Jacobs v. Queen Ins. Co.

• Decision Date: 10 January 1905
• Citation: 123 Wis. 608,101 N.W. 1090
• Parties: JACOBS ET AL. v. QUEEN INS. CO. ET AL.
• Court: Wisconsin Supreme Court

123 Wis. 608

101 N.W. 1090

JACOBS ET AL.

v.QUEEN INS. CO. ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Consolidated actions by Frank W. Jacobs and others against the Queen Insurance Company and others. From a judgment in favor of plaintiffs against each defendant, the defendants appeal, and plaintiffs appeal from a judgment in their favor against the New Hampshire Fire Insurance Company. Judgments affirmed on both appeals.

Action to recover on five insurance policies. In March, 1902, Frank W. Jacobs and Carrie J. Kitchell by will of William Jacobs, deceased, became possessed of the title in fee of certain real estate in the city of Milwaukee including the building thereon. Joseph W. Hobbins was the executor of such will. May 1, 1902, he procured of the defendant insurance companies policies of insurance on such building against loss by fire. Each of such policies ran to Joseph W. Hobbins, executor of the estate of William Jacobs, deceased, and was in the statutory form of this state. September 26, 1902, Carrie J. Kitchell, by an instrument duly witnessed and acknowledged so as to entitle the same to be recorded conveyed the undivided one-half of such property to Frank W. Jacobs and said Joseph W. Hobbins, as trustees. This language was used in such instrument as to the title conveyed and the nature of the trust:

“Grant, bargain and sell to the parties of the second part as joint tenants, and not as tenants in common, and to their heirs, assigns and successors in trust, for the term of two years from this date,” etc.; “to have and to hold the same as such joint tenants with all the privileges and appurtenances to the same building for the space of two years from this date, but in trust, nevertheless, for the following purpose only, that is to say: such trustees shall take possession of and hold, use and manage and control all my real estate herein described and any into which the same may be converted, and shall rent, lease and let the same, pay for all repairs, assessments and taxes and insurance, and all lawful charges, and pay over to me all net rents and profits therefrom monthly. They may also use any money and securities or means of mine in their hands, for the purpose of improving my real property, * * * when so authorized in writing by both of us. Upon the joint authority and request in writing of the party of the first part and Frank W. Jacobs duly signed by both * * * to sell and convey as well as to mortgage * * * said real estate. At the expiration of the said term of two years, or at my death prior to that time, or the death of either trustee, said trustee, or the survivor shall release and reconvey to me, or to such person or persons as I may by last will and testament designate and appoint, all their right title and interest in such real estate, * * * and in any event the right, title and interest and claim of such trustees, shall, either upon the expiration of said term of two years, or my death, or the death of either of them, absolutely cease and determine.”

January 21, 1903, while the title to the property remained as indicated by such trust deed, the building thereon, insured as aforesaid, was wholly or partially destroyed by fire. Thereupon it was claimed that the interests of Frank W. Jacobs and Carrie J. Kitchell, whether that of the latter was held by herself or by the trustees under said trust deed, were covered by said policies. The total amount of the face of the insurance policies was $15,000. Such proceedings were duly taken as were necessary to fix the liability of said insurance companies under said policies, if they were liable in any event under the circumstances. There being a disagreement between the parties interested as to the amount of the loss by due proceedings it was determined by arbitration to be $7,834.32. Plaintiff in due time commenced an action against each company to recover on the policy issued by it, the aggregate loss claimed being $9,949.47. The five actions were subsequently consolidated into one under section 2609a, Rev. St. 1898. The defendants answered severally alleging, among other things, the following: The policy insured against loss by fire Joseph W. Hobbins, as executor. He was not, either as executor, or otherwise, at the time of the issuance of the policy or thereafter, up to and inclusive of the happening of the fire, the...