Security Ins. Co. of New Haven, Conn. v. Kuhn

Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel rely on the following provision in the policy:

“ This entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

It is contended that appellee was not, at the date of the issuing of the policy, the unconditional and sole owner of the insured property, namely, the two-story and basement frame building, with frame addition, situate in rear of and attached to the brick building number 140 North Union street, Chicago, Illinois, and that she did not own, in fee simple, the ground on which said described building was situated.

“ A tenant in fee simple is he which hath lands or tenements to hold to him and his heirs forever,” so that one can not have a larger or greater estate. 1 Coke upon Littleton, 1 Am. Ed., Chap. 1, Sec. 1; 1 Cooley’s Blackstone, p. 103. It must be conceded that appellee has not such an estate, either in her representative capacity or as beneficiary under the will. In her representative capacity the legal title to all the property, real and personal, devised and bequeathed by the will, is vested in appellee as executrix, and was so vested, at the date of the policy, her co-executor having declined to take any part in the probate of the will or to act as.executor; but appellee had not, as executrix or otherwise, an estate of inheritance, because her title is, by the will, determinable on her death or marriage. But the question remains whether the fact that appellee had not technically title in fee simple, is conclusive against her right of recovery. She had, August 8, 1901, as executrix, the legal title exclusive of all others. The children of the testator had not and have not any vested interest in the devised premises. The words of the will are:

“ Upon the remarriage or death of my said wife, the trust estate hereby created shall at once cease, and the trust property shall thereupon go to, and the title to the real estate become vested in my children, as the whole of my estate remaining unconsumed and constituting such trust fund shall be divided equally between them, share and share alike; and if in the meanwhile any one or more of my children shall have died, leaving a descendant or descendents, such deceased child’s share shall go to his or her issue, descendant or descendants.”

In Haward v. Peavey, 128 Ill. 430, the will, after directing payment of the testator’s debts and providing that the rest or residue of the testator’s property should be held in trust by his executors for the benefit and support of his wife so long as she should remain unmarried, contains these words : “ On the death of my wife, or in the event of her marrying again,, my executors shall then proceed to divide the property among my children.” Ib. 440. The court say:

“ If one or more of the sons named had died before the death of the widow, it would have been doing violence to the language of the will to hold that any estate was thereby vested in them. They would have been excluded by the very terms of the will from the number of those named as beneficiaries. The persons to whom the estate would go being wholly uncertain during the continuance of the particular estate, it must be held that the contingency named, viz., that the persons who were to take the estate should be alive at the death or remarriage of the widow, was a condition precedent to the vesting of the estate, and that until the condition happened the estate was necessarily contingent.” Citing authorities. See also, Walton v. Follansbee, 131 Ill. 147.

In Ducker v. Burnham, 146 Ill. 9, the will is not set out in the opinion, but it appears from the opinion that a life estate was devised to the testator’s wife, remainder to his five children. The contest was over the sixth clause of the will, which clause recognized that by the preceding fifth clause there was a devise to the children. The court held that the children had a vested estate in remainder. The court in that case say:

“ Whether the condition is really precedent or subsequent will depend upon whether it is incorporated into the gift, or description of the remainder-man, or is added after words which have already given a vested interest.”

In the present case the only clause of the will in which the testator’s children are mentioned is the clause last above quoted, and the condition is mentioned in that clause. The court also say:

“It is well settled that, in the interpretation of wills, the intention of the testator must control, and that the whole will and all its parts must be considered in order to ascertain what that intention is.”

The will in question clearly manifests the intention of the testator, that his children shall take nothing until after the marriage or death of his wife. The language is :

“ Upon the remarriage or death of my said wife the trust hereby created shall at once cease, and the trust property shall thereupon go to, and the title to the real estate become vested in my children, and the whole of my estate remaining unconsumed, and constituting such trust fund, shall be divided equally between them,” etc.

Our conclusion therefore is, that the legal title to the ground on which the insured building was, when the policy was issued, was exclusively in appellee. It is an important question whether appellee was bound to disclose her exact title, in view of the circumstances under which the policy was issued. It appears from the testimony of Bowman, the agent of the Eureka Insurance Co., and of Frank G. Kuhn, appellee’s son, who looked after insurance generally for appellee, that Bowman proposed to Kuhn that the $1,250 policy in the Eureka Company should be surrendered and canceled, for the reason that the company did not wish to carry so much insurance as it was carrying on the property, and he told Kuhn that if the policy should be surrendered, he would procure a like policy in another company, on which last condition Kuhn assented to the exchange. It also appears from the testimony of Bowman and Wright, that each of them had been accustomed to procure policies from the other, under circumstances similar to those under which the policy in question was issued, and it would seem that, in issuing the policy in question, Wright, appellant’s agent, relied on the fact that the Eureka Company had issued the policy proposed to be canceled. Wright did not ask Bowman anything in respect to the title, nor did he require a formal written application, as is usual in the case of an owner of property applying for insurance. Bowman, in procuring the policy in question, was not acting as appellee’s agent, but as the agent of the Eureka Insurance Co., and for the benefit of that company. This appears not only from the testimony of Frank C. Kuhn, but from Bowman’s own testimony. Kuhn’s testimony has already been referred to. In the examination of Bowman the following occurred:

Q. “Do you say by this order, that he (referring to Frank C. Kuhn) directed you to place it in the defendant company?” A. “Ho, he did not. I placed it there of my own accord.”

