
    *Haxall's Ex’ors v. Shippen and Wife and Others.
    December, 1839,
    Richmond.
    [34 Am. Dec. 745.]
    (Absent Parker, 3.)
    
    Fire Insurance — Case at Bar. — Testator, having Insured his dwelling house against loss by fire, by a covenant of assurance to himself, his heirs and assigns, devises the same tenement and the farm on which he lived, to his wife for life, remainder to his two daughters in fee; the house is burnt down during the life of the wife: she receives the insurance money, and, without the concurrence of the devisees in remainder, expends it in the building of a new house on the premises; and then dies, leaving the new house standing, which devolves with the farm to the devisees in remainder, who are then both femes covert, and they and their husbands both survive the tenant for life: Held,
    Same — Same—Application of Insurance Money to Reinstating Premises. — That neither the covenant of insurance, though to the assured, his heirs and assigns, nor the testator’s will, worked any special destination of the insurance money to the purpose of reinstating the premises.
    Same — Same—Rights of Life Tenant and Remaindermen in Insurance Money. — That the tenant for life had a right to receive the insurance money; but when received, it was mere personal estate, of which she had a right to the use for life, and her daughters to the remainder; and upon the marriage of the daughters, the marital rights of their husbands attached to it, as to any other personalty to which their wives were entitled in remainder.
    Same — Same—Same.—That the tenant for life had no right to convert the insurance money into real estate, by applying it to the building oí a new house without the consent of the remaindermen.
    Same — Same—Same.—That, therefore, at the death of the tenant for life, the husbands of the devisees in remainder had a right to call for the whole insurance money, without any deduction for the value of the new house put on the premises by the tenant for life and left standing at her death.
    Thomas Shore died in the year 1800, and by his will devised the tenement and plantation on which he lived, called Violet Bank farm, in Chesterfield, to his wife Jane Shore for life, remainder to his three daughters Jane, Elizabeth and Louisa, or such of them as should be living at his wife’s death. On the premises so devised, *there had been erected by the testator in his lifetime, a valuable wooden dwelling house, on which he had effected a policy of insurance with the Mutual Assurance Society, as early as the year 1797, by a covenant insuring the house to the cove-nantee, his heirs and assigns. Mrs. Shore took possession of the premises so devised to her for life and so insured, and continued to occupy the house for her dwelling, until she married a second husband Henry Haxall, and thenceforth her second husband and she continued to occupy the same till the house was burned down by accidental fire in October 1810. The quotas or premiums for insurance for the years 1809 and 1810 were then in arrear; all due for the previous years appeared to have been regularly paid. The net amount of loss for which the Mutual Assurance Society was responsible, was 7833 dollars. The society refused to pay the principal to Haxall and wife,’ the tenants for life, but made an order directing the payment of the interest to them during the continuance of the life estate.
    In January 1814, Haxall and wife exhibited a bill in the superior court of chancery of Richmond, against Elizabeth and Louisa Shore, the devisees in remainder (the other devisee Jane being dead), and the Mutual Assurance Society ; setting forth the will of Thomas Shore, the insurance of the house, the destruction thereof by fire, and the refusal of the society to pay them the principal money due for the loss ; and that they were desirous of applying the principal to the building of another house for their dwelling during the life of mrs. Haxall, and to leave the same at her death for the use and benefit of the devisees in remainder; and praying a decree, that the money should , be paid to them by the society for that purpose. The devisees in remainder, then infants, by guardian ad litem, answered and submitted their rights to the court. And the Mutual Assurance Society having also answered, the court on the *22d June 1814, declaring, that by the will of the testator Thomas Shore, mrs. Haxall was entitled to the use of the money due from the society for the loss by fire of the dwelling house insured, in like manner as she would have been entitled to the use of the house itself if the loss had not happened, — decreed, that the society should pay to Haxall and wife the principal sum of 7833 dollars, upon their entering into bond with surety to be approved by a commissioner, in the penalty of 15000 dollars, payable to the two infant devisees ih remainder, with condition to pay them, or their representatives, the said principal sum of money, immediately after the death of mrs. Haxall. The bond was accordinglj executed, in Eebruary 1816, by Henry Haxall and mrs. Haxall, and by William Haxall and Philip Haxall as their sureties ; the condition of which was in these words— “That whereas the above bound Henry Hax-all and Jane his wife have recovered by a decree of the superior court of Richmond pronounced on the 22d June 1814, from the Mutual Assurance Society &c. the sum of 7833 dollars, the amount to which the said Elizabeth Shore and Louisa Shore are entitled after the death of the said Jane Haxall; now, if the said Henry Haxall and Jane his wife, William Haxall and Philip Haxall, do and shall well and truly pay, or cause to be paid, unto the said Elizabeth and Louisa Shore, the aforesaid sum of 7833 dollars, immediately after the death of the said Jane Haxall, then the above obligation to be void.”
    This bond being returned by the commissioner to the court, the money due from the Mutual Assurance Society was paid to Henry Haxall, who proceeded to build another dwelling house on the land1 called Violet Bank ; in the building of which the whole of this money, and more, was expended. At the time the new building was commenced, Elizabeth and Louisa Shore, the devisees in remainder, were both infants ; Elizabeth was unmarried ; Louisa had married William Shippen.
    *Mrs. Haxall survived her second husband, and died in May 1831, upon which the land called Violet Bank, with the new house thereon, devolved to the devisees in remainder, Louisa the wife of William Shippen, and Elizabeth who was now the wife of John Gilliam.
    Shippen and wife and Gilliam and wife brought an action on the above mentioned bond, against William Haxall, the only surviving obligor, to recover the 7833 dollars mentioned in the condition, with interest from the date of mrs. Haxall’s death.
