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Pittsburgh Legal Journal.

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Supreme Court, Penn'a.

of the assets for distribution $300 under the ex

emption law, and one-third of the balance under ESTABLISHED 1853.

the intestate laws; they claim the whole, allegE. Y. BRECK, : : : : Editor.

ing she waived her right to have the exemption

and that she made an ante-nuptial contract with V.S., Vol. XIII.

No. 10. | Venus, that the survivor should take no part of 0. S., Vol. XXX.

- - - -- the other's estate. The auditor and court ruled PITTSBURGH, PA., OCTOBER 18, 1882.

that the parties claim by devolution and are therefore competent witnesses under the Act April 15, 1869.

It is true that the widow claims one-third by

devolution, and so do the children their distribHUNT'S APPEAL.

utive shares; but that this is not the whole case

is manifest from the objection made by the chilWhere the widow of a decedent claims her $300 exemp

dren to the competency of the widow as witness, tion in money, when there is no money belonging to the estate; declines to retain any of the personalty and

namely, she was seeking to charge the estate refuses an appraisement of it. Held (affirming the and occupied the position of a creditor seeking court below), she cannot wait until the personal prop

to set aside a contract of the intestate made in erty is sold and turned into cash and then apply for her

his lifetime. The basis of the objection was the $300 out of the proceeds. Held (aflirming the court below). A widow's right to

real or pretended contract. That aside, nothing claim $300 exemption is not ousted by her subsequent was in the way of the widow taking the third marriage.

part by the operation of law. That established, Held (affirming the court below). An administrator is

the children took that third by virtue of the a competent witness to prove the widow's notice of her

contract. It is admitted that if she were a credexemption claim, where his only interest in the estate is compensation for services rendered.

| itor of the estate, claiming under a contract, The widow of the decedent claimed her $300, and also that she could not testify in her own behalf nor her distributive share of the personalty before the aud could they against her. By the settled construcitor, which claim was resisted by the heirs of the deced

tion of the proviso to the first section of the Act ent, upon the ground that the widow and decedent had entered into a parol ante-nuptial contract by which she

of 1869, the act does not apply to any civil prorelinquished her right to her share in his property in ceeding where such contract is sought to be the event of his death. The auditor admitted the evidence of the widow and the children of the deceased,

is dead the issue arising thereon between the as to the existence of the contract. Held (reversing the

survivor and the representatives of the deceased court below), that such evidence was incompetent. The basis of the objection to the widow's claim was the is excepted out of the operation of the act. Here

real or pretended contract. The Act of 1869 does not it is not the widow who claims a contract-she apply to any civil proceeding where a contract like this | denies it—but the children allege one which is sought to be enforced, and hence parties in interest

defeats her and enures to their benefit. Their cannot be witnesses. The auditor rejected evidence offered to prove certain

right under that contract passed to them from declarations of the decedent denying the existence of the decedent by law, and he is the assignor the alleged contract, on the ground that they were within the meaning of the statute. No disguise manifestly in his own interest if he survived, and no

can conceal the real issue, which involves the against his interest in any possible event. Held (reversing the court below), that these declarations were

| simple inquiry and no other, whether Venus offered against those who actually claimed under the and Euphemia Webb made an ante-nuptial concontract, and that clearly one of the alleged parties had tract that the survivor should take no part of the right to prove the other's admission that they had

the estate of the deceased. Any action or proinade no such contract or agreement.

ceeding for the determination of that issue, is An oral ante-nuptial agreement should not be found, save upon clear and convincing proof. The burden is not within the act allowing parties in interest upon those who aver it, and they must do more than to be witnesses. show a slight preponderance of testimony-they must At different times and to a number of persons adduce that which will be satisfactory when considered

| Venus declared that he had no marriage conwith the counter-testimony,or the proof will be deemed insufficient.

tract or bargain with his wife. To one he re

marked, after denying that he had such agreeAppeal from the Orphans' Court of York

ment, that he had children by his former wife, county.

and that if he dropped off his wife would come Opinion by TRUNKEY, J. Filed October 2, in for what the law allowed her, also that if she 1882.

died first he would take what the law allowed This controversy is between the widow of out of her estate. All these declarations were Henry Venus and his children. She claims out | rejected for the reason that "they were mani

