It is true that the widow claims one-third by devolution, and so do the children their distributive shares; but that this is not the whole case is manifest from the objection made by the chil Where 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 refuses an appraisement of it. Held (affirming the court below), she cannot wait until the personal property is sold and turned into cash and then apply for her $300 out of the proceeds. Held (affirming the court below). A widow's right to Held (affirming the court below). An administrator is cannot be witnesses. The auditor rejected evidence offered to prove certain declarations of the decedent denying the existence of the alleged contract, on the ground that they were manifestly in his own interest if he survived, and not namely, she was seeking to charge the estate and occupied the position of a creditor seeking to set aside a contract of the intestate made in his lifetime. The basis of the objection was the real or pretended contract. That aside, nothing was in the way of the widow taking the third part by the operation of law. That established, the children took that third by virtue of the contract. It is admitted that if she were a creditor of the estate, claiming under a contract, that she could not testify in her own behalf nor could they against her. By the settled construction of the proviso to the first section of the Act of 1869, the act does not apply to any civil proceeding where such contract is sought to be enforced. Where one of the parties to a contract is dead the issue arising thereon between the survivor and the representatives of the deceased is excepted out of the operation of the act. Here it is not the widow who claims a contract--she denies it-but the children allege one which defeats her and enures to their benefit. Their right under that contract passed to them from the decedent by law, and he is the assignor within the meaning of the statute. No disguise can conceal the real issue, which involves the against his interest in any possible event. Held (re- simple inquiry and no other, whether Venus versing the court below), that these declarations were offered against those who actually claimed under the contract, and that clearly one of the alleged parties had the right to prove the other's admission that they had made no such contract or agreement. and Euphemia Webb made an ante-nuptial contract that the survivor should take no part of the estate of the deceased. Any action or pro An oral ante-nuptial agreement should not be found, ceeding for the determination of that issue, is not within the act allowing parties in interest to be witnesses. save upon clear and convincing proof. The burden is upon those who aver it, and they must do more than show a slight preponderance of testimony-they must adduce that which will be satisfactory when considered with the counter-testimony, or the proof will be deemed insufficient. At different times and to a number of persons Venus declared that he had no marriage contract or bargain with his wife. To one he remarked, after denying that he had such agree Appeal 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. This controversy is between the widow of Henry Venus and his children. She claims out died first he would take what the law allowed out of her estate. All these declarations were rejected for the reason that "they were mani COMPANY v. FROMM. Where the agent of an insurance company examines and inspects a building upon which the owner desires to effect a policy of insurance, and afterwards fills up an application, which he reads to the owner, and which is signed by him, such agent is to be regarded with respect to such application as the agent of the owner, and not of the company, and hence the company will not be estopped from setting up the falsehood of statements in the application as to the condition and use of the premises, as a defense to an action on a policy of insurance issued by it in pursuance of such application. Eilenberger v. Protective Mutual Fire Ins. Cv., 8 Norris, 464, distinguished. festly in his own interest, if he survived and not POTTSVILLE MUTUAL FIRE INSURANCE against his interest in any possible event." The very point in dispute was the making of the alleged contract averred by one party and denied by the other. Had the point arisen in the lifetime of Venus, his wife could have proven his admissions that there was no such contract, whether such admissions at the time they were made were self-disserving or self-serving. They were offered against those who actually claimed under the contract, no matter what was the form of their claim, and whose right to the property or money in dispute hung upon the establishment of it. Clearly, one of the alleged parties had the right to prove the other's admissions that they had made no such contract or agreement. The testimony consists entirely of declarations and acts of the parties after their marriage, and while they felt the weight of the displeasure of his children because of the marriage. But once did they admit the contract in presence of each other; then evidently to be communicated to his children to effect their reconcilation; they did not become reconciled. Afterwards, repeatedly, and to within a few months of his death, in conversation with his neighbors he explicitly