Colburn v. Lansing

By the Court, Ingalls, J. The testator, by his will, did not designate any particular premises to be occupied by Sally Main, but simply imposed upon the executors the duty to provide comfortable house room. for her to keep house by herself during her natural life. By the decree of the. Court of Chancery, certain premises were designated for her to occupy until the further order of the court. While she was thus occupying the premises, the said O. E. Lansing procured an insurance upon the house, in his own name as executor, for $800, and the house having been destroyed by fire, the company paid to him, as such executor, the said sum. Subsequently thereto the said executors, at the expense of the estate, provided house room for the said Sally Main until her death. By the will no particular part of the testator’s estate was charged with the expense of providing for Sally Main. The decree of the court, while it designated the premises which she was to occupy, also provided that the executors should pay from the estate such amount as was necessary to keep ih'e building insured. The provision in the will, for Sally Main* was unconditional, and the estate being, charged with the expense necessary for its performance, was directly interested that she should continue to occupy said premises ; for as soon as' she ceased to occupy the same, the executors were compelled to procure for her house room elsewhere, at the expense of the estate; and to provide against the latter contingency, the insurance was effected by the-, executor, O. E. Lansing, and- the expense attending the same was paid from the funds of the estate, and such insurance was obviously for the benefit of such estate. The estate had, [41] in my judgment, an interest which was the subject of insurance, and could have been enforced against the said company if payment by them had been refused. In Herkimer v. Rice, (27 N. Y. Rep. 173,) Denio J. remarks : “ The law does not require that the assured shall Lave an estate or a property in the subject of the insurance. It is sufficient that he have a direct pecuniary interest in its preservation.” (See also Angell on Insurance, § 57 ; Locke v. N. A. Ins. Co., 13 Mass. R. 67 ; Ex parte Yallop, 15 Ves. Jr. 60; Hammond on Insurance, 21.) It is certainly very clear that the estate was directly interested in the preservation of the house insured; for its destruction at once subjected the estate to the expense of providing for Sally Main elsewhere. The insurance was to O. E. Lansing, executor, which was authorized and enured to the benefit of the estate he represented. (Herkimer v. Rice, 27 N. Y. Rep. 173, above cited. See also Angell on on Insurance, § 79.) The case at bar is clearly distinguishable from Wyman v. Wyman, (26 N. Y. Rep. 253.) In that case the insurance was procured by the intestate for his own benefit, and the loss occurred after his death, and it was held that the interest in the insurance followed the subject insured, and passed to the heirs. In this case the insurance was effected by Lansing, in his own name, it is true, but in the character of executor and in discharge of the trust, and obviously for the purpose of saving the estate the expense of procuring another tenement for said Sally Main, in case the building was destroyed by fire. The purchaser of the premises could not properly claim the money, as the insurance was not effected in his name, nor for his benefit, or made payable to him in case of loss. If the company had refused payment, I do not perceive how a recovery could have been had in favor of such purchaser; all the facts would have been against him, and there could not have been the slightest pretense that Lansing acted as the agent or trustee of such [42] purchaser. It is equally clear that Lansing could not have recovered the money for his individual advantage, as the facts would as effectually have defeated any such claim. Indeed there is no such pretense. Mr> Lansing claims to hold the money not for himself, but for the party to whoin it legally belongs. Such was the attitude he assumed before this action was commenced. I think the facts show clearly that the insurance was effected for the benefit of the estate, by a party charged with the care and control thereof; and that there was an insurable interest, within the principle settled by the Court of Appeals in Herkimer v. Rice, above cited. The fund; therefore, belonged to the estate. The receipt executed by the plaintiffs, under the circumstances, did not conclude them. It was competent for them to show for what purpose it was given, and to what fund it referred, and to inquire into the consideration; and so far, at least; a receipt may be explained by parol. (Filkins v. Whyland, 24 N. 7. Rep. 338. Truscott v. King, 6 id. 161. Haddock v. Kelsey, 3 Barb. 100, 102.) Again, the plaintiffs, in the Complaint, state the facts in regard to the settlement, and allege that the $800 was not included in that settlement; nor was it intended to be, and a foundation was thereby laid for an investigation into the real merits of the transaction and to authorize a proper adjudication in regard to such receipt. (Despard v. Walbridge, 15 N. Y. Rep. 374, 378. Hodges v. The Tenn. M. Ins. Co., 8 id. 416.) Again, the item of $800, under the circumstances, might with propriety be regarded as a transaction by itself, as it was conducted by and in the name of O. B. Lansing, as one of the executors, and not iti the name of all. Martinus Lansing, the co-executor, testifies that he had nothing to do with that matter. This item was not included in the settlement, and the receipt by its terlns runs to the executors jointly, and for the amount which is conceded to be due, exclusive of the $800. And when such receipt was executed the said [43] O. E. Lansing stated that he was ready to pay over the money whenever it was determined to whom it belonged, and suggested that the matter should be submitted to the court for its determination. I therefore conclude that the 'referee properly disposed of the case, and that the judgment should be affirmed,, In regard to the costs of the appeal, I am inclined to think, under all the circumstances) that they should be paid out of the fund. [Albany General Term, March 6, 1866. Judgment accordingly. Miller, Ingalls and Mogehoom, Justices.]