In Re the Will of Wilson

Seawell, J. Tbe contentions of tbe appealing claimants, called caveators in tbe record, may be stated succinctly as follows: Tbe insurance, under tbe circumstances outlined, must be presumed to have been made in tbe interest of all those having an interest in tbe property — both tbe tenant for life, who took out tbe insurance, and tbe remaindermen. Therefore, tbe loss paid must stand for tbe realty and go to tbe claimants, as heirs at law, in proportion to their interests; and tbe life tenancy having fallen in without any use having been made of tbe insurance, they are now entitled to their respective shares. They contend that this view is strengthened by tbe fact that their estate is one of greater dignity than that of tbe life tenant, and perhaps of greater money value, and that tbe amount of insurance taken out was apparently sufficient to cover tbe actual value of tbe property, both to tbe life tenant and to tbe remaindermen. It is further pointed out that tbe *507 testator made no specific reference to tbe insurance money in bis will, and tbat it is found in tbe bank intact. Moreover, it is argued tbat tbe policy itself designates tbe property as “occupied by owner as family dwelling” and tbat, since there is nothing to distinguish him as life tenant, it must have been tbe intent of tbe parties to tbe contract of insurance to insure tbe whole property for tbe interest of both tbe life tenant and tbe remaindermen. In support of this position', counsel cites In re Haxall v. Shippen, Leigh’s Reports (Va.), Vol. X, 536—a case in many respects factually similar to tbe case at bar, and which might be at least persuasive, if tbe question were open here; but we fear tbat it is not. Houck v. Ins. Co., 198 N. C., 303, 151 S. E., 628, cited in appellants’ brief, is, we think, eliminated as an authority in this case by tbe statement of fact on p. 304: “. . . tbe said N. E. Houck informed tbe agent of tbe defendant company of tbe true conditions of tbe title to said land and bouse, and requested said agent to issue a policy which would protect all persons who were interested in said house, in the event the same should be damaged or destroyed by fire." It is to be noted tbat tbe controversy in tbat case arose over a restriction in tbe policy to tbe effect tbat tbe policy should be void “if tbe insured was not tbe owner in fee simple of said land, or was not tbe sole and unconditional owner of said bouse” (loe. cit. id., p. 304) ; and the' issue turned on whether tbe insurance company bad knowledge of tbe facts; also, on tbe insurability of plaintiff’s interest; and there was no controversy over tbe issue presented here. We think tbe legal question raised in tbe present case was definitely settled in Stockton v. Maney, 212 N. C., 231, 193 S. E., 137, in which tbe factual situation seems practically identical with tbat now presented in tbe case at bar. In tbat case, Mr. Justice Connor (who also wrote tbe opinion in Houck v. Ins. Co., supra), speaking for tbe Court, said: “As such tenant for life, James W. Burleson bad an insurable interest in tbe dwelling bouse which was located on one of tbe lots situate in tbe town of Barnardsville and which was owned by Miria E. Burleson in fee at her death. 26 C. J., p. 34, sec. 17. “Nothing else appearing (Houck v. Ins. Co., 198 N. C., 305, 15 S. E., 628; 21 C. J., p. 954, sec. 92 [9]), tbe policy of insurance which James W. Burleson procured to be issued to him on tbe dwelling bouse, insured only bis interest in said dwelling bouse. It did not insure tbe plaintifE, as remainderman. "When tbe dwelling bouse was destroyed by fire, tbe amount due under tbe policy was paid to James W. Burleson, to cover bis loss. Tbe plaintiff bad no interest in said amount, and therefore, in *508 no event, in tbe lots purchased by James W. Burleson and paid for by him out of said amount. See Batts v. Sullivan, 182 N. C., 129, 108 S. E., 511.” The cautious statement found in this quotation — “nothing else appearing”- — no doubt had reference to fundamental differences in fact or law, such as appear in the Houck case, supra, and cannot be expanded to cover minor distinctions which do not affect the principle. Notwithstanding the able manner in which the arguments were presented, we are unable to avoid the conclusion that the case at bar is controlled by Stockton v. Maney, supra, and, therefore, the judgment of the court below must be Affirmed.