    Upon the institution of that suit, and before judgment had been recovered therein, William Haxall exhibited his bill in chancery in the circuit superior court of Petersburg, against Shippen and wife and Gilliam and wife, exhibiting copies of the record of the suit of Haxall and wife against the devisees in. remainder and the Mutual Assurance Society, and of the bond executed in pursuance of the decree ; alleging, that Henry Haxall had applied the whole of the insurance money by him received, and more, to the building of another dwelling house on the land called Violet Bank, that the same was standing there at the death of mrs. Haxall, and that the devisees in- remainder had thus received the full benefit of the insurance money; and praying, therefore, that the bond should be delivered up to be cancelled, or such other relief as the case entitled him to. And after judgment had been recovered upon the bond at law, he filed an amended bill praying an injunction to further proceedings upon it; which was awarded.
    The defendants Shippen and wife and Gilliam and wife put in their answer, wherein, not denying or admitting that the whole of the insurance money had been expended in building- another dwelling house on the premises, nor denying that the new dwelling house devolved to them on the death of mrs. Haxall, they insisted, that whether such was the case or not, they were entitled to *the whole amount of the insurance money, secured to them by the bond taken in pursuance of the decree of the court of chancery of June 1814, which decree they relied upon as conclusive of their right to it.
    There was evidence proving very clearly, that the whole of the insurance money received on account of the loss of the old house, and about 500 dollars more, had been expended in the building of the new house.
    The cause was transferred to the circuit superior court of Surry. The plaintiff William Haxall died pending the proceedings, and they were revived in the name of his executors. And then, on the motion of the defendants, the court dissolved the injunction.
    Haxall’s executors applied by petition to this court for an appeal from the order of dissolution ; which was allowed.
    Heigh, for the appellants,
    argued, 1. That the court of chancery of Richmond, in its decree of June 1814. under which Henry Haxall received the insurance money due for the loss of the old house, did not decide, or intend to decide, the points now presented ; did not intend to decide, that the insurance money should not be applied to the rebuilding of another house, or if it should be so applied, and the new house left for the devi-sees in remainder, they nevertheless should have the insurance money also. The .Mutual Assurance Society, acting upon its own rules, refused to pay the principal to the tenants for life, and ordered, that the interest only should be paid them during the continuance of the life estate. They insisted in their bill, that they were entitled to receive the principal, to be applied to the building of a new house in place of the old one that had been destroyed, for mrs. Haxall’s dwelling during her life, to be left, instead of the old one, for the devisees in remainder at her death ; and prayed the court to decree that the principal of the insurance*money should be paid them for that purpose. The chancellor declared, that by the will of the testator Thomas Shore, mrs. Haxall was entitled to the use of the money due from the society for the loss of the dwelling house insured, in the same manner as she would have been entitled to the use of the house itself if it had not been burnt. Now, she was entitled by the will of her husband to the use of the house for her dwelling, and she could no otherwise enjoy the use of the insurance money in the same manner, but by building another house in place of the old one for her dwelling. If the court had thought her entitled to the use of the insurance money, as money only, there would have been no necessity to alter the resolution of the Mutual Assurance Society on the subject; her enjoyment of the interest would have been the full enjoyment of the use of the money. It was because the chancellor thought her entitled to the use of it in another manner, namely, in providing herself a dwelling, that he decreed the payment of the principle to her. It was true the decree directed the payment of the principal to Haxall and wife,, upon their giving bond with surety to the devisees in remainder, with condition to return the principal to them upon the death of mrs. Haxall: but the only purpose of requiring that bond was, that though the money might be applied to the building of a new dwelling house, yet as it was to be paid into the hands of the second husband, and as the building of the new house was prospective, and the money might not be applied to that purpose, such a bond was necessary to secure the rights of the devisees in remainder ; and however general the terms of the condition of the bond required by the decree, it ought to be restricted to the purpose the bond was intended to answer. While, therefore, he admitted that the decree of June 1814 could not now be reversed or altered, yet, he said, the court must now ascertain the construction *and purpose of it; that if the decree intended not to authorize, in express terms, the application of the insurance money to the building of a new house in place of the old one, for the dwelling of the devisee for life, it at least intended to leave the question of the proper application of it open ; and that, supposing the decree ambiguous, the court should put such a construction upon it as would best comport with the rights of the devisee for life as well as of the devisees in remainder. And then he contended, 2. That, according to just construction and effect of the will of mr. Shore, the insurance money which should become due in case of the destruction of the dwelling house he left at Violet Bank, ought, upon the happening of the loss, to have been applied to the building of a new house in place of the old one, in order to carry into effect the bounty he intended for his wife, to whom he devised the house during her life, and the bounty he intended for his daughters, to whom he devised it in remainder. Owning this house, which he had used as a dwelling for himself and his family ; having insured it against loss by fire by a covenant of the assurers to himself and his heirs ; intending to provide a comfortable dwelling for his wife as long as she should live ; a dwelling too for his daughters, then in early infancy, who were, of course, till their marriage or full age, to live with their mother ; he devised the house, thus insured, to his wife for life, remainder to his daughters. He had provided