Baldwin v. Hartford Insurance Company.

BALDWIN V. HARTFORD INSURANCE COMPANY.

(60 N. H. 422.)

Insurance-fire — severability.

Under a fire insurance policy conditioned against alienation without notice, such alienation of one of several parcels avoids the policy, unless it can be said as matter of law that the remaining risk is not increased.*

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CTION on an insurance policy. The opinion shows the facts.

W. & H. Haywood, for plaintiff.

S. C. Eastman, for defendants.

CLARK, J. [Omitting minor matters.] This presents the question, whether the alienation by the insured of one of several parcels of real estate separately valued in the same policy, containing a provision against alienation, avoids the policy as to the parcels not alienated. Upon this point the authorities are not agreed. May Ins., §§ 277, 278; Clark v. Ins. Co., 6 Cush. 342; 53 Am. Dec. 44; Kimball v. Ins. Co., 8 Gray, 33; Lee v. Ins. Co., 3 id. 583, 594; Friesmouth v. Ins. Co., 10 Cush. 587; Gould v. Ins. Co., 47 Me. 403; Barnes v. Ins. Co., 51 id. 110; Ins. Co. v. Spankneble, 52 Ill. 53; Quarrier v. Ins. Co., 10 W. Va. 507; s. c., 27 Am. Rep. 582; Merrill v. Ins. Co., 73 N. Y. 452; s. c., 29 Am. Rep. 184.

Without considering the question whether the contract of insurance in this case is to be regarded as entire and indivisible because a gross sum is insured for a single and entire consideration (Plath v. Ins. Co., 23 Minn. 479), or as severable and divisible because the amount of insurance is apportioned upon separate and distinct items of property covered by the policy (Merrill v. Ins. Co., supra), let us apply the ordinary rules for the interpretation of contracts to this policy. In the construction of contracts the intention of the parties must govern, the subject-matter of the agreement is to be considered, and that interpretation adopted which will give effect to such intention. The object of the stipulation in a policy of insurance against a sale of the property insured is apparent. It is obviously based upon the idea that the risk and * See McGowan v. People's Mut. Fire Ins. Co. (54 Vt. 211), 41 Am. Rep. 843.

Baldwin v. Hartford Insurance Company.

hazard of loss may be increased by a change of ownership. All men are not equally prudent and cautious in the care of their property. The insurers may be willing to insure the property of A. at a certain rate, when they would not insure the same property for B. at any rate, nor insure it for A. if B. was owner of other property so situated as to affect the hazard of A.'s property. The stipulation being a reasonable one which the insurers have a right to make, and its object being to protect the property insured from increased risk, should be so construed as to give effect to the intention of the parties. If the court can say as matter of law that the alienation of one piece of property does not increase the risk of other property covered by the same policy, then the reason of the condition ceasing, the condition itself may be disregarded. But unless the court can say as matter of law that the risk is not increased, a reasonable interpretation of the contract requires that the stipulation shall be so construed as to give effect to the intention of the parties, and afford that protection against increased hazard which it was designed to secure. Another general and elementary rule in the construction of contracts is, that words are to be understood in their ordinary and popular sense, except in those cases in which the words used have acquired by usage a peculiar sense different from the ordinary and popular one. In this case no words are used which have acquired by usage a different signification from the ordinary and popular one; and if the language is to be understood in its ordinary and popular sense, the conclusion is irresistible that the sale, transfer, or conveyance of the property insured renders the policy void, not merely as to the property alienated, but void as to the whole property insured. Another rule of interpretation is, that the terms of a contract are to be understood so as to have an actual and legal operation, and the construction is to be such that the whole instrument or contract and every part of it may take effect, if it be possible consistently with the rules of law and the intention of the parties. The application of this rule of construction leads to the same result. If the stipulation in the policy relating to the alienation of the property insured is to be limited and made applicable only to the property alienated, it is meaningless and superfluous. The contract of insurance is a contract of indemnity to the person and not to the thing insured. It does not run with the subject-matter of insurance, and pass as an incident by any assignment or conveyance

Towle v. Wood.

of it; and therefore a sale, transfer or conveyance of any part of the property insured renders the policy void as to the property sold or conveyed without any stipulation in the policy prohibiting alienation. To give any legal effect to the conditions in the policy before us relating to the sale, transfer or conveyance of the property, it must be construed and understood to mean what the language imports, that a sale, transfer, or conveyance of the property renders the policy void.

Judgment for the defendant.

STANLEY, J., did not sit; BLODGETT, J., dissented.

An agreement between two savings-bank depositors, that the survivor shall have the other's deposit, not being executed according to the statute of wills

A and each retaining control during his life, is invalid.

A

SSUMPSIT.

The head-note and opinion show the case.