denied that he had made any contract of the kind. Had the auditor not been constrained to In an application for a policy of insurance on a certain building, the same was described as a dwelling house occupied by the applicant. It was as a matter of fact an unfinished building which never was occupied by the applicant or any one else. By the terms of the policy issued in pursuance of such application, the application was made part of said policy, and all statements contained therein were warranted to be true. A loss having occurred under the policy, and suit having been brought thereon. Held, that the plaintiff had been guilty of a breach of warranty which precluded his right of recovery. Cumberland Valley Insurance Co. v. Douglas, 8 Smith, 419, distinguished. Error to the Court of Common Pleas of Schuylkill county. Covenant by Samuel Fromm against the Pottsville Mutual Fire Insurance Company upon a policy of insurance issued by the company defendant on certain premises belonging to the plaintiff. reject a portion of the testimony, doubtless, he would not have been "of the opinion that the weight of the evidence is in favor of the alleged ante-nuptial contract." On the trial, before WALKER, J., the followAn oral ante-nuptial agreement should not being facts appeared: The plaintiff, 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 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 must adduce that which will a policy of insurance on the same. On Sepbe satisfactory when considered with the countember 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 the alleged contract, and certainly not sufficient to warrant its finding. We are not convinced that there is error in the findings of fact, or applications of the law relative to the widow's claim for $300, under the Act of April 14, 1851, and its supplements. Decree reversed, and it is now ordered and decreed that distribution be made as stated in the "first alternative distribution" reported by the auditor. Costs of appeal to be paid by the appellees. Record remitted for enforcement of this decree. For appellant, Messrs. George W. McElroy and Wm. Hay. Contra, Messrs. Blackford & Stewart. "Two-story log dwelling house, chunked and smeared Q. How are stoves and pipes secured? Q.-Are ashes secured in safe places? Q.-Who owns the building? Q.-Who occupies the building, and for what purposes Attached to and as a part of the application were, inter alia, the following stipulations: "But if any untrue answer has been given to the foregoing interrogatories, whereby the said company has change be made as to tenants and occupancy of these premises, without being notified to this company, and indorsed upon their policy, then said policy of insurance to be void and of no effect." been deceived as to the character of the risk, or if any "And the insured hereby covenants and engages that the representations given in the application for this insurance is a warranty on the part of the assured, and contains a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of the property insured." that it was only employed during the whole period from September 6, 1872, to October 27, 1875, as an occasional storing place for hay, broom-corn or agricultural instruments. The evidence showed that Klock, the agent of the company defendant, went with the plaintiff' upon the premises at the time of the application for the policy, and saw the condition in which the building then was. It appeared, however, that plaintiff assured him that the house would soon be completed, and would then be occupied by himself or his son. In consequence of these On the same day and in pursuance of the above application, the policy of insurance in suit was issued to plaintiff. Said policy pro-representations, Klock testified that he filled out vided that the application was a part of the same, and was a warranty on the part of the assured, also that the policy was made and accepted in reference to the application and the conditions thereto annexed, which were to be used and resorted to in order to explain the rights and obligations of the parties. Indorsed on the policy were, inter alia, the following conditions: "1. Applications for insurance shall specify the construction and material of the buildings to be insured, by whom occupied, whether as a private dwelling, or how otherwise; the applicant shall also state the true cash value of the property to be insured; also any other facts relating and material to the risk. And the said valuation, description and survey shall be taken and deemed to be the act of the assured, and a warranty on his, her or their part; and said warranty shall apply to all property insured, whether real or personal. A false description or omission to make known in said application any fact or feature relating to the risk, which, if known, would induce the company to reject said application, or would in their estimation increase the hazard of the same, or an overvaluation of the property or interest to be insured, shall render absolutely void any policy issued upon such description or valuation." "2. Any building insured by this policy becoming va cant or tenantless for a period of fifteen days, notice thereof must be immediately given to the secretary, and his consent obtained thereto in writing, otherwise the policy shall be