Harrison v. Pepper

• Decision Date: 25 May 1896
• Parties: HARRISON v. PEPPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 288

44 N.E. 222

HARRISON v. PEPPER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1896

COUNSEL

Harrison

Dunham and Timothy J. Donoghue, for appellant.

L.S Dabney and R.D. Weston-Smith, for appellee.

OPINION

MORTON J.

The defendant, as life tenant, had an insurable interest in the property; and although it is alleged in the bill that she renewed the insurance on the building in her own name "as an entirety of estate, without qualification, *** for the sum of twelve hundred dollars," and that that sum was paid to her as the full value of the dwelling house without any deduction by reason of the plaintiff's ownership in fee, it is not alleged that the sum so paid exceeded the value of the plaintiff's interest, or what the value of the plaintiff's interest was. If the amount received by the plaintiff did not exceed the value of her interest, then it is clear that the plaintiff has no right in equity to any portion of it. Reitenbach v. Johnson, 129 Mass. 316; Martineau v. Kitching, L.R. 7 Q.B. 436; Stilwell v. Staples, 19 N.Y. 401. But if we assume that the sum paid represents the total value of the dwelling house, and exceeds the value of the defendant's interest, and that the bill finally alleges this, still we do not think that the plaintiff is entitled to recover. A tenant for life is liable for any unauthorized act which tends to the injury of the inheritance; in other words, for voluntary waste. How far and under what circumstances he is liable for what is termed "permissive waste" is not altogether clear, and we need not consider. In re Cartwright (Avis v. Newman) 41 Ch.Div. 532; Leake, Land, 92; Pol. Torts, 285, 286; Tayl.Landl. & Ten. (7th Ed.) § 688; Kerr, Inj. 252. We have been referred to no case in which it has been decided that the neglect of the life tenant to insure is to be regarded as in the nature of voluntary or permissive waste, though it has been held that the failure to pay taxes is (Stetson v. Day, 51 Me. 434); but that, manifestly, stands upon different ground. It is plain that the plaintiff is not entitled to recover unless she has some claim upon the funds in the hands of the defendant.

In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainder-man. Each can insure his own interest, but, in the absence of any stipulation or agreement, neither has any claim upon the proceeds of the other's policy, any more than in the case of mortgagor and mortgagee, or lessor and lessee, or vendor and vendee. Burlingame v Goodspeed, 153 Mass. 24, 26 N.E. 232; Trust Co. v. Boardman, 149 Mass. 158, 21 N.E. 239; Insurance Co. v. Boyden, 9 Allen, 123; Warwicker v. Bretnall, 23 Ch.Div. 188; Leeds v. Cheetham, 1 Sim. 146; Rayner v. Preston, 18 Ch.Div. 1; Kearney v. Kearney, 17 N.J.Eq. 59, 71. The contract of insurance is a personal contract, and inures to the benefit of the party with whom it is made, and by whom the premiums are paid. It is a contract of indemnity against loss. The sum paid "is in no proper or just sense the proceeds of the property." Lerow v. Wilmarth, 9 Allen, 382, 385; Insurance Co. v. Boyden, Id. 123; Wilson v. Hill, 3 Metc. (Mass.) 66; King v. Insurance Co., 7 Cush. 1; Insurance Co. v. Lawrence, 10 Pet. 507, 512.

It is not averred, and does not appear, that the defendant intended to make a present of...