Frink, for plaintiff.

A. R. Hatch, for defendant.

STANLEY, J. The plaintiff concedes that he cannot recover on the ground of a gift inter vivos or causa mortis, but he claims that the act of the parties was a placing of money on deposit, in their joint names, with the intent that the sum remaining should go to the survivor; and he cites Marshal v. Crutwell, L. R., 20 Eq. 328, 13 Moak Eng. Rep. 830; and Batstone v. Salter, L. R., 10 Ch. App. 431; 14 Moak Eng. Rep. 714, in support of this view. Those cases are different in principle from this. In Marshal v. Crutwell the money was deposited in the bank upon the understanding that it was to be drawn by both parties, and the balance remaining at the death of either was to go to the survivor. Here the referee finds that neither intended to give up the right of control of their respective deposits during their respective lives.

Towle v. Wood.

Each party retained absolute control over his deposit during life, but each expressed the desire that the survivor should have the balance remaining at the decease of the other. It was a testamentary disposition of the balance remaining at the decease, but it lacked the requisite formalities of execution to make it effectual. Bartlett v. Remington, 59 N. H. 364, 366.

Another claim of the plaintiff is, that he can recover on the ground of a promise for a promise. The promise, if any, was in substance, "I bequeath to you the balance of my deposit which I do not expend during my life, if you survive me, in consideration of your bequeathing to me the balance of your deposit which you do not expend during your life, if I survive you." There was nothing in this agreement which prevented either party from withdrawing his deposit, and making any other disposition of the money that suited his convenience or pleasure. No liability would have been incurred if it had been done. The mutuality essential to make a promise a sufficient consideration for a promise is wanting, for neither promise was absolute. Each of the parties reserved the right to disable himself to perform his promise. Either party could withdraw all his deposits, and leave the other without any consideration for his promise. It is said that a voidable promise is a good consideration for a promise; but this is not the general rule. It is true in respect to the contracts or promises of infants made with persons of full age. 1 Pars. Cont. 451, 452. This case falls within the principle of Cutting v. Gilman, 41 N. H. 147, 153; Reed v. Spaulding, 42 id. 119; Craig v. Kittredge, 46 id. 57, and Bartlett v. Remington, 59 id. 364.

V.

Another position taken by the plaintiff is, that the agreement and acts of the parties created a trust on the part of each in favor of the other; but the difficulty with this view is, that neither ever parted with the control of his deposit, and never intended to do 80. On the contrary, each retained absolute control, and the unconditional right to make any different disposition of the funds which he chose. These facts are inconsistent with the position that a trust was created. To create a trust, each of the parties must have been deprived of the power of revocation and control. Bartlett v. Remington, supra; Gerrish v. New Bedford Savings Inst., 128 Mass. 159; s. c., 35 Am. Rep. 365; Urann v. Coates, 109 Mass. 581; Ray v. Simmons, 11 R. I. 266; s. c., 23 Am. Rep. 447; Stone v. Bishop, 4 Cliff. 593.

Fellows v. Allen.

Nor was the act of the parties a reducing to possession of the property of the wife by the husband. The husband exercised no control over the fund in the life-time of the wife, and never intended to do it. It was not only necessary that he should reduce it to his possession, but that there should be coupled with this an intention to make it his own. Hall v. Young, 37 N. H. 134; Hoyt v. White, 46 id. 45; George v. Cutting, id. 130, and authorities passim. F. B., never having parted with the possession and control of her deposit, could dispose of it by her will. Judgment for defendant.

CLARK, J., did not sit; the others concurred,

FELLOWS V. ALLEN.

(60 N. H. 439.)

Marriage--wife's ante-nuptial will.

A woman's ante-nuptial will is not revoked by her marriage, (See note,

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p. 329.)

PPEAL from probate of will. The opinion states the point.

Wiggin & Fuller, for plaintiff.

Marston & Eastman, for defendant.

ALLEN, J. [Omitting other points.] At common law a married woman had no power to dispose of real estate by will, nor of personal estate, except by the consent of her husband given at the time, and continued till the probate of the will. 2 Jarm. Wills, 129; 1 Redf. Wills, 21, 22, 23; Tucker v. Inman, 4 M. & G. 1049, 1076; Marston v. Norton, 5 N. H. 205; Cutter v. Butler, 25 id. 343, 350. Her incapacity to make a valid will prevented her from altering a will made before marriage, either by codicil or the substitution of a new will in its place, and also from recognizing it as her valid will. That feature of a will which makes it ambulatory in character until the death of the testator was destroyed, and a woman's ante-nuptial will was revoked by her marriage. Force & Hembling's case. 4 Coke, 60. 61; Hodsden v. Lloyd, 2 Br. Ch. C. 534;