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and the one therefore which must prevail. By it all parts are harmonized and reduced to a consistent whole, where otherwise there is incongruity, if not conflict. The argument which seeks to make the clause speak differently, deriving out of it new and independent grounds of liability, loses sight of the fact, already alluded to, that it is expressly made subject to the general conditions of the policy, of the application and effect of which there can be no doubt. It will hardly be contended, for instance, that the provision with regard to intoxicants and narcotics does not obtain, so that death by freezing, the result of drinking, could be made the basis of a claim; or that in case of drowning the question whether it was suicide or not could be disregarded. But by the same logic which was invoked above, if these conditions are operative, why not the others also ? And, if so, all must be fulfilled as much as one.
It is no answer to say that, if the policy is ambiguous, it is to be construed most strongly against the company and in favor of the insured. Rightly considered, there is no ambiguity, and no occasion therefor to resort to the rule. Undoubtedly the plaintiff is entitled to a liberal construction of it, but with the utmost liberality the construction contended for cannot be maintained.
Neither can it be said that this is a special provision, and so controlling, with respect to which other and more general provisions must give way. The policy is to be construed as a whole, and effect given to every part of it consistent with the general scheme. Hubbard v. Travelers’ Ins. Co. (C. C.) 98 Fed. 932. Essentially it is a contract of accident insurance, and such it must remain to the end, unless this cannot be done without violence to its express terms, It certainly is not to be distorted, nor its provision strained, as would have to be the case if, according to the present plea, it is to be taken as an accident policy in one part and a life policy in another.
It is said, however, that an accident policy after all is a life policy, differing only from the ordinary form in that the risks are special and limited (Zimmer v. Accident Ins. Co., 207 Pa. 472, 56 Atl. 1003), and that it may therefore be legitimately extended, by special provisions, to death from any cause. But while this may in a sense be true, it has no particular application here. It might go to relieve a policy from the charge of incongruity where such a condition appears, but as an aid in the construction of the one in hand it is of little
By express mention, even as to septicæmia and the rest, not only, death but disability is covered (anæsthetics only excepted), and its character as an accident policy is thus manifestly intended to be maintained.
The question, after all has been said, is as to the purpose and meaning of the provision, which is to be determined by reference, as well to the general character of the policy, as to the terms in which the particular provision is expressed, and the connection in which it is found. Having regard to these, the correct construction, in my judgment, is the one which has been given above, according to which the plaintiff, on the face of her statement, has no case.
The demurrer is sustained, and judgment directed to be entered in favor of the defendants, with costs.
NEWCOMB et al. v. BURBANK et al.
(Circuit Court, s. D. New York. June 18, 1906.)
1. EXECUTORS AND ADMINISTRATORS—LIABILITY TO THIRD PERSONS–PROPERTY
RECEIVED FROM ESTATE.
Whatever property is received by an executor after the death of the testator in virtue of his representative capacity he holds as assets of the estate, and is liable therefor in such capacity to the true owner.
[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and
Administrators, $8 279-300.]
For a conversion by executors of property received by them from the
Dailey & Williams (Abram H. Dailey and Melville J. France, of counsel), for plaintiffs.
Hawkins & Delafield and Francis M. Jencks (Eugene D. Hawkins, of counsel), for defendants.
