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Appeal from supreme court, general term, One ground upon which the defendant's third department.

motion for a nonsuit was rested is again urged This action was brought by William D. as a reason for reversal. It is that a condiJones, as assignee of Robert T. Matheson, tion precedent to a recovery was violated, in upon a policy of fire insurance issued by the that lamps were filled with kerosene in the Howard Insurance Company of New York. evenings, and by artificial light. The clause This policy was for $1,000, and covered a in the policy cited in support of the objection stock of clothing, etc., owned by Matheson, goes no further than to free the insurer from and situated in the village of Granville. On any loss or damage arising from that cause. Febrnary 1, 1884, the goods, together with The language is: “This company will not be all books of account, invoices, bilis, state- liable under or by virtue of this policy for ments, etc., were consumed by fire, with the loss or damage caused by the working of mebuilding in which they were situated. The chanics,

nor for the use of kerovalue of the property destroyed was about sene,

* unless permitted hereon in $7,500, and the total insurance was $5,000; writing.” The meaning evidently is that $4,000 being held by other companies. No- for a loss resulting from the use of kerosene, tice of the loss was at once given to the de- except in the manner specified, the insurer fendant's local agent. On February 6, 1884, will not be liable. It did not appear that the Matheson assigned all his property to plain- fire and consequent loss had any such origin. tjff for the benefit of his creditors; and the It is objected that the assured made no dilassignment, with plaintiff's acceptance, was igent effort to save his property, as required duly filed in the clerk's office. The assignee by the terms of the policy. That instrument, filed his bond, and entered upon his duties. again, only relieves the company from liabilMatheson's claims for insurance were part of ity for damage resulting from such neglect. the property assigned. Proofs of loss were Whether the assured, in truth, disobeyed the made by Matheson, and forwarded to the requirement; whether it was reasonably poscompany, February 28th, and were received sible for him to have done more than he did by defendant, February 29th. To show the in his endeavor to put out the fire; whether, value of the goods destroyed, Matheson pro- by any risk or effort, he could have saved cured, as far as possible, duplicates of the anything after he was driven from the buildoriginal bills and invoices, and the result ing by the flames; and so whether any part thus obtained was checked by comparison of the loss was due to his neglect,- were with the amount of an inventory made in questions of fact upon the evidence, and must January, 1884. No exception or objection be deemed to have been answered in his fawas made by defendant to the proofs, either vor by the verdict against the defendant. as to form or sufficiency, until April 14, 1884, The further objections cluster about the when, having had them 45 days in its posses- proofs of loss. The policy requires such a pasion, a letter was written to Matheson, by its per to be furnished, and specifies what it shall general agent, objecting to the proofs on ac- contain. The assured gave, in substance, all count of various alleged defects therein spec- the information required by the terms of the ified. The proofs were never returned to policy. The defendant company received the Matheson by defendant, nor did it ever re-proofs, and kept them in its possession withquest any other or further proof. The plain-out objection for 45 days; and then, without tiff and Matheson subsequently presented returning them, wrote a letter to the insured, themselves at the defendant's office in New claiming that they were defective and insufYork, with their bills and vouchers, and of- ficient, and subject to his order. fered to submit to any examination defend- A review of the objections made will show ant desired, or to arrange a day for such ex. that some of them were frivolous, and none amination, but the defendant refused to act of them sound. Thus, it was objected that in the matter. The defendant refused to pay “the interest or title of the assured and others the amount of insurance, and on October 16, in the property alleged to have been destroyed 1884, this action was begun. Judgment was is not correctly or fully stated.” At the time rendered for plaintiff, and defendant's mo- of the fire. the assured was sole owner. Five tion for new trial was denied. The judg- days after the fire, he made a general assignment was affirmed by the general term, and ment for the benefit of his creditors to the defendant appeals. The issues in the case present plaintiff. Some 20 days later, he sufficiently appear in the opinion.

signed the proofs of loss, which were sent to Norton Chase, for appellant. J. M. Whit- the company, and the demand of the assignee man, for respondent.

