
    Noah W. Beekman and Benjamin Beekman, Appellants, v. Fulton and Montgomery Counties Farmers’ Mutual Fire Insurance Association, Respondent.
    
      Insurance — a life tenant can recover only the actual value of his life interest— proof must be made of it—five per cent of the cash value of the buildings insured is an erroneous basis of valuation—rule 70 of the General Buies of Practice is inapplicable — use of the Northampton tables.
    A person having a life estate in certain lands, and who insures the buildings: thereon against loss by fire for the cash value thereof in his own name and, so far as appears, for his sole benefit, is, in the event of the total destruction of the buildings by fire, only entitled to recover the actual value of his life interest in the premises.
    In such a, case proof must be made of the actual annual value of the use of the: premises, and it is error to estimate the same at five per cent of the cash value of the buildings under rule 70 of the General Rules of Practice, which provides, that the value of a life estate in a sum paid into court “ shall be. estimated according to the then value of an annuity of five per cent on the principal sum,, during the probable life of such person, according to the Portsmouth or Northampton tables.”
    Smith and Edwards, JJ., dissented.
    
      Semble, that when proof of the actual annual value of the use of the premises and of the age of the insured has been made the jury may, in determining the-probable duration Of the life of the insured, use the Northampton tables, although such tables have not been formally read in evidence.
    
      Appeal by the plaintiffs, Boah W. Beekman and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Montgomery on the 18th day of March, 1901, upon the verdict of a jury rendered by direction of the court after a trial at the Montgomery Trial Term.
    Rule 70 of the General Rules of Practice, referred to in the opinion, is as follows:
    “ Whenever a party, as a tenant for life, or by the curtesy, or in dower, is entitled to the annual interest or income of any sum. paid into court and invested in permanent securities, such party shall be charged with the expense of investing such sum, and of receiving and paying over the interest or income thereof; but if such party is willing, and consents to accept a gross sum in lieu of such annual interest or income for life, the. same shall be estimated according to the then value of an annuity of five per cent on the principal sum during the probable life of such person, according to the Portsmouth or Borthampton tables.”
    
      Newton J. Herrick, for the appellants.
    
      Harry Sherburne and H. V. Borst for the respondent.
   Parker, P. J.:

Daniel Mosher had a life estate in a small farm and the house and barn thereon situated. He insured the buildings thereon in his own name in the defendant company—the barn for $200 and the house for $600. In the application and policy the property was described as his,” and the agreement of the company was that in the event of loss it was to pay him. On October 16,1898, such house was totally destroyed by fire, and the action is brought by said Mosher’s assignees to recover upon such policy the amount of such insurance. Several issues were set up in the answer and litigated upon the trial, but at the close of all the evidence the defendant moved that the court direct a verdict in its favor on three grounds then stated. The court seems to have denied this application but to have then held that the plaintiffs could recover only the value of Mosher’s life estate in the property destroyed and that there was no proof in the case of that value. But, inasmuch as a tender of $280 before suit brought was set up in the answer, and it then appearing that such sum was paid into court and was still there awaiting its order, a verdict for that amount was directed in favor of the plaintiffs. No exception was taken by the defendant to the denial of its motion, nór to this disposition of the case andño appeal has been taken by it from the judgment entered, on such verdict. Judgment was entered in favor of the plaintiffs that they recover such "sum of $280, less the defendant’s costs, .which are charged against the same; and from that judgment this appeal is taken.

The only question presented to us,- therefore, is whether such disposition of the case has been prejudicial to the plaintiffs.

■ It is urged by the defendant that Mosher’s interest in -the house, Being the right to usé it during his life only, the value of such right at the time of the fire measures his insurable interest therein,- and it would ascertain the value of such right by ascertaining the difference in value of the use of the farm with and without the house upon it during Mosher’s life, and that difference it claims is the extent of his insurable interest. It further claims- that Mosher could recover no more than the amount of such insurable interest, and that having omitted to give any proof of its value, the ruling the trial court was correct, It is not distinctly stated how the duration of Mosher’s life is to be ascertained; but, as I understand the argument, the Northampton tables may be put in evidence to establish that fact.