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festly in his own interest, if he survived and not | POTTSVILLE MUTUAL FIRE INSURANCE against his interest in any possible event." The

COMPANY v. FROMM. very point in dispute was the making of the alleged contract averred by one party and de | Where the agent of an insurance company examines nied by the other. Had the point arisen in the and inspects a building upon which the owner desires

to effect a policy of insurance, and afterwards fills up lifetime of Venus, his wife could have proven

an application, which he reads to the owner, and which his admissions that there was no such contract, is signed by him, such agent is to be regarded with rewhether such admissions at the time they were spect to such application as the agent of the owner, made were self-disserving or self-serving. They and not of the company, and hence the company will

not be estopped from setting up the falsehood of statewere offered against those who actually claimed

ments in the application as to the condition and use of under the contract, no matter what was the the premises, as a defense to an action on a policy of form of their claim, and whose right to the insurance issued by it in pursuance of such application. property or money in dispute hung upon the es Eilenberger v. Protective Mutual Fire Ins. (0., 8 Norris, tablishment of it. Clearly, one of the alleged

464, distinguished.

In an application for a policy of insurance on a certain parties had the right to prove the other's admis

building, the same was described as a dwelling house sions that they had made no such contract or

occupied by the applicant. It was as a matter of fact agreement.

an unfinished building which never was occupied by The testimony consists entirely of declarations the applicant or any one else. By the terms of the

policy issued in pursuance of such application, the apand acts of the parties after their marriage, and I

plication was made part of said policy, and all statewhile they felt the weight of the displeasure of

Inents contained therein were warranted to be true. his children because of the marriage. But once A loss having occurred under the policy, and suit havdid they admit the contract in presence of each

ing been brought thereon.

Held, that the plaintiff had been guilty of a breach of other; then evidently to be communicated to

warranty which precluded his right of recovery. his children to effect their reconcilation ; they | Cumberland Valley Insurance Co. 1. Douglas, 8 Smith, did not become reconciled. Afterwards, repeat- 419, distinguished. edly, and to within a few months of his death,

Error to the Court of Common Pleas of Schuylin conversation with his neighbors he explicitly

e exprey | kill county.

i denied that he had made any contract of the

Covenant by Samuel Fromm against the Pottskind. Had the auditor not been constrained to ville Mutual Fire Insurance Company upon a reject a portion of the testimony, doubtless, he

policy of insurance issued by the company dewould not have been “of the opinion that the

fendant on certain premises belonging to the weight of the evidence is in favor of the alleged

plaintiff. ante-nuptial contract."

On the trial, before WALKER, J., the followAn oral ante-nuptial agreement should not be

being facts appeared: The plaintifi', being the found, save upon clear and convincing proof. owner of a certain building in South Manheim The burden is upon those who aver it, and they low

| township, made application to the company demust do more than show a slight preponderance

fendant, through its local agent, one Klock, for of testimony-they milist adduce that which will

a policy of insurance on the same. On Sepbe satisfactory when considered with the coun

tember 6, 1872, he signed a formal application ter-testimony, or the proof will be deemed insuf

for said policy, which had been prepared by ficient. Rejecting the widow's testimony with

Klock. Said application described the property the other that is incompetent, we think the

as follows: weight of the competent evidence is against

“Two-story log dwelling house, chunked and smeared the alleged contract, and certainly not suflicient

in cracks, plastered inside, 26 by 22, situate in South to warrant its finding.

| Manheim township, Schuylkill county, Pennsylvania." We are not convinced that there is error in Among the questions and answers contained the findings of fact, or applications of the law in said application were the following: relative to the widow's claim for $300, under the "Q.-How many chimneys, stoves and fireplaces? Act of April 14, 1871, and its supplements.

A.-One chimney, one fireplace.

Q.-How are stoves and pipes secured ? Decree reversed, and it is now ordered and

A.-Well. decreed that distribution be made as stated in

Q:-Are ashes secured in safe places ? the first alternative distributionreported by A.- Well, the auditor. Costs of appeal to be paid by the Q.--Who owns the building? appellees. Record remitted for enforcement of

A.- Applicant.

Q.-Who occupies the building, and for what purposes this dcerce.

are they occupied? How many tenants? For appellant, Messrs. George W. McElroy A.-Applicant." and Wm. Hay.