the insurance as a muniment and protection for the dwelling house ; as the means, in case that should be destroyed, of building another in its place. He intended to give his wife real estate, not money ; to provide a dwelling house for her at Violet Bank, not to give her interest on insurance money with which she might rent a dwelling house elsewhere ; and the Violet Bank farm would be reduced in value to her, if she should not reside upon it. He intended too, to devise *real estate to his daughters, not to bequeath them money ; real estate, which in case of their marriage would be unalienable without their consent, and in case of their death would descend to their heirs; not money, which upon their marriage would belong to their husbands, and at their death devolve to their next of kin who might be strangers to the testator’s blood. The court ought, therefore, to regard the insurance money as a fund destined to restore the dwelling house in case it should be destroyed by fire ; and it followed, that the money had been laid out on the estate for the very purpose to which it was originally destined. And to sustain him in this view of the case, he cited Norris v. Harrison, 2 Madd. Ch. Rep. 268. It was true, that, in the subsequent case of Noble v. Cass, 2 Sim. 343, 2 Condens. Eng. Ch. Rep. 447, (which case, however, presented a very different question), it was remarked upon the decision of Norris v. Harrison, that it “turned on the acts of the party and the expressions in the will of the testator, and not on any abstract rule of equity that money paid on a policy of insurance effected by a tenant for life, was to be considered as belonging to the inheritance.” Neither did he contend for any such abstract rule of equity here ; his proposition was, that the testator having in his lifetime insured his dwelling house by a covenant to himself and his heirs, and then devised the house to his wife for life, manifestly for the purpose of providing her a dwelling, with remainder to his daughters, the insurance money, in this case, belonged to the inheritance ; that it was destined by the testator to restore the house in case it should be destroyed by fire during the life of his wife; and that the precise bounty which he intended for his wife certainly, and (he thought) for his daughters too, could only be effectuated by the application of the insurance money to the rebuilding of a dwelling house on the same estate. But 3. if he was mistaken on the questions touching the construction and effect of the decree of June 1814, and the rights of the parties under the will of their common de-visor, yet, he said, the money expended on the new house ought to be considered as a satisfaction of the money due on the bond which was taken in pursuance of that decree. Ror that was a debt contracted by Henry Haxall and mrs. Haxall, to mrs. Shippen and mrs. Gilliam, the daug-hters of the one and stepdaughters of the other. The decree required both Haxall and his wife to join in the bond, and she did join in it. And he endeavored to liken the case to that class of cases, in which a parent being indebted to a child, and giving the child property of equal value to the debt, though not ejus-dem generis, the gift of the property had been held a satisfaction of the debt. Kelly v. Kelly’s ex’ors, 6 Rand. 176. Or, 4. at the least, the value of the new house, in the state it was at the time of mrs. Haxall’s death, when it devolved to the devisees in remainder, ought to be ascertained, and so much ought to be discounted from the principal due on the bond. He admitted, that if the old house had remained unimpaired, and the devisee for life had built a new one, she would have had no claim against the dev-isees in remainder, for the value of the improvement thus voluntarily put upon the estate, however judicious or valuable. But he said, the present case was altogether peculiar. The house devised to her for her dwelling was destroyed by fire: the money due for the loss upon a policy of insurance effected by the devisor, was applied to the building of a new house on the same place : the new'building was not an improvement of the life estate only, but of the inheritance also, was so intended by the tenant for life, and in fact so enured. The devisees in remainder, getting the benefit of the improvement, could not, in equity, claim also the whole fund expended in making it. Their husbands, indeed, were now entitled to their ^rights in the money due by the bond, whatever those rights were ; but if.there was an equity against the wives affecting those rights, that equity ought to be enforced against the husbands. Besides, no objection was ever made by or on behalf of the devisees in remainder, to the application of the insurance money to the new building: Shippen had married one of them before the new building was commenced, and he made no objection.
    Rhodes and Macfarland, for the appellees,
    maintained, 1. That the chancellor’s decree of June 1814 determined the very questions now again controverted, touching the relative rights of the devisee for life, and of the devisees in remainder, in the insurance money ; and as that decree could not now be reviewed, it was a conclusive bar to the relief which the appellants now sought. The chancellor’s declaration, that mrs. 'Haxall was entitled to the use of the insurance money in like manner as she would have been entitled to the use of the house itself if the loss had not happened, merely denied the right of the Mutual Assurance Society to hold the principal, paying her only the interest; and affirmed her right to have the principal paid her, to be managed, invested or improved, in any manner she thought most advantageous and convenient to her. Haxall and wife, in their bill, asked a decree for the principal of the insurance money, for the purpose of applying it to the building of another house, for the benefit of the tenant for life, and of the remaindermen ; and the chancellor decreed, that the principal should be paid to them ; but so far from authorizing the application of it to the building of a new house, to be substituted for the money to the devisees in remainder, he held that the re-maindermen were entitled to the remainder of the fund in money ; for the terms on which he decreed the money to Haxall and wife, were that they should give bond with surety to pay the principal to the dev-isees in remainder, ^immediately after mrs. Haxall’s death. If he had intended to authorize the application of the money to the building of a new house, and the substitution of the house for the money to the devisees in remainder, he would have required a bond from Haxall and wife, with condition, in the alternative, either that the money should be expended in rebuilding, or paid over to the remaindermen