Clark v. Leverett , 159 Ga. 487 ( 1924 )

Hines, J.

Where a policy of insurance, to the full value of the property, is taken out by the life-tenant for his own use, and the premises are destroyed by fire, and the full insurance is collected by him, the authorities on the question of the rights of the remaindermen in the proceeds of the insurance money are in conflict. Different rules have been adopted by different courts. We may designate them as the Massachusetts, Rhode Island, and South Carolina rules. The Massachusetts rule is as follows: “A life-tenant is not required to use the proceeds of insurance obtained by him on a total loss of buildings insured in his own interest, in rebuilding on the premises, and can not be held accountable to the remaindermen for such money, even if it amounts to more than the value of the life-tenant’s interest,” and is equal to the whole value of the property destroyed-. Harrison v. Pepper, 166 Mass. 288 (44 N. E. 222, 55 Am. St. R. 404, 33 L. R. A. 239); The Rhode Island rule is this: If the policy covers merely the life-tenant’s interest, he is entitled to the insurance in full; but if the policy is issued to him for the full value of the fee and this amount is recovered by him, he is a trustee for the remainderman as to the excess of the amount received over the value of his life-interest. Sampson v. Grogan, 21 R. I. 174 (42 Atl. 712, 44 L. R. A. 711). The South Carolina doctrine is this: Moneys collected by a life-tenant upon a policy of lire insurance upon- a building subject to the tenancy, though the premium has been paid with the personal funds of the life-tenant, stand in place of the property destroyed, and should therefore be used in rebuilding it, or should be held by the life-tenant for .the benefit of the remainderman after such tenant’s death, in which case the life-tenant would be entitled-to the interest on the fund during his life. Green v. Green, 50 S. C. 514 (27 S. E. 952, 62 Am. St. R. 846).

The question involved in this case has never been passed upon by this court; and we are now required to lay down the true rule applicable under the facts of this case. We are now free to establish in this State such rule. The Massachusetts doctrine is based upon two propositions. One is that, in the absence of anything that requires it in the instrument creating the estate, or of an agreement to that effect on the part of the life-tenant, the life-tenant is not bound to keep the premises insured for the benefit of the remainderman; that each can insure his own interest; but in the absence of any agreement neither has any claim upon the proceeds of the other’s policy. The other proposition is, that the contract of insurance is a personal one, and inures only to the benefit of the party by whom it is made and by whom the premiums are paid. The reasoning upon which the Massachusetts rule is bottomed is not convincing and controlling. We can not agree to the proposition that in all cases the life-tenant is not bound to keep the premises insured for the benefit of the remainderman. While the tenant for life is entitled to the full use and enjoyment of the property, he is required by our law to exercise in such case “the ordinary care of a prudent man for its preservation and protection.” Civil Code (1910), § 3666. If the exercise of ordinary care requires him to insure, his failure to do so would render him liable to the remainderman at least for damages. Loss resulting from such negligence would amount to waste. If such waste was both permissive and voluntary, and was committed in a manner evidencing an utter disregard of the rights of the remainderman, the life-tenant would forfeit his estate. Parker v. Chambliss, 12 Ga. 235; Roby v. Newton, 121 Ga. 679 (49 S. E. 694, 68 L. R. A. 601); Brown v. Martin, 131 Ga. 338, 341 (13 S. E. 495, 39 L. R. A. (N. S.) 16); Grimm v. Grimm, 153 Ga. 655 (113 S. E. 91). The fact that the life-tenant, acting in his own behalf, insured this property for his own benefit would indicate that he thought it prudent to insure, and is persuasive proof that “the ordinary care of a prudent man for the preservation and protection” of this property required him to insure it for the benefit of the remainderman as well as himself. But it must be borne in mind that we are not dealing in this case with the neglect of the life-tenant to insure, but with the disposition of the proceeds of the insurance when he ,did insure for the full value of the property, and upon loss of the property received funds sufficient to cover the full value of the property.

Nor do we think that the second proposition is a sound one in all cases. If an agent insures the property of his principal in his own name, the latter would be entitled to the insurance money. Graham v. Fire Insurance Co., 48 S. C. 195 (26 S. E. 323, 59 Am. St. R. 707). If a trustee insures in his own name property of his cestui que trust, the latter would be entitled to the proceeds of the insurance. If a carrier insures the goods of a shipper in his own name and the same are destroyed, the shipper would be entitled to the proceeds of the insurance. So if a guardian insures the property of his ward in his own name, in ease of its loss by lire the ward would be entitled to the insurance money.

