Home Ins. Co., New York v. Latimer
| Decision Date | 13 February 1928 |
| Docket Number | Civil 2668 |
| Parties | THE HOME INSURANCE COMPANY, NEW YORK, a Corporation, Appellant, v. JOHN R. LATIMAR, as Administrator of the Estate of JANE G. DELLINGER, Deceased, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgement of the Superior Court of the County of Gila. C. C. Faires, Judge. Affirmed.
Mr Maurice Blumenthal, for Appellant.
Mr Charles L. Rawlins, Mr. Cullen A. Little and Mr. George H Rawlins, for Appellee.
November 13th, 1924, Jane G. Dellinger died intestate, seized with the title to a house and lot situate in Globe, Arizona, and she left heirs at law. The house, which was insured by her for three years, from February 28th, 1924, in the Home Insurance Company, New York, for $1,200 loss, if any, payable to Jane G. Dellinger, owner, was destroyed by fire on May 16th, 1926. On June 22d, 1925, the plaintiff, Latimer, qualified as administrator and took possession of all the property of the estate, including the insured building, and continued in possession of the same until it was destroyed. Proof of loss having been made, defendant refused payment, and the administrator brought this suit.
It is provided in one clause of the policy that it shall be void "if any change other than the death of the insured, take place in the interest, title, or possession of the subject of the insurance . . . whether by legal process or judgement or by voluntary act of the insured, or otherwise." It is also provided in the policy that the word "insured," wherever it occurs, shall include the legal representative.
On the face of the pleadings (the answer and reply) it appears that before the fire the heirs of the insured "assigned all of their right, title, and interest in and to the property belonging to the estate of the decedent," and this raises the only question in the case on the merits.
The trial was before the court, and resulted in a judgement for the total loss, fifteen per cent statutory damages, and attorney fees of $500. The defendant has appealed.
On the merits, the legal proposition is, Did the assignment by the heirs of their right, title, and interest in the property of the estate before the destruction of the insured property render the policy void as to such interest? The law on this proposition -- and to it we shall go directly, disregarding immaterial contentions of a procedural nature -- may be stated to be as follows: The policy of insurance issued to Dellinger was a contract of indemnity against fire loss by her, and, in case of her death, against fire loss by the creditors of her estate and also her heirs, so long as their interest in the insured property remained unchanged by acts of theirs.
Upon the death of the insured, the ownership of the property was changed by operation of law. It became vested in the heirs, subject to the payment of the debts of the estate, the expenses of administration, and the allowance to the family. Par. 904, Civ. Code 1913. It is made the duty of the administrator to take possession of the property of the estate, both real and personal, pending the administration (par. 967, Civ. Code), and to care for and preserve the same (par. 1069, id.).
This is not a contest between the heirs and creditors as to how the proceeds of the policy should be disposed of or to whom; it is between the insurance company and the personal representative, who, under the terms of the policy, succeeded to the procedural rights of the insured. The administrator is the only person who could bring the suit. The creditors could not sue; neither could the heirs, the contract not having been with them. Although they are the real parties in interest, their interests must be protected by the administrator if by anyone. The right of the administrator to sue is preserved by paragraphs 400 and 401, Civil Code, as trustee of an express trust, the cestuis que trustent being the heirs and the creditors. The contract of insurance did not attach to the realty and did not pass as an incident to a conveyance or transfer of the title to the land (Wyman v. Wyman, 26 N.Y. 253), but its validity under the terms of the policy depends upon the title of the insured property not being changed to another except through the death of the...
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