HAZEL, District Judge. This action is claimed by plaintiffs to be at law, and no objection is made to that form of proceeding. The complaint alleges that the defendants, individually and as executors, have wrongfully converted certain bonds and accumulations to the possession of which plaintiffs are entitled, and wrongfully claim to hold such securities as part of the estate of which they are executors. The separate answers interposed by the defendants, after denying the material allegations of the complaint, set forth that as executors they rejected the asserted claim of the plaintiffs, and, no consent having been filed with the surrogate of New York county, wherein the decedent resided, for hearing of said claim upon the judicial settlement of their accounts, this action is barred by the provisions of section 1822 of the Code of Civil Procedure. Plaintiffs have demurred to the latter part of the answers, claiming that they contain new matter, and are insufficient in law. The theory advanced by plaintiffs at the hearing was that the securities alleged to have been converted by the defendants did not come into their possession as representatives of the estate of Ambrose B. Burbank, because at the time of his demise he was not the owner thereof, and that under an arrangement entered into with plaintiffs' testatrix his custodianship ceased upon his death, and hence it was the duty of his executors, the defendants, on demand, to surrender such property to the plaintiffs. Defendants contend that the property specifically mentioned in the complaint is not distinguishable from other property of the decedent, and therefore it became an asset of the estate, and plaintiffs' claim must be asserted as that of a general creditor. The general rule is found in De Valengin's Administrators v. Duffy, 14 Pet. 282, 10 L. Ed. 457, where it is stated:
“Whatever property or money is lawfully recovered or received by the executor or administrator after the death of the testator or intestate, in virtue of his representative character he holds as assets of the estate, and he is liable therefor in such representative character to the party who has good title thereto."
See, also, Wall v. Kellogg's Executors, 16 N. Y. 385; Dunham v. Fitch, 48 App. Div. 321, 62 N. Y. Supp. 905; Matter of Van Slooten v. Dodge, 145 N. Y. 332, 39 N. E. 950.
It may appear on trial that the securities mentioned in the complaint totally lack identity, and in such case may come within the description of assets. Schouler on Executors (3d Ed.) § 205. If, as claimed, the decedent held the bonds as bailee, such possession passed to the executors, who similarly held them. In Moran v. Morrill, 78 App. Div. Rep. 440, 80 N. Y. Supp. 120, affirmed in 177 N. Y. 563, 69 N. E. 1127, a somewhat similar case, certain paintings of which the plaintiff claimed to be the owner were left in the possession of the testator. An action was brought against the executor in his representative capacity to recover their possession or their value. The possession of the paintings, Justice Laughlin says, was lawfully derived from the testator, and, to quote from the opinion:
"It could become unlawful only upon a demand and refusal to deliver the property to the plaintiff. The right to possession was vested in the plaintiff, and if she had made a demand upon the testator her cause of action would have been complete against him, and would exist against his representative as such. This, I think, brings the case within the rule that executors are liable in their representative capacity to the true owner for property received by them in such capacity."
In this case the plaintiffs allege that possession is wrongfully withheld, but the demand for judgment is confined to the value of the bonds. In the case cited the court was of the opinion that the refusal of the executor to deliver the property might have been treated by the plaintiff as a conversion, but no demand in tort was alleged. The authorities are not uniform as to whether the torts of executors or administrators are to be treated as an individual liability or in their representative capacity, but an election may be made whether the action shall proceed against the executors or in their representative capacity. Conger v. Atwood, 28 Ohio St. 134, 22 Am. Rep. 462 ; 11 Amer. & Eng. Ency. of Law (2d Ed.) p. 943. If upon the trial the plaintiffs elect to proceed against the defendants in their representative capacity, and the defendants are able to show that the property described in the complaint cannot be separated from other property of a like character belonging to the decedent, then, notwithstanding the alleged conversion, it may be that the claim should have been asserted, under the provisions of section 1815 of the Code of Civil Procedure; but, if this is not shown, the asserted wrongful acts would seem to be of such character as to involve an individual liability.
In re DIMM & CO.
1. BANKRUPTCY-COMPENSATION OF TRUSTEE-SERVICES RENDERED IN SELLING
A trustee in bankruptcy is entitled to an allowance in his accounts for personal services rendered by him in attending and assisting in continuous auction sales, by means of which the bankrupt's stock of goods was disposed of to the substantial advantage of the estate; and for his necessary personal expenses while so doing. He may also properly be allowed in such account for unavoidable losses of small sums to the
estate through inability to collect from purchasers. 2. SAME-COUNSEL FEES.
While the fact that an attorney had acted for a bankrupt may affect the propriety of his employment to act for the trustee, it does not deprive him of the right to compensation for services rendered after he has been So employed. In Bankruptcy. On certificate from referee sur exceptions to account of trustee.