at mrs. Hax-all’s death. In requiring that the money should he paid to the remaindermen, in all events, immediately after mrs. Haxall’s death, he denied the right of the tenant for life, so far as the remaindermen were concerned, to apply it to the building of a new house, and thus give them a house in place of the money. And they said it was plain, that Haxall and wife so understood the decree ; for they hesitated for near two years tq accept the money upon the terms of the decree ; and then they gave a bond, the condition of which recited, that Elizabeth and Louisa Shore were entitled to the money after the death of mrs. Haxall. This bond was, in effect, the execution of the decree by them according to their own interpretation of it; and this interpretation of the decree was correct : but if it was not, the obligors were nevertheless bound by the bond. The decree and the bond certainly left Haxall and wife free to apply the money to the building of a new house, or to any other purpose they thought proper ; but the application they made, or any application they might have made of it, could not affect the right of the devisees in remainder to call for the money at mrs. Haxall’s death. 2. Supposing, however, that the decree and bond left the question open, they maintained, that the devisees in remainder became entitled to call for the money, and the whole of the money, after the expiration of mrs. Haxall’s life estate. The will of the testator Thomas Shore, far from indicating any destination of the money which might accrue upon the policy of insurance in case of loss, to the purpose of rebuilding, *made no mention of it or allusion to it. And this distinguished the present case from that of Norris v. Harrison ; certainly, according to the vicechan-cellor’s exposition of that case in Noble v. Cass. If the covenant of insurance to the assured, his heirs and assigns, ran with the land, so as to give the heirs and devisees of the land, each pro interesse suo, a right to recover compensation for loss; yet it gave them a title only to recover compensation in damages. The policy of insurance, and the rights of the covenantee, his heirs and assigns, under it, were personal property : the damages when recovered by the devisee of the covenantee, were merely personal. Nor was there any principle of law or equity which required the application of the money recovered to the purpose of rebuilding, so as to make it quasi real. They referred to Platt on Covenants p. 183, 197-203 ; Ellis on Insurance 81-87, where all the cases are collected. They relied chiefly on Eeeds v. Cheetham, 1 Sim. 146 ; Noble v. Cass, 2 Sim. 343; 2 Condens. Eng. Ch. Rep. 74, 447. In the case of Parry v. Ashley, 3 Sim. 97, 5 Condens. Eng. Ch. Rep. 31, it was held, that the insurance money due for the loss of a house on which an annuity was charged, stood in the place of the house as a security to the annuitant; but the court impounded the money, and would not permit it to be paid to the owner of the fee, though she asked it with a declared purpose to apply it to rebuild the house. They said, a testator holding a policy of insurance of a house might by his will annex it to the land, and appropriate the insurance money in case of loss to the purpose of rebuilding; or the money might be destined to reinstate the property, by the express contract of the parties to the policy of assurance; and by the statute 14 Geo. 3, ch. 78, the insurance money due on policies of insurance in London, must be applied to rebuilding : but independently of express appropriation by will or contract or statute, there was no general *rule of equity that required the insurance money to be appropriated to rebuilding, for the benefit of lessee or landlord, tenant for life or remainderman. To hold that Haxall and wife had a right to apply the insurance money to the building of a new house, and by so expending it, to exempt themselves from accountability to the devi-sees in remainder for the money, would be, in effect, to recognize a right in a tenant for life of personal property, to convert the remainder expectant on the life estate into real property without the concurrence of the remainderman ; and, in the present instance, to work a material change in the rights of the parties; since if the fund remained unconverted, the husbands of the devisees in remainder, upon their marriage, acquired marital rights in so much personal property of their wives, whereas if converted, they could only acquire marital rights in their real property. 3. Taking the subject to be personal property, when the devisees of the remainder married, their husbands respectively acquired inchoate rights in it, which would become absolute, in the event that they and their wives survived the tenant for life, and then reduced it into possession, in which case the husbands would be entitled to it jure mariti, or in the event of the husbands surviving the wives, in which case they would be entitled to recover it as administrators of their wives, and then to hold it as their own property. Therefore, the debt due from Haxall and wife for the money in question was not, in the event which has actually occurred, a debt due to mrs. Shippen and mrs. Gilliam, but a debt due to their husbands Then, surely, no gift of real estate made by the stepfather and the mother to the wives could be a satisfaction of the claims of the husbands. And 4. it was only necessary to advert to the true state of the rights of the parties in the subject, to ascertain, that the claim to have the actual value of the new house as it stood at mrs. Haxall’s death discounted *from the debt, was untenable. The state of the case as to this point, was simply this : Haxall and his wife put valuable improvements on land of which she was tenant for life, and those improvements devolved, along with the land, at her death, to her daughters, who were entitled to the remainder in fee, and who, at the time the remainder fell in, were married women. Their husbands could not, on any principle, be held to make compensation, out of their own money, for improvements voluntarily put on the real estate of their wives. Now, the money in question was the money, the absolute property, of the husbands, though they acquired it by their marriage. The dev-isees' in remainder were nowise bound to give warning to Haxall and wife, that if they expended the insurance money in rebuilding, the money would nevertheless be demanded after mrs. Haxall’s death: the decree of June 1814 gave them full warning. The remaindermen had no right to object to the application which was made of the money, or to any other application that might have been made of it; the payment of the money to them when their right should accrue was secured, and that was all they had a right to ask.
    