Attached to and as a part of the application Contra, Messrs. Blackford & Stewart. | were, inter alia, the following stipulations :

"But if any untrue answer has been given to the fore- that it was only employed during the whole going interrogatories, whereby the said company has

period from September 6, 1872, to October 27, been deceived as to the character of the risk, or if any change be made as to tenants and occupancy of these

1875, as an occasional storing place for hay, premises, without being notified to this company, and broom-corn or agricultural instruments. The indorsed upon their policy, then said policy of insurance evidence showed that Klock, the agent of the to be void and of no effect."

company defendant, went with the plaintiff "And the insured hereby covenants and engages that the representations given in the application for this in

| upon the premises at the time of the application surance is a warranty on the part of the assured, and for the policy, and saw the condition in which contains a just, full and true exposition of all the facts the building then was. It appeared, however, and circumstances in regard to condition, situation and

that plaintiff' assured him that the house would value of the property insured." On the same day and in pursuance of the

soon be completed, and would then be occupied above application, the policy of insurance in

| by himself or his son. In consequence of these suit was issued to plaintiff. Said policy pro

representations, Klock testified that he filled out vided that the application was a part of the

the application in the manner above set forthi, same, and was a warranty on the part of the as

| and afterwards read the same in Pennsylvania sured, also that the policy was made and ac

| Dutch to plaintiff, who thereupon appended his cepted in reference to the application and the

signature thereto. conditions thereto annexed, which were to be

Defendant requested the court to charge, inter used and resorted to in order to explain the a

alia, that, under all the evidence in the case, rights and obligations of the parties.

plaintiff' could not recover. Refused. Indorsed on the policy were, inter alia, the

Verdict and judgment for plaintiff. Defendfollowing conditions:

| ant thereupon took this writ, assigning for error, "1. Applications for insurance shall specify the con

| inter alia, the refusal of the above point. struction and material of the buildings to be insured, by For plaintiff in error, A. W. Schalck, Esq. whom occupied, whether as a private dwelling, or how

Contra, Messrs. J. W. Ryan and J. W. Roseotherwise; the applicant shall also state the true cash value of the property to be insured; also any other facts berry. relating and material to the risk. And the said valuation, description and survey shall be taken and deemed

Opinion by GREEN, J. Filed May 29, 1892. to be the act of the assured, and a warranty on his, her One of the conditions of the policy in suit is or their part; and said warranty shall apply to all prop

in the following words: erty insured, whether real or personal. A false description or omission to make known in said application any

"Applications for insurance shall specify the fact or feature relating to the risk, whichi, is known, construction and material of the buildings to be would induce the company to reject said application, or

insured, by whom occupied, whether as a private would in their estimation increase the hazard of the

dwelling, or how otherwise; the applicant shall same, or an overvaluation of the property or interest to beinsured, shall render absolutely void any policy issued

also state the true cash value of the property to upon such description or valuation."

be insured; also any other facts relating and “2. Any building insured by this policy becoming va material to the risk. And the said valuation, cant or tenantless for a period of fifteen days, notice

description and survey shall be taken and thereof must be immediately given to the secretary, and his consent obtained thereto in writing, otherwise the

deemed to be the act of the assured, and a policy shall be void."

warranty on his, her or their part; and said On October 27, 1875, the building was totally warranty shall apply to all property insured, destroyed by fire. Plaintiff furnished due proofs whether real or personal. A false description or of loss, but was refused payment by the com- omission to make known in said application pany defendant of the amount of his policy on any fact or feature relating to the risk, which, if the ground that he had made untrue statements | known, would induce the company to reject said in his application. He thereupon instituted the application, or would in their estimation inpresent suit.

crease the hazard of the same, or an overvaluaThe evidence showed clearly that the building tion of the property or interest to be insured, on which the policy had been issued was not a shall render absolutely void any policy issued dwelling house; that it was not provided with upon such description or valuation." stoves and pipes; that it was not certain that Another condition is as follows: "Any buildthere was any chimney, fireplace or provisioning insured by this policy becoming vacant or for securing ashes, and that it was not at the tenantless for a period of fifteen days, notice time of the application nor at any time after thereof must be immediately given to the secrethat date occupied either by the plaintiff or by tary, and his consent obtained thereto in writany other person. It appeared also that its ing, otherwise the policy shall be void." upper story was not plastered, and that the par- The application contained the following questitions were not in except the studding, also I tions and answers:

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Question. How many chimneys, stoves and fireplaces? studding, that no person lived in it up to the Ansu'cr.-One chimney, one fireplace.

time of its destruction, that during the whole of Question.-How are stoves and pipes secured?

that time, from September 6, 1872, to October 27, Answer:- Well. Question.- Are ashes secured in safe places?

