Pfister v. Gerwig

• Decision Date: 15 March 1890
• Citation: 23 N.E. 1041,122 Ind. 567
• Parties: Pfister et al. v. Gerwig et al.
• Court: Indiana Supreme Court

122 Ind. 567

23 N.E. 1041

Pfister et al.

v.Gerwig et al.

Supreme Court of Indiana.

March 15, 1890.

Appeal from circuit court, Vanderburgh county; Wm. F. Parrett, Judge.

Shackleford & Vance and Wm. P. Edson, for appellants. Iglehart & Taylor, for appellees.

Elliott, J.

This action is prosecuted by Aloysius Pfister, administrator of the estate of Joseph Gerwig, deceased, and by Rosina Gerwig, widow of the intestate against the German Mutual Insurance Company and eight children of the deceased. The complaint is founded on a policy of insurance issued to the intestate in his life-time, and conditioned that the loss shall be payable to the insured, his heirs, executors, or administrators. Both personal and real property are covered by the policy, and each species of property is separately insured. After the death of the insured, the property described in the policy was destroyed by fire. It is averred in the complaint that the administrator obtained an order to sell the property for the payment of the debts of the decedent, but before sale was made the property was burned.

One of the paragraphs of the answer sets forth a by-law of the company forbidding the transfer of the property, and providing that in case of a transfer the policy shall be void; and it is averred that a transfer was made by operation of law, inasmuch as the death of the assured transferred the property to his heirs. To this paragraph a demurrer was properly sustained, for the reason that a transfer to the heirs, or executors or administrators, by operation of law, upon the death of the insured, did not avoid the policy in this instance. The facts pleaded do not bring the case within the class of cases represented by Hine v. Woolworth, 93 N. Y. 75, for the reason that the inhibition in the policy and bylaws does not cover a transfer made by law upon the death of the assured to his heirs or personal representatives.

The seventh paragraph of the answer sets forth a by-law, and avers that it was violated by the assured by the execution of a mortgage. The by-law pleaded reads thus: “Transfers of policies are to be made only by the assent of the board of directors. Every transfer or incumbrance of the property, whether by mortgage, judgment lien, or otherwise, after the same has been insured in the company, cancels the policy, and the same is null and void, except such transfer or incumbrance is ratified by the board of directors, and shall be noted on the policy.” The answer is addressed to so much of the complaint as seeks a recovery for the value of the real estate, and offers to confess judgment for the value of the personal property. Issue was formed by a reply. The mortgage was introduced in evidence, and the court instructed the jury to find for the defendant the insurance company. The defendant subsequently paid into court the amount of the insurance upon the personal property, and the penalty provided by statute. The plaintiffs accepted the sum paid into court, and, as the record recites, “waive the error arising from the failure of the jury to find in their verdict against the defendant the German Mutual Fire Insurance Company of Indiana for the damages for such loss upon the counters and shelving described in the policy of insurance set up in the complaint, but waive nothing further.” It thus appears that the plaintiff recovered and received the full value of the personal property, so that the only question is as to the right to recover the value of the real estate destroyed by fire. There is some conflict in the authorities as to whether an administrator can sue on a policy of insurance on real estate executed to the decedent in cases where the property is burned after his death. Mr. Crosw II says: “The money paid over under a policy of insurance on buildings is personal property, if paid before the death of the decedent; but if the buildings are destroyed after the death of the decedent the money is real estate.” Crosw. Ex'rs, § 357. In Wyman v. Wyman, 26 N. Y. 253, it was held that the heirs may sue; and other cases lay down a similar doctrine. Burbank...