He also testified that he procured the policy because the Eureka Company had too much liability on the risk. So far as appears from the record, appellee was entirely satisfied with her Eureka policy.

What is called by Wright an application is a mere memorandum made by Bowman, as the agent of the Eureka company, for the purpose of apprising Wright of what was wanted by that company. It is a memorandum of the name of the assured, the property insured, the amount of insurance and the premium, etc., in the policy issued by the Eureka Company, and doubtless was sufficient, in view of what was contemplated by the agents of the respective companies, and presumably was in conformity with their prior practice in like cases; but it was not such an application as is required of owners applying for insurance, and can not, as we think, be considered other than a mere oral application. Appellee did not apply for the policy. The memorandum is not even signed in her name. It is signed “Radcliffe & Bowman, Applicant,” and the presumption is that it was delivered to that firm by Wright.

In Philadelphia Tool Co. v. Assurance Co., 132 Penn. St. 236, the defense was the same as in the present case, in respect to which the court say:

“This position rests on one of the almost innumerable conditions, stipulations and provisos which appear on the policy, and which asserts that if the assured is not the sole and unconditional owner of the property, or if the building stands on ground not owned in fee simple by the assured, or if the interest of the assured is not truly stated in the policy, then the policy shall be void. Is this condition applicable to the case presented on this policy? A policy of insurance, like any other contract, is to be read in the light of the circumstances that surround it. This policy was issued without any application or written request describing the interest of the assured in the buildings. Ho actual representation of any sort upon the subject, oral or written, is alleged to have been made by or on behalf of the assured. We ought to assume that a policy written under such circumstances was written upon the knowledge of the representative of the insurer, and intended to cover in good faith the interest which the insured had in the buildings. Fraud is never to be presumed, and in this case no fraudulent representation is shown or alleged, unless it can be deduced from the statements of the insurer, made, as we must presume, on the knowledge of its representative, and for which the insured is in no manner responsible. 'We must also remember that this policy is to be interpreted most strongly against the company whose contract it is. Applying these principles to the question now raised, we conclude that the policy written on the knowledge of the insurer was made in view of the facts of the case, and was intended to cover such interest in the buildings as the insured had. This was a leasehold only, but it was an insurable interest. Presumably it is the interest which an application, if one had been made, would have shown, for it is the only interest which the tool company ever had or claimed to "have.”

See also, Joyce on Insurance, Sec. 496, and Phenix Ins. Co. v. Bowdre, 67 Miss. 620, 635.

In the last case one of the defenses was the inability of the plaintiffs to show that they were the owners of the property in absolute fee simple; a condition of the policy was: “ If the interest of the assured in the property be other than an absolute fee simple title, it must be so represented to the company, and so expressed in the written part of the policy.” The court say:

“ What is meant, then, by the words ‘ absolute fee simple title ’ in this connection ? It can only mean that the assured did not have a limited interest in the property, but that he claimed and held under a deed of conveyance, or other evidence of title, purporting to invest him with an estate in fee simple. It can only mean that the assured held under a paper title conferring upon him this sort of estate as contradistinguished from any limited and inferior one. The reason for this distinction is obvious. The insurer will not deal with or take the great risk of indemnifying against loss and damage a mere tenant, leaseholder or other person claiming and having only some qualified interest in the property; but this contract for indemnity will be made only with the person having the title—the beneficial owner—the person having the absolute, i. e., the vested, as opposed to the contingent or conditional title. It was well said by the court in Ins. Co. v. McGuire, 52 Miss. 231: 'Parties applying for insurance are not called on to settle questions of title with very great precision.’ We repeat and emphasize the remark here.”

The case cited was similar to the present, in that there was no written application by the owner. Appellant’s counsel are very insistent that appellee is not the unconditional and sole owner of the building, but fail to point out who was the sole owner if not appellee, and the condition, if any, of appellee’s ownership. The building is part of the realty, and, as executrix, appellee has the legal title to the realty, and the exclusive management and control of the property, with full power to sell and convey it at her discretion. As beneficiary of the trust created by the will, she has during her natural life, if she remains a widow, the exclusive use and enjoyment of all the property devised. .The language is:

“ The real and other estate hereinbefore to my said executors given, devised and bequeathed, is to be held by them and the survivor of them in trust; first, to and for the exclusive use and enjoyment thereof during the term of her natural life of my wife, Katherina, provided she shall so long remain my widow and unmarried,” etc. “ Property, in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others.” Rigney v. City of Chicago, 102 Ill. 64, 77.

Such is the dominion or indefinite right which appellee has in respect to the property in question. She has, by the very terms of the will, “ the exclusive possession, use, enjoyment and control of it.” Therefore she is the unconditional and sole owner of it.

In reference to the clause as to unconditional and sole ownership, see 3 Joyce on Insurance, Sec. 2048, and cases cited.

Appellant’s counsel contend that if appellee can recover at all, her damages must be limited to her insurable interest, which counsel contend is less than the value of the destroyed property.

Appellee has the legal title as executrix, and is the sole beneficial owner, and, in either capacity, had full right to insure to the extent of the value of the property. It was not necessary that she should be described as executrix or trustee in the policy. She had the right to insure in her own name. 2 Joyce on Ins., Sec. 1694 and 1716; 1 Hay on Ins., Sec. 80.

Counsel for appellant lay some stress on the agreement between appellee and the children of the testator. Assuming that, as between appellee and the children, there was a sufficient consideration for the agreement, which we think at least doubtful, the agreement does not affect appellee’s title to or ownership of the property.

The judgment will be affirmed.