      
      Fire Insurance — Rights of Life Tenant and Remain-dermen in Insurance Money. — In Brough v. Higgins, 2 Gratt. 410, it was held that, where a building insured, in which one person is entitled to a life estate and another to the reversion, sustains a partial iniury from fire, for which indemnity is due from the insurers, both the life tenant and the reversioner are entitled to have the insurance money applied to the repair of the building. The court draws a distinction between the case where there is a total destruction of the property and the case where the property sustains only a partial injury. In speaking of the principal case, the court said: “In the case of Haxall’s Ex’ors v. Shippen, 10 Leigh 536, the court decided, and that decision is, in my opinion, a governing authority, that where the title in an insured building is in a tenant for life and a reversioner, and the building is entirely destroyed, the property is in effect converted to personalty, and the parties have the like interest in the insurance money that they had in the building : that is, the tenant tor life is entitled to the use of it for life, and the reversioner to the principal at the death of the tenant for life. And that the tenant for life cannot, by applying the money to the rebuilding of the house, defeat the reversioner’s title to have the money on the termination of the life estate; nor has the reversioner a right to require the tenant for life to apply the money to the rebuilding of the house. This decision has been applied by the court below to the case now in judgment; and if the cases be not distinguishable, the decree of the court below must be affirmed. To my perception, the distinction between the cases is not only visible, but broad and well defined.” See generally, monographic note on “Insurance, Fire and Marine” appended to Mutual, etc., Soc. v. Holt, 29 Gratt. 612.
    