If this claim correctly defines the extent of Mosher’s right to recover and the proper method of ascertaining it, there were not facts before the jury'sufficient to base a verdict upon, and the ruling of the trial court has worked no prejudice to the plaintiffs.

But the plaintiffs claim that, even 3 Mosher’s right to recovér is limited to the pecuniary value of his right to use the house during his life, there were facts before the jury from which they might have ascertained that value -and fixed it at a much greater figure than the verdict which the. court directed. The ages of both Mosher and his wife were proved. There was also evidence tending to show the value of the house, varying from $1,200 to $600. On these facts the plaintiffs claim that it was' also lawful for the jury to use the Northampton tables without their being formally put in evidence; and hence that all facts necessary to establish the value of Mosher’s life estate in . the house, in accordance with- the provisions of Supreme Court rule No. 70, were before the jury; and that hence it was error for the court to take that question from them.

It may be conceded that such tables could be used by the jury without being formally read in evidence (Davis v. Standish, 26 Hun, 608, 616; Wager v. Schuyler, 1 Wend. 553); but I am of the opinion that the plaintiffs’ method of ascertaining the value of Mosher’s right to the use of the house for life is not the correct one. I can see no propriety in arbitrarily assuming that the value of the annual use of the house to Mosher was five per cent on the cash value of the house itself. Such a rule is applicable to sums which are invested, and to the interest on which the life tenant is entitled. And rule 70 of the Supreme Court is made applicable to no other. Upon the question as to what the annual use of a house is worth, no such arbitrary assumption should be tolerated. Such use depends upon the varying circumstances of each case ; and in each case proof should be made of its actual annual value. The tables may be used to ascertain the probable duration of the life (Schell v. Plumb, 55 N. Y. 592; Sauter v. N. Y. C. & H. R. R. R. Co., 66 id. 50), but the method of computation referred to in rule 70 has no application to this case.

There were, therefore, not sufficient facts before the court to enable the jury to properly ascertain the actual value, at the time of the fire, of Mosher’s right to use the house during his life; and, if that value is to fix the plaintiffs’ right of recovery,' the trial court did not err to their prejudice in directing the verdict which it did direct.

But the plaintiffs further claim that Mosher was not limited in his recovery under this policy to the present worth of Ms right to use the property insured during his life. There is nothing in the transaction indicating that Mosher intended to insure for himself and the remainderman, and hence the rule that would fix the .amount of his recovery in such a case cannot apply to this. (Waring v. Indemnity Fire Ins. Co., 45 N. Y. 606.) Under the contract he is insured as the owner and at a figure that is evidently based upon the property’s full estimated value. Ro information was given by Mosher that his interest in the premises was anything less than that of an absolute owner, and I think from the evidence we must assume. that the defendant supposed he was such owner and intended to insure him as stich. But “ the party applying for insurance is not hound to disclose the nature or extent of his interest to the insurer unless requested. It may be shown by parol to exist, and the company must pay its value to the extent of the amount named in the policy.” (Cross v. National Fire Ins. Co., 132 N. Y. 136.) Hence, this policy was a valid one. But the defendant’s obligation tinder it does not extend beyond Mosher’s insurable interest in the house destroyed.' As to what that interest is, I am of the opinion that it. must be confined to the actual value, at the time of the fire, of Mosher’s right to use the same during his life. The value of the use does not depend upon the cost of construction. Locality and surroundings in every case determine the value of the use. Hence, stifficient facts must be proven, by the ordinary method of proof, to establish that value. No such facts were shown in this case and hence there were none for the jury to pass upon. This view of the case leads to the conclusion that no error was committed upon the trial prejudicial to the plaintiffs, and the judgment appealed from must be affirmed.

