Trott v. Woolwich Mutual Fire Insurance , 83 Me. 362 ( 1891 )

Peters, C. J.

James II. Trott, husband of the plaintiff, in 1872, with his own money, purchased a farm in Woolwich, with buildings upon if, taking the title in the name of his wife. There ivas no agreement between the husband and wife as to the maimer in which she should hold or use the property, but they with their family occupied it as a homestead until 1887, when they vacated it, removing out of the state. In 1886, he procured an insurance on the buildings in his own name, as if his own property. He died in 1888. It does not appear that the insurance company, or any of its officers, knew that the title of the property was in the wife, and not in the husband, until the buildings were consumed by lire in September, 1889.

The action upon the policy is in the wife’s name as executrix of the estate of her husband. We see no way to escape the conclusion that the case must lie controlled by the decision in Clark v. Dwelling-House Insurance Co. 81 Maine, 373, which declares such a policy void. So far the cases are absolutely alike.

The plaintiff’s counsel cites several cases from other states, claiming that they tend to affirm the validity of the present policy. Those eases, if not arising upon facts different from present facts, must be founded, we apprehend, upon statutory provisions, unlike our own, affecting the rights growing out of the marital relation.

The plaintiff contends that a circumstance affecting the policy, distinguishes this case from the one we have cited. It appears that in Juno, 1889, several months before the fire occurred, the company, upon notice that the buildings were vacant, indorsed upon the policy its consent that it should continue in force notwithstanding the non-occupancy, the secretary who made the indorsement having had notice that the husband was then deceased. This act is relied upon by the plaintiff as an estoppel against the company, and a waiver of all error before existing, giving perfection to the original contract.

We do not perceive that an estoppel was created by this fact. The officers of the company were not at the time aware that the wife held the legal title of the property. As the policy was void at first it was just as much so afterwards. There was no new contract or alteration of contract. The company merely waived a forfeiture for non-occupation of the > property, — for nothing else. The policy itself is absolute in its terms, although void, and no indorsement upon it in less absolute terms than those of the policy itself can impart to it validity.

Exceptions overruled.

Walton, Virgin, Libbey, Emery and Foster, JJ., concurred.