1875, it was either absolutely vacant, or occaAnswer.-Well.

sionally used to store hay or broom-corn, or Question.--Who owns the building?

implements of agriculture tem porarily. In no Answer:- Applicant. Question.-Who occupies the building, and for what

sense whatever was it used as a dwelling house purposes are they occupied? How many tenants ? for a single moment during the whole time of Answer.-Applicant.

insurance. It is quite unnecessary to cite auAttached to and as a part of the application thorities to show that in such a state of facts, are the following stipulations, inter alia : prima facie, the policy was void. This was so

“But if any untrue answer has been given to | by the express terms of the instrument. On the foregoing interrogatories, whereby the said behalf of the plaintiff it was sought to avoid the company has been deceived as to the character consequences of the several manifest breaches of the risk, or if any change be made as to ten- of warranty appearing in the case by the theory ants and occupancy of these premises, without that Klock, the agent of the company, who took being notified to this company and indorsed the application, and procured and delivered the upon their policy, then said policy of insurance policy, was on the premises in person, saw the to be void and of no effect."

building just as it was, knew that it was unoc"And the insured hereby covenants and en- cupied, and, nevertheless, filled up the answers gages that the representations given in the ap- to the questions just as they are found in the plication for this insurance is a warranty on the application. It is argued that his knowledge part of the assured, and contains a just, full and was the knowledge of the company, and that true exposition of all the facts and circumstances the company, and not the insured, is bound by in regard to condition, situation and value of the his acts in writing out the answers, whether property insured.".

| they were written fraudulently or by mistake. The policy also provided that the application As matter of fact, it is true, the answers were

rt of the policy, and was a warranty on written on the application by Klock, either the part of the assured, and that the policy was from verbal answers made by Fromm or from made and accepted in reference to the applica- his personal observation. It is also true that tion and the conditions thereto annexed, which Klock was on the premises, saw the building as were to be used and resorted to in order to ex- | it was, and did make personal observation of its plain the rights and obligations of the parties. condition and surroundings. But it is equally The property insured was described in the appli- true that Fromm signed his name to the application as a “2-story log dwelling house, chunked | cation after it was filled out with the answers, and smeared in cracks, plastered inside, 26 by and did thereby adopt them as his own. Klock 22, situate in South Manheimn township, Schuyl- testifies that at the time he and Fromm were kill comty, Pennsylvania."

on the premises, Fromm told him that he inThe substance of the representations contained tended to finish the house shortly, and that he in the application, and in the answers to ques- or one of his family would move in. Thus, he tions, is that the building insured was a log said: “I understood Mr. Fromm to say at the dwelling house, two-stories high, provided with time that he would repair the house within a a chimney and a fireplace, with stoves and | very short time, and either himself or some one pipes well secured, ashes secured in safe places of his children would move in and live there, and actually occupied by the insured. In real within a short time. And, again, in reply to a fact, the building was not a dwelling house, question, he said: never having been finished for use, it was not

"Q.-He did not tell when he would fix it up? provided with stoves and pipes, it is not certain A.-In a short time; I supposed from what he said he there was any chimney or fireplace, or any would begin to fix up within a week or ten days." provision for securing ashes, it was not occupied Again, he says: “It was in good order, only by the insured, and it was never occupied by it wanted finishing, and, as I said before, ny any person from the time of the application to impression was that Mr. Fromm would finish the time of the fire. On the contrary, the un- the house and occupy it himself, or some oue of contradicted testimony, mainly that of the his children; and, under that impression, I efplaintiff and his son, shows that it was empty fected that insurance." Also, “it runs in my and altogether unoccupied at the time of the mind now that either a son or a daughter were application, that the upper story was not plas- to move into the house, and the reason they said tered, that the partitions were not in, except the they did not move was that they had not the furniture; they were expecting to get furniture the agent wrote them out differently and falsely. and then they would move into this house." In addition to this, the agent in answering the He also testified that if it had not been for these questions addressed to himself, made false anpromises and assurances, he would not have swers. Mr. Justice TURNKEY in delivering the taken the risk, and that these were what in- opinion of the court, on p. 469, said: “Upon duced him to take the application and send it to the verity of the plaintiff's testimony, he had the company.

