87 Tenn. 308 | Tenn. | 1889
The deceased husband of appellant took out a policy of fire insurance upon his dwelling, loss payable to the assured, his executors, or administrators. Before the expiration of the policy by time, hut after the death of the assured, the house was accidentally burned. The insurance com-
Appellant, is the widow of the assured, and claims a life estate _ in the fund upon the following state of facts :
Before her marriage to the assured a marriage contract was entered into and duly executed in the county of their residence, by which, among other things not material to be here mentioned, it was agreed: “ That all the property and estate, both real and personal, now owned or hereafter to be acquired by said John ~W. Quarles, shall continue to be his, and shall remain wholly unaffected by said contemplated marriage with said Mrs. Nancy M. Kirk, in favor of whom no marital or other rights in his said property and estate shall attach or inoro by virtue of said contemplated marriage relation, further or otherwise than is expressed and provided in this instrument, and he hereby reserves the right and privilege of making such suitable provision for her out of his estate as he may at any time desire, either by deed 'of gift, last will and testament, or otherwise. If he die without making any such provision for her, then she shall, out of his real estate, if she survives him, have a
After the marriage the dwelling house above described, which was then and after the residence of Mr. Quarles and wife, was insured, under a contract, as before stated, that the loss should be paid to the assured, the husband of appellant, his executors, or administrator’s.
Mr. Quarles died intestate, and without having made any provision for his Avidow other than that contained in the marriage contract. The widow continued to occupy the dwelling as her' residence until it was destroyed by fire. The portion of the farm of the decedent which was to be assigned to her under the marriage agreement had not at the time of the fire, been laid off by metes and
Under this state of facts, has appellant any equitable or legal interest in the proceeds of this fire policy. That the precise boundaries of the one hundred and forty acres to be laid off to her had not been ascertained by»survey at the time of the fire can cut no figure, because it was to be laid off in all events so as to include the mansion house and outhouses. It seems equally clear that she can-mot hold the estate of her husband responsible for the value of the house, because at his death her contingent right to the house for her' life ripened and became a vested interest for her life, and at the moment her husband died intestate, and without having made any other provision for her, the house was standing, and her right to the use and possession at once accrued. Her interest became at once an insurable interest, and the destruction of the house by any means after her husband’s death was not ■ an injury for which his estate or his heirs would be responsible.
Whatever right she had to any interest in this fund must arise from the contract of insurance. The person assured against loss in the policy paid
The contract is not therefore one which attaches to or follows the property, being one for the personal indemnity of the assured, and when the insurer does not assent to the assignment of the' policy to the grantee of the property, neither the assured, nor his assignees of the property, can recover upon the policy. Hobbs v. Insurance Company, 1 Sneed, 444.
.But this policy was not annulled by the change of title which occurred by the death of the assured. It expressly provides that a change of title shall defeat the policy, except where it occurs “by succession by reason of the death, of the assured.” The legal effect, of this exception is to continue and extend the policy, notwithstanding the change of title by death of the assured. In whose favor is this continuance? It has been ably argued that the effect of this continuance is in favor of those who,
There is much plausibility in the argument that inasmuch as the policy is continued, notwithstanding a change of title has occurred, that in case the risk is upon real estate, that the extension is by intendment, of the contract to operate as ah indemnity to those who by “succession” have become the owner of the property. In such a case the administrator or distributee would not have any interest to be insured, while the heir or devisee, upon whom the title has been cast, would be the legal and equitable owner and the person to suffer by loss.
The root principle of insurance being that the
This rule applies as well to vendors and lienors of every class as to mortgagees who may have had their security impaired by a loss by fire. This Court, in a well considered case, held that the holder of a mechanic’s lien upon a building had no equitable lien on a fire policy effected by the owner and assigned to a mortgagee. Galyon v. Ketchen, 1 Pickle, 55.
An equity will attach whore the vendee or mortgagor was, by covenant or otherwise, bound to insure the property for the better security of the vendor or creditor. In such case the latter would have, to the extent of their interest in the property destroyed, an equitable lien upon the money due on a policy taken out by the mortgagor or vendee, or other debtor who had given a security upon the insured property, and this would be so even
The agreed state of facts upon which this case is submitted fails to show any covenant, contract, agreement, or understanding, that Mr. Quarles should insure this property for the benefit of appellant. The interest of appellant after the deatli of her husband was an insurable one; so was the remainder interest of the heirs. The decedent having left no debts, and the distributees being the same persons who take the real estate as heirs, no controversy can arise between the administrator and the remainder-men. That the insurance company had the option to rebuild is urged as a reason why the insurer’s election to pay instead of rebuild ought not to operate to tlie disadvantage of complainant. This option is one common to all contracts of fire insurance, and the agreement, if good in this case, would operate to overturn the well-settled rule that no equity attaches to the proceeds of a fire policy in favor of third persons
The decree of the Chancellor will be affirmed.