void." On October 27, 1875, the building was totally destroyed by fire. Plaintiff furnished due proofs of loss, but was refused payment by the company defendant of the amount of his policy on the ground that he had made untrue statements in his application. He thereupon instituted the present suit. The evidence showed clearly that the building on which the policy had been issued was not a dwelling house; that it was not provided with stoves and pipes; that it was not certain that there was any chimney, fireplace or provision for securing ashes, and that it was not at the time of the application nor at any time after that date occupied either by the plaintiff or by any other person. It appeared also that its upper story was not plastered, and that the partitions were not in except the studding, also the application in the manner above set forth, and afterwards read the same in Pennsylvania Dutch to plaintiff, who thereupon appended his signature thereto. Defendant requested the court to charge, inter alia, that, under all the evidence in the case, plaintiff could not recover. Refused. Verdict and judgment for plaintiff. Defendant thereupon took this writ, assigning for error, inter alia, the refusal of the above point. For plaintiff in error, A. W. Schalck, Esq. Contra, Messrs. J. W. Ryan and J. W. Roseberry. Opinion by GREEN, J. Filed May 29, 1882. One of the conditions of the policy in suit is in the following words: "Applications for insurance shall specify the construction and material of the buildings to be insured, by whom occupied, whether as a private dwelling, or how otherwise; the applicant shall also state the true cash value of the property to be insured; also any other facts relating and material to the risk. And the said valuation, description and survey shall be taken and deemed to be the act of the assured, and a warranty on his, her or their part; and said warranty shall apply to all property insured, whether real or personal. A false description or omission to make known in said application any fact or feature relating to the risk, which, if known, would induce the company to reject said application, or would in their estimation increase the hazard of the same, or an overvaluation of the property or interest to be insured, shall render absolutely void any policy issued upon such description or valuation." Another condition is as follows: "Any building insured by this policy becoming vacant or tenantless for a period of fifteen days, notice thereof must be immediately given to the secretary, and his consent obtained thereto in writing, otherwise the policy shall be void." The application contained the following questions and answers: Question.—How many chimneys, stoves and fireplaces? studding, that no person lived in it up to the Answer.-One chimney, one fireplace. Question.-How are stoves and pipes secured? Answer.-Well. Question.-Are ashes secured in safe places? Answer.-Well. Question.-Who owns the building? Answer.-Applicant. Question.-Who occupies the building, and for what purposes are they occupied? How many tenants? Answer.-Applicant. Attached to and as a part of the application are the following stipulations, inter alia: "But if any untrue answer has been given to the foregoing interrogatories, whereby the said company has been deceived as to the character of the risk, or if any change be made as to tenants and occupancy of these premises, without being notified to this company and indorsed upon their policy, then said policy of insurance to be void and of no effect." time of its destruction, that during the whole of that time, from September 6, 1872, to October 27, 1875, it was either absolutely vacant, or occasionally used to store hay or broom-corn, or implements of agriculture temporarily. In no sense whatever was it used as a dwelling house for a single moment during the whole time of insurance. It is quite unnecessary to cite authorities to show that in such a state of facts, prima facie, the policy was void. This was so by the express terms of the instrument. On behalf of the plaintiff it was sought to avoid the consequences of the several manifest breaches of warranty appearing in the case by the theory that Klock, the agent of the company, who took the application, and procured and delivered the policy, was on the premises in person, saw the 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 application for this insurance is a warranty on the part of the assured, and contains a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of the property insured." The policy also provided that the application was a part of the policy, and was a warranty on the part of the assured, and that the policy was made and accepted in reference to the application and the conditions thereto annexed, which were to be used and resorted to in order to explain the rights and obligations of the parties. The property insured was described in the application as a "2-story log dwelling house, chunked and smeared in cracks, plastered inside, 26 by 22, situate in South Manheim township, Schuylkill county, Pennsylvania." The substance of the representations contained in the application, and in the answers to questions, is that the building insured was a log dwelling house, two-stories high, provided with a chimney and a fireplace, with stoves and pipes well