   TUCKER, P.

Upon mature consideration of this case, and of the very able argument on both sides, I regret to be compelled to give my judgment in favour of the appellees : 1 regret it because it is certainly a case of some hardship on the appellants, and those for whom their testator was the surety, since the appellees, by this decision, will get both the newly erected building and the whole of the insurance money which was paid for that which was consumed.

At the very first step in this investigation, we are met by the decree of June 1814. That decree I consider as conclusive of the rights of the parties to it, and,- whether right or wrong, decisive of the questions *now again brought before the court. The bill filed by Haxall and wife sets forth the burning of the mansion house, their purpose to rebuild it with the insurance money, and the refusal of the Mutual Assurance Society to pay it to them, and prays a decree that the money should be paid to them for that purpose. The decree simply orders a payment of the whole insurahce money to the plaintiffs, declaring mrs. Haxall’s right “to the use of the money in like manner as she would have been entitled to the use of the house itself that is, tu the uncontrolled use of it (the money) during her life, but to be paid over to those in remainder at her death. It gave no authority to rebuild at the charge of the daughters, nor did it limit the life owner in the manner of using the fund. She had the absolute use of it during her life, and was not bound or required to use it in rebuilding. It might have been employed in trade or speculation, and the parties in remainder could not, after that decree, have arrested such an employment of the capital. All their right was to have it returned at the expiration of the life estate. Such was obviously the effect of the decree ; and, accordingly, the plaintiffs were required to give bond, before they should have the benefit of it, to the two daughters for the payment of the principal money immediately upon the death of the mother. The plaintiffs seem to have hesitated. The court had disapproved the idea of the assurers, which confined mrs. Haxall to the interest, since in that mode she did not enjoy the money as she was entitled to enjoy the house. The use of the money was not necessarily measured by ’the interest, and, therefore, the money itself was decreed to her and her husband for her life, the repayment being secured by bond ; and thus she would truly enjoy the money as she would have enjoyed the use of the house. Yet for nearly two years the plaintiffs delayed giving the bond. At length, they did give it, conformably to the decree, *which after such a lapse of time must have been well understood, and by entering into the obligation under it, they assented to, ratified and confirmed it, and made themselves absolutely debtors to the devisees in remainder for the whole insurance money at the mother’s death. Had the chancellor designed to sanction the rebuilding at the children’s expense, the decree and the bond would have been in the alternative, either to rebuild, or, on failure to do so, then to refund. But the decree is absolute, that they shall have the use of the money for life, and that the daughters shall have the money at the mother’s death. This decree is unassailable. The plaintiffs, having acquiesced in it, and indeed acted under it, cannot gainsay it, or vacate, or modify, the bond given under it. To say that the daughters shall not have the money, but shall have the buildings in satisfaction of it, is to contradict the bond. To contradict the bond, which follows the decree, is to controvert the decree ; and this cannot now be done even by appeal, and much less when thus assailed collaterally only. That decree, therefore, I conceive, is conclusive upon the question of the plaintiffs’ claim to have the money for the purpose of rebuilding at the joint charge of the life owner and those in remainder.

I am, however, clearly of opinion, that that decree was right. Conceding that the covenant of assurance, being with the cov-enantee, his heirs and assigns, enured to the benefit of all who had any title in the premises, in proportion to their respective interests ; conceding that the tenant for life is not chargeable for waste and for the value of the building, according to the doctrines anterior to the statute 6 Ann. ch. 31, 1 Wms. Saund. 323b, 7 Bac. Abr. Waste. C; p. 2S6, and waiving the question how their respective proportions are to be ascertained ; still it is obvious, that the tenant for life could have no superior right over those in remainder, to the disposition of the insurance money. Unless *there was an equity, as is contended, that the money paid for the building that was burned should go to rebuild it, as that was the purpose for which it was destined (a question to be presently examined), it seems undeniable, that mrs. Haxall could have no right to insist, that a fund in which her daughters were equally interested, should be invested in any manner without their assent or against their wishes. Being entitled to its use for life, indeed, she might have used it during life as she pleased, but she could have no right so to use it as to affect or impair their right to the use of the money itself after her death. Unless all therefore concurred in this conversion of personalty into realty, neither could so convert it. There was, then, no power in Haxall and wife to make the conversion without the assent of the daughters. But they were infants and could not assent. Moreover, Shippen’s marriage, at least, was prior to the rebuilding. Immediately upon his marriage, his marital rights to a moiety of this fund as money attached. It was, indeed, but a chose in action ; but still it would become his, upon his reducing it into possession, and it has now become absolutely his by the judgment upon the bond, which he may enforce in his own right and not as administrator of his wife. What right, then, had the tena.nt for life, without his assent, to convert this money, which would belong to him as personalty, into real estate to which he would have no title whatever, unless he had a child, and then only the title of a tenant by the curtesy ? The law recognizes no such power in one person, to dispose of and change and annihilate the rights of others. And here, if the fund continues money, Shippen is entitled to four or five thousand dollars; but if the conversion of the money into land is recognized, he may not have title to any thing; for non constat that he would be even tenant by the cur-tesy.