All concurred, except Smith and Edwards, JJ., dissenting.

Smith, J. (dissenting) :

In concluding, the author, of May on Insurance (4th ed.) in section 448, note a, says:' “ But the better view appears to be that the remainder-man has no interest in such insurance in the absence of' some contract or duty giving him rights therein.” .In Harrison v. Pepper (166 Mass. 288) a life tenant had insured to the frill value of the property; the insurance had been paid and the remainderman sought to recover from him the amount received over and above the value of his life interest upon the ground that the recovery over and above such interest was as trustee for him. It was there held that the remainderman had no interest whatever in the insurance, notwithstanding the amount received was greater than the fife interest. Morton, J., in writing for a Unanimous court says: In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to> keep the premises insured for the benefit of the remainderman Each can insure his own interest, but in the absence of any stipulation or agreement neither has any claim upon the proceeds of the other’s policy any more than in the case of mortgagor and mortgagee or lessor and lessee or vendor and vendee. * * * It is not averred and does not appear that the defendant intended to make a present of the proceeds of the policy to the plaintiff or was insuring for her benefit. Whether the amount of indemnity received by the defendant for her loss was more or less than the valne of her interest cannot affect the plaintiff. Nor can the defendant be converted into a trustee for the plaintiff by the mere fact that the amount which she received was equal to the full value of the house. It was paid to and received by her as indemnity for the loss which she had sustained and, as already observed, does not stand in the place of the property insured.”

In Waring v. Indemnity Fire Ins. Co. (45, N. Y. 606) it was held that a person might insure in his own name the property of another for the benefit of the owner, but it was there held that such must have been the intention of the person effecting the insurance. In Berry v. A. C. Ins. Co. (132 N. Y. 49) it was held that a tenant who had agreed verbally with his landlord to keep the demised premises insured has an insurable interest in the property and may insure in his own name to the extent of the amount agreed to be insured, and when no amount is named his interest is the full value. Brown, J., in writing the opinion of the court, seems to place the right to recover the full value of the premises solely upon the liability of the tenant under his contract to insure.

In Niblo v. North American Fire Insurance Co. (1 Sandf. 552), it is held that a tenant for a year has an insurable interest in buildings demised to him, but he cannot recover the full value of such buildings in case of loss. In Agricultural Ins. Co. v. Yates (10 Ky. Law Repr. 984) it is held, that where the owner of property, insured as hers absolutely, has only a life estate, she can recover only the value of her interest in the buildings destroyed, and not their full value.

These authorities would seem to me to negative the right of these plaintiffs to recover the full value of the property destroyed. They are limited, I think, to their insurable interest as life tenants.

What, then, was the insurable interest of the life tenants % If a fee owner insures farm buildings the measure of his recovery in case of fire is not the difference in value of the farm with the buildings and without. His right is to recover the value of the buildings,, and in determining that value the principal factor is the cost of rebuilding. If this building had been insured for the. benefit of the remainderman and life tenants as their interests might appear, I know of only one rule by which to apportion the insurance when recovered as between them. That apportionment must clearly be made undér the rule of the court and the Northampton tables. If the insurance were for the full value of the building the life tenant would receive that proportion of the insurance as would represent his life interest under that rule. When he insures his interest only why should a different rule govern — a different measure of damage be applied ? ' If such a building were to be restored, the life tenant would have an equitable duty to furnish such a proportion of the cost of restoration as would be represented by the value of his life estate as thus estimated. Such then would seem to me a more equitable rule of damage to be applied in determining the plaintiffs* loss in the case at bar. From the evidence the jury should have determined the value of that building, and from the rule of the court and the Northampton tables the value'of the life estate could be mathematically and, I think, legally obtained. For these reasons. I think a new trial should be granted.

Edwards, J,, concurred.

Judgment affirmed, with costs.  