Both the Bhode Island and South Carolina doctrines are closely akin. Both rest upon the foundation that the relation between the life-tenant and the remainderman is one of trust or quasi-trust. Does such relation exist between them in this State? We have •already seen that it is the duty of -the life-tenant to exercise ordinary care in the protection and preservation of the remainder estate. Whoever is charged with the duty of protecting and preserving property for the use of another occupies a relation of trust to the latter. It is not necessary that the relationship should be that of an express trust. It may be only that of a quasi-trust. “Because of this duty to preserve and protect the estate in remainder, his relation to the remainderman is to a certain extent a fiduciary one, and has frequently been termed an implied or quasi-trusteeship.” 17 B. C. L. 625, § 15. The power of a court of equity to enjoin the life-tenant' from committing waste is based upon the principle that the tenant is considered in the nature of a trustee for those in remainder. Smith v. Daniel, 2 McC. Ch. (S. C.), 143 (16 Am. D. 641). It is true that the life-tenant is a trustee only in the sense that a duty rests on him as life-tenant to have merely due regard for the remainderman, a duty giving him the character rather of a quasi-trustee. Hardy v. Mayhew, 158 Cal. 95 (110 Pac. 113, 139 Am. St. R. 73). The above provision from Buling Case Law was quoted with approval by the Chief Justice who delivered the opinion in Barmore v. Gilbert, 151 Ga. 260 (106 S. E. 269, 14 A. L. R. 1060); and the principle that the life-tenant is a quasi-trustee for the remainderman in protecting and preserving the remainderman’s interest was expressly stated. Upon due analysis nothing to the contrary of this was held by this court in Russell v. Kearney, 27 Ga. 96. It is true that in the third headnote in that case it was said: “That an estate is given to A- for life, or years, and to B. in remainder, does not make A. the trustee of B. as to B. ’s remainder.” In that case the court was dealing with .the question whether the life-tenant bore the relation of an express trustee to the remainderman, and not with the question whether the relationship was one of quasi-trustee. In that case a slave was bequeathed by testatrix to her son, Bichard B. Kearney, to be held by him during his life and after his death to go to his widow. Kearney during his lifetime sold this slave to the defendant, Russell. After the death of Kearney, the widow brought trover against Russell to recover this slave. The trial judge was requested to charge that the husband stood in the relation of trustee for this property, and that, if the defendant bought from him without notice, he obtained a good title against the remainderman. The trial judge declined to so charge. This court affirmed his ruling. This was not a holding that the life-tenant occupies no fiduciary relation to the remainderman, but that, under the will in which the testatrix devised this slave to her son for’ life, and at his death to his widow, no such office of trustee existed in the husband that would authorize him to sell the property in which he had a life-estate. This court did not hold in that case that the life-tenant .does not occupy a fiduciary relation to the remainderman. It only held that such relationship was not one of express trust. So that case is not authority for the proposition that such relation is not one of implied trust. So we are of the opinion that the naked relation of life-tenant and remainderman makes the former an implied or quasi-trustee for the preservation and protection of the interest of the remainderman; and that under our law the life-tenant must exercise ordinary care and prudencé in protecting and preserving the property of the remainderman. ■ Whether the life-tenant exercises such ordinary care and prudence is generally a question of fact for determination by a jury; and it can not be said as a matter of law that the duty to insure does not rest upon the life-tenant.

But in this case we are not dealing with the naked relation of life-tenant and remainderman. Here the life-tenant was guardian for the remainderman. The relation of life-tenant to the remainderman is one of express trust, and as to the property of the ward the guardian is the trustee. 28 C. J. 1123, § 204. A guardian is bound to use the same care and management that a prudent man would exercise in the protection of his own property. This is the rule applicable to all persons acting in a fiduciary character. If ordinary care and prudence requires the guardian to insure the property‘of his ward, and he should fail to do so, he would be liable to his ward for any damages sustained by such neglect. If this case involved the liability of the guardian for neglect to insure the property of the ward, it might be a question of fact, to be determined by a jury, whether he was lacking in ordinary care and prudence in not insuring the property of the ward. It has been said that “It is the duty of a guardian to keep his ward’s property insured, and he is entitled to be credited with all proper disbursements therefor.” 28 C. J. 1151, § 257. To support this text the cases of Means v. Earls, 15 Ill. App. 273; Sims v. Billington, 50 La. Ann. 968 (24 So. 637); Mahony v. Mahony, 41 La. Ann. 135 (5 So. 645), are cited. The case first cited is not authority for the proposition that it is the duty of a guardian to keep his ward’s property insured. The remaining cases cited are authority for the proposition that he is entitled to be credited for all proper disbursements for insurance on the property of his ward. We think that the duty of the guardian to insure the property of his ward depends upon the question whether ordinary care and prudence, under all the circumstances, requires him to insure. If such duty rested upon him under the rule that he must exercise ordinary care and prudence, he would be liable for his neglect to discharge it. If it did not, he would not be liable. The fact that the guardian can not borrow money and bind his ward therefor, and that he can not, by any contract other than those specially allowed by law, bind his ward’s property, or create a lien thereon (Civil Code (1910), § 3074), would not relieve him from the 'duty of insuring the ward’s property, if ordinary care and prudence required its insurance, if he had funds with which to effect such insurance. Lack of funds might excuse him for neglect to insure. But the question of the liability of the guardian to his ward for neglect to insure the property of the latter is not involved in this case. The guardian did not neglect to insure the property. He insured the property to its full value; and he received the full insurance, which covered the value of both interests. The question before us is whether, having so insured the property, the guardian is liable to the ward for so much of the insurance money as will cover the value of the ward’s interest.