*That I have not assumed too much in asserting the husband’s right to the insurance money, may be safely affirmed. Though it be a covenant real for upholding the estate, yet if the insurers refuse payment, the action against them is for damages, and damages only can be recovered. It is truly said by vicechancellor Leach in Noble v. Cass, that with respect to injuries to land for which damages are to be recovered in a personal action, the person who brings the action is entitled to the damages; and, accordingly, he held, that the damages recovered for a breach of a covenant running with the land belonged to the person who recovered them, and are not to be considered as a part of the inheritance. Now on this covenant of insurance, the wife could not sue alone. Her husband must join even in actions relating to her real property ; 1 Bac. Abr. Baron and Feme, K. p. 499 ; 1 Chitt. Plead. 17, and if he recovers damages, they at once become his absolutely ; he puts them in his own pocket without accountability to any. This occurs in various instances, seemingly of the greatest hardship. It happens even in those cases where the damages which thus become his, are retribution for realty which never could have become his, and where the apparent relation between the damages and the reparation of the estate would seem plain and palpable. Thus, if he sues upon a covenant of seisin, in which the value of the estate may be the measure of damages, those damages are not applied to purchase a new estate for the wife, but they become his own. The wife loses her real estate, and the husband pockets its value. So, in an action on a covenant for quiet enjoyment, or of warranty, or for renewal of a lease, the wife’s retribution for her real estate goes into her husband’s hands. So in action on a covenant to repair or to rebuild, the damages assessed must be adequate to repairing or rebuilding *the premises, Shortridge v. Lamplugh, Ld. Raym. 798, yet these damages the husband recovers, and there is no equity to compel him to lay out the money in repairing or rebuilding his wife’s houses. “A court of equity” (says the vicechancellor, in Noble v. Cass), “ never holds that damages are any thing but the personal estate of the person who recovers them, and I should be introducing a new equity if I were to hold the damages recovered for breach of covenant running with the land, to be a part of the inheritance.”

Upon these principles then, this court must consider the iponey due by the insurance society, for which the decree was rendered in June 1814, as a chose in action, which Ship-pen became entitled to on his marriage, and which upon the death of the widow he would have been entitled to demand by suit, if its payment had not been secured by bond. Upon these principles too, the court in 1814 was right in considering this money as personal estate of the infants, and to be secured to them as such. The bond by which it was secured became, as to a moiety, the property of Shippen, as soon as he married, and he has since made it absolutely his own by recovering a judgment upon it. The other moiety, in like manner, belonged to Gilliam,

In this view of the case, it is manifest that the tenant for life could not lawfully deprive the appellee Shippen of his marital right to sue for this money to which, when recovered, hé would have absolute right) by converting it into realty, to which he would have no title. And this furnishes a sufficient answer to the idea, that the case resembles the payment of a debt by a gift or legacy : for, in those cases, the gift or legacy may not only be rejected by the party, but it goes to him who is in fact the creditor. But here, the supposed gift of the buildings is to the owners of the realty, instead of the husbands who are entitled to the money. The gift, therefore, does not enure to the owners of the debt.

*Unless, therefore, it can be shewn that the insurance money ought to be applied to the purpose for which it is said to be destined, there would seem to be little foundation for the pretensions of the ap-pellees. Let us then enquire how stands the law in this regard. The position seems to me to be a misapprehension of the law of insurances against fire. In the case of Vivian v. Champion, 1 Salk. 141, 2 Ld. Raym. 1125, lord Holt indeed observed, in relation to damages recovered from a tenant for 99 years on a covenant to repair, that the damages should be sufficient to put the premises in repair, and the plaintiff ought in justice to apply them to that purpose. How he was to be compelled to do so, and whether the obligation was to be held to be perfect or imperfect, does not appear. But admitting it to be perfect, there are strong reasons for compelling such an application of the money in the case of a tenant who is bound for rent to his landlord, and who seems therefore equitably entitled to have the benefit of the damages to put the property in the stipulated state of repair. But as to policies of insurance, they are considered as distinct, independent contracts between the insurers and the insured. If the covenant does not name the heirs, the executors of the insured, and not the heirs, will be entitled to the proceeds of the policy, and those proceeds will go to pay debts, instead of being applied to rebuild houses; Ellis on Insurance, 84, S. “As a general rule,” says mr. Hovenden in his note on Mildmay v. Folgham, 1 Hovend. Supp. 305, “policies of insurance are not attached to the realty, nor do they in any manner go with the same as incident thereto, by any conveyance or assignmentciting Lynch v. Daizell, 4 Bro. P. C. 431. Accordingly, in the case of Mildmay v. Folgham, 3 Ves. 471, where the policy was made payable to the insured, her executors, administrators and assigns, the lord chancellor refused to make the executor a trustee for the heir. Where however, as in *our insurances, the policy binds the insurers to pay to the insured, his heirs &c. the policy must be considered, I conceive, as a covenant real, of which the heir, and not the executor, must have the benefit. Still it does not follow, that when the money is paid to the heir, he is.bound to lay it out in rebuilding: and if, as usually happens, there are several heirs, it is not perceived that either has a right to insist that the others shall unite with him in rebuilding the premises. The insurance is a compensation for a loss, and when that com- . pensation is paid, it is money in the hands of the assured, of which they may dispose at pleasure. The law of contribution has no application to the case. That law has strict application, indeed, where property held in common needs repair: for there, it is in existence, and each has a right to keep it in existence, and to make all essential repairs at the joint expense of all. But where the buildings on an estate are destroyed, the question is one, not of repair of what exists and is held in common, but of building out and out. And as one tenant in common cannot compel another to build on their vacant lot, however it may be to their advantage, so one heir cannot compel the others to rebuild a house that has been destroyed. Still less can the tenant for life; for between him and the remainderman there is no community of interest. On the contrary, their interests are conflicting; for if the remain-derman is compelled to spend his money in rebuilding, peradventure the life owner may live till it falls into decay and becomes useless ; or it may again be consumed by fire, and then he will have no retribution. Accordingly, as between tenant and landlord, the landlord who receives insurance money cannot be compelled to rebuild, nor indeed is he even compellable to repair, but that duty, to a certain extent, rests upon the tenant. See Ellis on Ins. 82; Leeds v. Cheetham, 1 Sim. 146. In the case at bar, it must be conceded, that however ruinous the ^buildings might have become, the tenant for life could have demanded no aid for repairs, but would have been bound at her own expense to keep the property in repair. By what right, then, could she demand that the devisees in remainder should expend their funds in rebuilding the premises out and out ? And a fortiori, by what right could she demand, after the marital rights attached, that the husband should expend what had become his funds, in rebuilding a house which never might become his ?