secured, ashes secured in safe places and actually occupied by the insured. In real fact, the building was not a dwelling house, never having been finished for use, it was not provided with stoves and pipes, it is not certain there was any chimney or fireplace, or any provision for securing ashes, it was not occupied by the insured, and it was never occupied by any person from the time of the application to the time of the fire. On the contrary, the uncontradicted testimony, mainly that of the plaintiff and his son, shows that it was empty and altogether unoccupied at the time of the application, that the upper story was not plastered, that the partitions were not in, except the to the questions just as they are found in the application. It is argued that his knowledge was the knowledge of the company, and that the company, and not the insured, is bound by his acts in writing out the answers, whether they were written fraudulently or by mistake. As matter of fact, it is true, the answers were written on the application by Klock, either from verbal answers made by Fromm or from his personal observation. It is also true that Klock was on the premises, saw the building as it was, and did make personal observation of its condition and surroundings. But it is equally | true that Fromm signed his name to the application after it was filled out with the answers, and did thereby adopt them as his own. Klock testifies that at the time he and Fromm were on the premises, Fromm told him that he intended to finish the house shortly, and that he or one of his family would move in. Thus, he said: "I understood Mr. Fromm to say at the time that he would repair the house within a very short time, and either himself or some one of his children would move in and live there, within a short time. And, again, in reply to a question, he said: "Q.-He did not tell when he would fix it up? A.-In a short time; I supposed from what he said he would begin to fix up within a week or ten days." Again, he says: "It was in good order, only it wanted finishing, and, as I said before, my impression was that Mr. Fromm would finish the house and occupy it himself, or some one of his children; and, under that impression, I effected that insurance." Also, "it runs in my mind now that either a son or a daughter were to move into the house, and the reason they said they did not move was that they had not the 4.-Then I said the intention is to finish it sometime, and probably I, or one of my sons, will move into it. Q. It was first intended that your son should move into it, and then that your son declined going in; and then that you said that you were going to go in it? 4.-No; only the calculation was that I or one of my boys would move in when we could. Q.-You were living at the other house; where was your son living at that time? A.-Lived with me in the house. Q.-How soon was he to move in, or how soon did you expect to fix it up? 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 pay any more I would fix it up. the agent wrote them out differently and falsely. In addition to this, the agent in answering the questions addressed to himself, made false answers. Mr. Justice TURNKEY in delivering the opinion of the court, on p. 469, said: "Upon the verity of the plaintiff's testimony, he had no knowledge of the fraud or mistake of the defendant's agent previous to the fire. The agent falsely induced him to sign a statement, which he had not made, and did not intend to make." Then after stating the false answers of the agent himself, he adds: "By what rule shall that contract be void, as respects an innocent party, who first discovered the fraud after his loss? The assurer believed both statements; the assured knew nothing of the contents of either. Which party shall suffer? By elementary principles, the one who employed and gave character to the agent and issued the policy upon his act, and not he who innocently paid his money." On p. 468, he further says: "The authorities go far, very likely not too far, in holding the assured responsible for his warranty, and in excluding 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? A. And I or one of the boys would move in. the assurer has cheated the assured into signing Q.-At that time the house was not used for anything, the warranty and paying the premium, and the was it? A.-No. policy was issued upon the false statements of the agent himself, the assured shall not prove the fact and hold the principal to the contract as if he had committed the wrong." These citations disclose the facts and conside Fromm was a Pennsylvania German, and could not speak or write English, and Klock testified that he read over the questions to him 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 dwellas it was, by any representations or promises ing house, or as an occupied dwelling 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 mind:" Greenfield's Estate, 2 Harris, on nearly three years, and no notice was given to p. 504. The case of Eilenberger v. Protective the company. We cannot escape holding the Mutual Fire Insurance Co., 8 Norris, 464, is cited policy void for this reason, unless 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 knew it, because the consured made true answers to the questions, but | dition of the policy was a continuing engage |