDS.While the cattle and swine of appellant were comporting themselves with propriety within his corral, a pack of hounds. with riotous bursts of music came again and again through the lot, to the consternation and injury of the stock. The cows retreated to the wall showing signs of distress and sounding the bovine call for help; the hogs broke the fence. Appellant in State vs. Churchill, 98 Pacific Reporter, 853, after repeated and fruitless efforts to dissuade these visitations, shot one hound and wounded others while they were pursuing his pigs. The Idaho Supreme Court held that one may assume that the fox-hound when he gallops and cakewalks up and down the barn lot to the confusion and consternation of the cattle and hogs, is bent on and amiable to stock, the cows and the mischief. Even were the hounds kindly swine had no notice that while they were baying, bawling, and yelping they would not bite, maim, or destroy them. dogs were either chasing the live stock which their master owned. Appellant or trailing a wild animal, neither of cannot be convicted of maliciously slaying them.-Chicago Legal News. The defendant was sued for borrowing a kettle and smashing a hole in it. In defense his ingenious counsel proved (1) That the kettle had not been borrowed; (2) that there was a hole in it when it was borrowed, and (3) that there was no hole in it when it was returned. O. C. ADJUDICATIONS. David Rutt, East Earl, $146.50. 640.27. Mary L. Remley, city, $69.05. Caroline M. Kinzer, New Holland, $1,870.40. Thursday, January 6, 1910. Elizabeth A. Swope, city, $6,029.75. |