Much reliance was placed on the case of Norris v. Harrison, 2 Madd. Ch. Rep. 268. The various reasons for that decision are so thrown together by vicechancellor Plumer, that it is difficult to extract any distinct principle applicable to this case from his opinion. There are some expressions which seem to indicate the idea, that the insurance money ought of right to be employed in rebuilding, and the court repelled the claim of the re-mainderman to that portion of it which had been so employed, since it had been “ laid out on the estate for the very purpose to which it was originally destined.” Yet, in deciding upon the right to the unexpended balance of the insurance fund, he rests so strongly on the intention of the testator W. Bell’s will, as to induce the belief that upon that intention depended the character of the fund, as real or personal. I think, however, upon the whole, that there is sufficient evidence that the vicechancellor did look upon the fund as one properly devoted to rebuilding the premises, or to the erection of some other equivalent building on the estate. But in the subsequent case of Noble v. Cass, vicechan-cellor Leach did not consider his predecessor as settling any such general principle, but as deciding the case upon the acts of the party and the particular expressions in the will. If the case of Norris v. Harrison does determine that the insurance money must be applied to rebuilding the premises, *then I can only say that I cannot acquiesce in any such opinion. The covenant does indeed run with the land, and enure to the benefit of all who have title to the estate, according to their respective interests. But the damages (or insurance money) when recovered, are not to be considered as part of the inheritance. They are a sum in gross, belonging to the parties according to their respective interests. There is no authority for the principle, that an equity attaches to the damages recovered at law, to give them the particular destination of rebuilding the premises for the loss of which they were recovered. Such a doctrine would be unreasonable and difficult of execution ; unreasonable, because it might well be to the interest of the reversioner that the houses should not be rebuilt, either because of the depreciation of the property or for other causes ; difficult of execution, because one party might oppose a rebuilding according to the former fashion, and the other insist upon it, and, in case of difference, the court must interfere to settle and adjust these vexatious disputes, involving petty details, embarrassing and unworthy of .the tribunals of justice.

The notion, indeed, of an equity attaching to the insurance money, is wholly without foundation. There is no covenant even of the society to rebuild : it has no right to rebuild: it must pay the amount of the policy : and when so paid to the insured himself, he may do as he pleases with the money. There is nothing- to bind him to rebuild. And if he gives the property to A. for life, remainder to B. he does not give to either any right to demand the concurrence of the other in rebuilding the premises. As assignees, each has a right to benefit in the covenant proportioned to his interest, and each has his distinct action at law. Attersoll v. Stevens, 1 Taunt. 183. Perhaps there is no method better adapted to effect the ends of justice, than, through a court of equity, to decree the whole money *to the tenant for life for his use during life, taking care to secure repayment to the re-mainderman upon the tenant’s death. This is the course which the chancellor pursued in 1814, and which, upon the whole, I think is to be approved.

It remains but to say, that I think the tenants for life cannot be sustained in their gratuitous act, by the allegation that the parties stood by and did not warn them against proceeding. It has been well said, that the decree itself was a warning ; the bond was a warning ; and non constat, that notice was ever given to those in remainder, that an attempt would be made to charge them. They had no right or reason to suppose, after that decree, and while they held the absolute bond for repayment, that the tenants for life were building at their charge. They had therefore no reason for interfering with the proceeding; for if the tenants chose to rebuild at their own expense, there was no one who could gainsay it.

BROOKEJ and CABíOWLí, J., concurred.

STANARD, J., said, he entirely concurred with the president, in the general principles stated in his opinion, but he doubted, whether, considering the circumstances of the particular case, the actual value of the new house put on the premises, as it stood at the time of mrs. Haxall’s death, ought not to be allowed to the appellants, and set off against the debt. He inclined to the opinion, that, to this extent, the appellants were entitled to relief.

Decree affirmed.  