The defendants issued a policy of insurance, dated February 23, 1874, for the term of six years, to Hiram E. Eoberts, of Eollinsford, New Hampshire, who was then the owner of the premises insured, which were situated in Berwick, in this county. Eoberts died in 1876. He lefta will which was duly probated in New Hampshire, and since the commencement of this suit has been admitted to probate in this county also. In that will he made his wife, Euth Eoberts, sole executrix, and by the first and second items gave large legacies to his children, and grandchildren; by the third, like legacies to his wife, and also " the use' and income of all my real and personal estate, after the before mentioned legacies and my just debts are paid for, and during the term of her natural life, with all the power to alter, repair, let and relet said real estate which I myself have. I also give her full power to sell and convey by deed or otherwise, any or all of my said real estate, by the approval in writing of a majority of my said children living at the time of such sale. I do also give her full liberty and power to give, bequeath and devise any or all of my said estate during her lifetime or by will at her death, to such of my children or grandchildren as she may choose.”
By the fourth item, he ordered all the foregoing legacies to be paid within a certain time after his decease, and "Lastly; — As to all the rest, residue and remainder of my estate, real, persona], and mixed, wherever found and however situated,” it was "given, bequeathed and devised” to his "beloved wife, Euth Eoberts, her heirs and assigns forever.”
April 20, 1877, the same Euth Eoberts conveyed all her right, title and interest in the premises to Mark A. Libby, describing herself in the deed as heir at law, and widow of H. E. Eoberts, deceased, and on the same day by a written assignment, subscribed Euth Eoberts, "heir at law of H. E. Eoberts, deceased,” she
March 27, 1878, Mark A. Libby, receiving- three hundred dollars in cash, gave a bond fora deed of the premises to Charles F. Higgins, conditioned upon the payment of eighteen hundred dollars by Higgins on the fifteenth of April, jjrox. And on the first of April, by Higgins’ consent, and in his presence, Libby conveyed to the plaintiff, Higgins surrendering his- bond and paying him two hundred dollars, and the plaintiff paying the balance, sixteen hundred dollars, and giving Higgins his own bond for a deed of the same, conditioned on the payment of sixteen hundred dollars upon long time. On the same day Libby assigned the policy to the plaintiff, and on the tenth day of April the directors of the defendant company endorsed thereon their consent to the assignment; but on the twenty-ninth of April, 1878, instructed their secretary to request the plaintiff to return the policy as they had assented to the assignment under the mistaken supposition that he was the owner of the property. The secretary did so. To which the plaintiff replied that he had a warranty deed of it, and there the matter rested. The buildings were burned in March, 1879, and due proof of the loss was made. The defendants deny their liability because they say they are a mutual insurance company, capable of contracting only in the manner prescribed by their charter — that no action is maintainable upon this policy by the plaintiff, unless the interest of Hiram E. Eoberts in it has been regularly transferred to him, and the consent of the directors obtained before the policy became void — that there has been no such transfer, because the policy became void by alienation of the property upon the death of Hiram E. Eoberts, without assignment of the policy and consent of the directors obtained within thirty days, according to the express provisions of section six of the charter, and that no consent of the directors could afterwards revive it.
In the ingenious argument of defendants’ counsel much stress was laid upon the proposition that, unless Euth Eoberts took a good title to the property under the will of the party originally
These have since been supplied, and there was no conveyance by the heirs in the interim so that the deficiency in the probate records then “’existing, creates no embarrassment in the record title, and the will .when approved made the title of the devisee and her assigns good from the death of the testator.
Was this succession of the devisee to the party originally insured an alienation which ipso facto, avoided the policy in thirty days after the death of the testator in the absence of any assent of the directors obtained within that time ?
It was well held in Burbank v. Rockingham Ins. Co. 24 N. H. 550, that a descent to the heirs of an intestate insured, is not within the clause against‘alienation, the same being an involuntary transfer by operation of law. But the court there, arguendo, made a distinction between heirs and devisees. Yet the same reasons which in the judgment of the courts suffice to relieve the heirs from a forfeiture under the alienation clause, will generally
The death of the testator, through which alone the devisee acquires any title would seem to be, properly speaking, no more an alienation in his case than the death of an intestate. In both the title devolves by operation of law upon those who become, by means of his death his representatives in the title; and the general doctrine of the law seems to be as stated in 2 Am. Leading Cases, 841, thus ; "When a building which has been insured by the owner, is destroyed by fire after his death, the right of action for the loss vests in his personal representative in trust, for the heirs, devisees, creditors and other persons claiming under him.” Wyman v. Prosser,
But we deem it unnecessary to decide upon this point, for we think that an alienation, though not followed by an assignment of the policy and assent of the directors procured -within thirty days, will not preclude the directors from subsequently assenting so as to make a valid and binding contract with an assignee who is the owner of the premises. In other -words, that the true significance and effect of the provision in section six of the act of incorporation, touching the effect of an alienation by the insured, is to make the policy not void, but voidable, at the pleasure of the insurance company, and that an assent of the directors to' the transfer of the policy obtained in good faith at any time, during the term named in the policy, will make it good in the hands of the assignee, owning the property, for the remainder of the term. Instances in which the words, void and voidable are used indifferently, both by law writers and law makers, are sufficiently numerous to make this construction feasible whenever the context seems to require it. It is obviously so here. »
There is nothing to indicate that they acted in ignorance of any fact which it was important for them to know. Whether Euth Eoberts was heir at law of Hiram E. Eoberts was of no consequence so long as she was his legal representative and the owner of the premises. She had power to convey the premises and to assign the policy, and the erroneous description of herself as heir at law, does not affect the validity of her act. It was not the design of the provision in § 6, to restrict the power of the insurance company to make insurance in any manner known to the law. Its true constructiom is simply to give them the privilege, if they see fit to exercise it, to regard and treat the policy as void upon an alienation of the property whenever they do not-choose to contract with the purchaser for the remainder of the term. The policy is voidable at their election; but when that election has been made — when they have sub
The defendants were paid for. insuring a given sum to Hiram E. Eoberts for a fixed term, and their contract was to pay to his assigns. By consenting to the assignment made by his executrix and devisee to her grantee, Libby, they agreed that Libby might be substituted, and that the policy should represent to him just what it had to the party originally insured. The same thing was done when Libby conveyed the property and assigned the policy to the plaintiff, and we find nothing in the case reported, to invalidate the transaction in any of its parts. The plaintiff became a member of the company; (Stimpson v. Monmouth M. F. Ins. Co. 47 Maine, 379,) and liable for all assessments upon the premium note which defendants held, if he did not give a new one. Cumings v. Hildreth,
The contract once fairly entered into, the defendants could not withdraw from it without the consent of the insured, as they appear to have wished to do, upon the mistaken idea that the plaintiff was not the owner of the premises.
His title was good and the bond to Higgins did not affect it or the contract of insurance. Brown v. Williams, 28 Maine, 254; Newhall v. Union M. F. Ins. Co. 52 Maine, 182.
In accordance with the stipulations upon which the case was reported,
Action to stand for trial.