W. L. Hoopes and Willis E. Myers, for exceptions.
ARCHBALD, District Judge. Of the five exceptions originally filed to the account of the trustee, the first has been withdrawn. This covered the amount paid to Charles Stimmel for services as clerk at the daily auctions of the bankrupts' goods which were held 18 days, at $3 a day, $54. By consent of the trustee, also, the third and fourth exceptions are sustained; the one being for $5 for attending upon a rule to show cause and making answer thereto, and the other being for $20, the alleged expense of procuring a bond, both of which accordingly go out. But two exceptions therefore remain, the first of which is directed to a claim of $90, made by the trustee for expenditures, personal and otherwise, incurred in attending and conducting the sale of the bankrupts' stock, and for personal services rendered in connection therewith, and also for a loss on the sales as returned, due to the inability to collect from certain purchasers. The bankrupts were country merchants, and it was deemed advisable to dispose of the merchandise which they carried, not in a single lumping sale, but piece by piece, in continuous daily auctions. No one questions the propriety or advantage of this course, and by it some $2,242.29 were realized, which is said to be double what would have been secured in any other way. To accomplish this the trustee had to be on hand every day, through a period of nearly three weeks, cleaning and arranging the goods, and looking after sales, during which time he incurred personal expenses by reason of being away from home to the amount of $9. There were other minor expenditures directly connected with the auction, amounting to $5.40 more. A claim of $17.39 is made for losses on reported sales, and $54 is asked for the daily attendance and services of the trustee. The aggregate is $85.79; the balance of the $90 for which credit is asked being made up of affidavit fees, etc., which the trustee is only able to estimate, and of which he kept no direct account.
The services of the trustee were well worth the amount asked, and should be allowed. Some of them were of almost a menial character, made necessary by the condition in which the goods were found; and there can be no question as to the advantage of the course pursued in disposing of them, to which the attendance of the trustee was necessary and materially contributed. The bankruptcy act expressly authorizes the business of bankrupts to be continued for a limited period by the trustee when deemed advisable, and the allowance of additional compensation for such services to that which is otherwise provided. Section 2 (5). And while the daily auction sales in the present instance may not exactly have been a continuance of the business of the store, they were so in effect, fulfilling the spirit, if not the letter, of the law.
The losses on sales are also a legitimate subject of credit. The trustee might well have deducted them from his totals, and only returned the net amount; and had he done this, it probably would never have been questioned. In fact, the only point made is that he did not take this course. It may be that, with more circumspection, the purchasers who got away without paying, or claimed that they did not get the goods struck off to them, would not have been able to successfully make these pleas. But treating the losses as unavoidable, as seems to be conceded, the trustee is entitled to a credit therefor.
The other items which make up the $90 are not seriously questioned. Some three or four dollars are not in strictness accounted for. But it may well be that they have gone in the way suggested by the trustee, and they are not of sufficient moment to stop over.
The only other objection is to the item of $75, counsel fees. It is contended that Mr. Neely was the bankrupts' attorney, and therefore not entitled to them. But this, if true—and it is disputed—however it might affect the propriety of appointing him to act for the trustee, would not deprive him of compensation after his services were rendered. Considerable, however, has already gone in one way and another to counsel, in view of which the present allowance will be confined to $50. This, so far as appears, will fairly cover what has been done.
With this modification, the exceptions are overruled, and the account of the referee is confirmed.
DAVIS v. CLEVELAND, C., C. & ST. L. R. CO.
(Circuit Court, N. D. Iowa, W. D. May 22, 1906.)
No. 417, Law.
1. REMOVAL OF CAUSES—EFFECT OF REMOVAL-WAIVER OF OBJECTIONS TO JURIS
The removal of a cause does not preclude the defendant from challenging the jurisdiction of either the state or federal court over his person, or from claiming exemption from being sued in a state other than that of his residence.
[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 238.]