no knowledge of the fraud or mistake of the deKlock was Fromm's witness, and was not fendant's agent previous to the fire. The agent contradicted as to this testimony. Fromm him- falsely induced him to sign a statement, which self testified as follows:

he had not made, and did not intend to make." Q.-What else did you say to Klock about occupying

| Then after stating the false answers of the agent the house?

himself, he adds: “By what rule shall that d.-Then I said the intention is to finish it sometime, I contract be void, as respects an innocent party, and probably I, or one of my sons, will move into it.

who first discovered the fraud after his loss? Q.-It was first intended that your son should move into it, and then that your son declined going in; and

The assurer believed both statements; the asthen that you said that you were going to go in it? sured knew nothing of the contents of either.

A.- Vo; only the calculation was that I or one of my | Which party shall suffer? By elementary prinboys would move in when we could.

ciples, the one who employed and gave characQ.-You were living at the other house; where was your son living at that time!

ter to the agent and issued the policy upon his A.-Lived with me in the house.

act, and not he who innocently paid his money." Q.-IIow soon was he to move in, or how soon did you On p. 468, he further says: "The authorities expect to fix it up?

go far, very likely not too far, in holding the A.-I had no time fixed for that; I just thought as quick as I could do it after I had not so many debts to

assured responsible for his warranty, and in expay any more I would fix it up.

cluding oral evidence to contradict or vary it; Q.-You would fix it up as quick as you could and then

but they do not establish that where an agent of move in?

the assurer has cheated the assured into signing A.--And I or one of the boys would move in. Q.-At that time the house was not used for anything,

the warranty and paying the premium, and the was it?

policy was issued upon the false statements of 4.-No.

the agent himself, the assured shall not prove Fromm was a Pennsylvania German, and the fact and hold the principal to the contract could not speak or write English, and Klock as if he had committed the wrong." testified that he read over the questions to him. These citations disclose the facts and conside and explained whatever was necessary, speak- / ations upon which the decision of that case wa ing in Pennsylvania Dutch, and that Fromm based, and it is only necessary to add that they understood it. This was not denied by Fromm, have no application to the present case. The nor does he say that he did not understand what case of Cumberland Valley Insurance Co. v. was in the application when he signed it. He Douglas, 8 P. F. Smith, 419, is also cited as audoes not say that he was induced to sign it just thority that a description of a house as a du'ellas it was, by any representations or promises | ing house, or as an occupied dIwelling house, does made by Klock, or that any kind of fraud or not imply a stipulation that it shall not become imposition was practiced upon him to obtain his vacant. But in that case there was no warranty signature. Had he been ignorant of the contents that the dwelling house was occupied, as there of the application, which he does not allege, we is here, and in this case there is in addition an see no reason why, in these circumstances, he express agreement in the third condition of the should not be subject to the ordinary rule, that of the policy, that if the building insured be"if one who is about to execute an instrument, came vacant or tenantless for a period of fifteen can read it, and neglects to do so; or being blind days, notice must be immediately sent to the or illiterate, chooses to act without requiring secretary and his consent obtained in writing, the contents to be made known to him, he will otherwise the policy shall be void. It is an unbe bound by it, though it turn out to be contrary disputed fact that this building was vacant for to his muind:" Greenfield's Estate, 2 Harris, on nearly three years, and no notice was given to p. 50+. The case of Eilenberger v. Protective the company. We cannot escape holding the Mutual Fire Insurance Co., 8 Norris, 461, is cited | policy void for this reason, mless we arbitrarily and much relied upon on behalf of the plaintiff, disregard the positive provision of the contract. and the rule there laid down is invoked as con- | It is no reply to say that the building was vatrolling the present case. But there the cir- cant at the time of the application, and the cumstances were entirely different. The in- agent of the company kuew it, because the consured made true answers to the questions, but dition of the policy was a continuing engage

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