It must be borne in mind that the Massachusetts rule was announced by the Supreme Court of that State in a case involving the naked relationship of life-tenant and remainderman, and in which the life-tenant bore no express trust relation to the remainderman. Even in such a case we do not think the Massachusetts doctrine sound. We are dealing, however, with a case where the life-tenant was guardian for the remainderman. Under these circumstances, where either the life-tenant or the remainderman insures property for its full value and collects the full insurance, the insurance money should stand in the place of the property destroyed, and should be used to restore the building destroyed, or be held by the life-tenant for the remainderman after the death of the life-tenant, the latter being entitled to the use of the fund during his life. The fact that the full premium was paid, and the policy issued for the full value of the fee, may fairly be taken to indicate the real intent of the life-tenant to insure the whole property, not only for his own benefit, but also for the benefit of others interested in the property. When the insurance was taken out by the life-tenant under such circumstances, it may be concluded that he took it ou' for his own benefit and that of the remainderman; and when the remainderman under such'circumstances takes out the insurance, it may fairly be inferred that he insured the property for his own benefit and that of -the life-tenant. Welsh v. London &c. Corp., 151 Pa. St. 607, 618 (25 Atl. 142, 31 Am. St. R. 786); Smith v. Cameron, 158 Mich. 174 (122 N. W. 564).

In Green v. Green, supra, which was a case in which the relation of the life-tenant to the remainderman was unaffected by any express trust, the Supreme Court of South Carolina well said: “We, therefore, think that a sound public policy requires that any money collected by a life-tenant on a total loss by fire should be used in rebuilding or should go to the remainderman, reserving the interest for life for the life-tenant.” If that ease is sound, where the relation between the parties is unaffected by any express trust, how much stronger is the case where the relation between the life-tenant and remainderman is that of guardian and ward. Here the trust is express. To permit the guardian, who is the life-tenant, to insure the premises for their full value and collect the full insurance, and appropriate all of it to his own use would not only violate public policy in this respect, but would violate the familiar principle that a guardian can not make any profit for himself out of his dealings with his ward’s estate and that he must pay all such profits to his ward. Mayor &c. of Macon v. Huff, 60 Ga. 221; Dowling v. Feeley, 72 Ga. 557. After a thorough search, we have been unable to find any ease which is on all-fours with the one under consideration. The nearest approach to the case at bar is that of Smith v. Cameron, supra. In that case a remainderman, who was a de facto guardian for an incompetent life-tenant, insured premises for more than the interest of the life-tenant, and upon loss collected the full amount and expended it in rebuilding the barn, in the interest of both the ward and the remainderman. It was undertaken to hold the guardian responsible to the ward for the full insurance, on the ground that the property was insured for the benefit of the ward alone, and that the remainderman had no interest in the proceeds of the' insurance. The Supreme Court of Michigan held that the guardian should' be credited with the insurance money expended in restoring the burned premises. This ruling was based upon the decision in Green v. Green, supra. In the Michigan case the remainderman was guardian, and insured the property as such. The Michigan Supreme Court held that it fell within the South Carolina case; and that, where the remainderman was guardian for the life-tenant, and insured the property for his ward, the insurance was for the benefit of both life-tenant and remainderman. So while the facts in the two cases are not the same, the ruling rests upon the same theory. The Michigan case rules the converse of the South Carolina case; but what is sauce for the goose should be sauce for the gander.

So we are. of the opinion that where a guardian, who owns a life-estate in property, his ward owning the remainder estate therein, insures the whole property, both his life-interest and the remainder interest, for their full value, and upon the loss of the property by fire receives the value of both interests in full, he should hold the money received for the use and benefit of such ward; and he should be required either to restore the building, or to hold the fund for the benefit of the life-tenant at his death, he being entitled to the interest thereon during his life. Having insured both his own and the ward’s interests in full, and having received funds sufficient to cover the loss of both, there can be no possible reason, in equity and good conscience, why he should not account to the ward for the value of his interest in the property.

In view of the above ruling, the petition stated a cause of action entitling- the plaintiff to the relief sought, and the court below erred in dismissing the same on demurrer.

Judgment reversed.

All the Justices concur, except-