for payment has been refused. In the proofs

of loss it was stated that the assured at the FINCH, J. This action was upon a policy time of the fire was sole owner. The policy of insurance against loss by fire, and was de- requires that “the assured, sustaining loss or fended mainly on the ground that the assured damage by fire, and making claim therefor, himself was the incendiary. The issue of shall * * render a particular account fact thus raised was decided in his favor, and of said loss,

stating * * * there remained only certain technical de- the interest and title of the assured, and of fenses, which have thus far been overruled, all others, therein." This evidently refers and which furnish the questions on this ap- to the time of the loss, and the state of the peal.

title at tliat date. The objection made to

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the proofs of loss was not that the ownership eral agent writes, demanding presentation of of the claim against the company was not books and vouchers, and an examination "at stated, but that “the title of the assured and such time as can be mutually arranged." The uthers in the property alleged to have been demand came too late, and was of no force or destroyed is not correctly or fully stated.” consequence, because it fixed no time. It The objection is frivolous. The title of the arbitrarily assumed the right to delay a set- . assured in the property destroyed was stated, tlement until such unknown time in the futand both correctly and fully. Nowhere was ure as should suit the will and pleasure of he required to show who owned his right of the officers of the company in making a mutaction for the loss, and there is not the least ual arrangement. What right they had was pretense that the company were ignorant of lost by the unexcused delay, and the failure or in doubt about that.

to make the demand in such form that it It is objected, again, that “the statements could be promptly and definitely obeyed. of the cash value of the property destroyed This treatment of the assured had about it no are contradictory and inaccurate." They element of fairness or justice. In addition, were not contradictory. One sum was named it appears that the general agent had already as the actual cash value, and no other. There examined the assured in such manner and to was, indeed, an explanation of the manner in such extent as he chose. which the assured arrived at his estimate; The final objection urged is that the proofs and that, intended to confirm, may rather of loss did not contain copies of the written have contradicted, his statement of actual portion of other policies. The proofs named cash value. Whether it was inaccurate or the other policies, specified the insurers, and not, however, was a question of fact for the amounts of the risks, described them as covjury, which they have determined in the ering the same property, and as “concurrent plaintiff's favor.

with the one herein described." The written It is again objected that the origin of the portions of that were given. I think this fire was not correctly stated. The proofs de- was a substantial performance of the condiclared that the cause of the fire was to the tion; but, if not, the objection was waived assured unknown. That was a correct and by the delay. The proofs of loss were persufficient statement, unless be lighted the fire fect in every other respect, and there is not a himself; and the jury have said that he did shadow of excuse for waiting 45 days to de-, not.

mand a more perfect performance, by giving It is urged against the recovery that the formal copies of other policies. Keeney v. certificate of the nearest notary was not ob- Insurance Co., 71 N. Y. 396. We are thus tained. There was one about 20 feet nearer of opinion that no ground exists for a rethe location of the burned building, but who versal. The judgment should be affirmed, was himself a sufferer from the same fire, with costs. All concur. and so concerned in the inquiry whether the assured was the incendiary, or the fire an ac

(117 N. Y. 95) cident. The policy does not call for such a

KEARNEY 0. CRUIKSHANK.1 certificate unless “if required.” No such requisition had been made when the proofs of (Court of Appeals of New York. Oct. 29, 1889.) loss were sent, and the certificate attached

A PPORTIONMENT OF ANNUITY. was simply superfluous. The objection made When an annuity is granted by a will made was not a requirement. It was a claim that before Act N. Y. 1875, c. 542, making annuities

created by instruments made after the passage of the proofs were not sufficient because a cer- the act apportionable, but no time is fixed for the tificate of the nearest notary, “as provided payment thereof, it is payable annually after the by the conditions of the policy," had not been death of testator, and is not apportionable, and on furnished. No condition was violated until tives are not entitled to a proportionate part of

the death of the annuitant his legal representathe insurer, after the loss, formally required such annuity for the time elapsed since the last the certificate to be furnished, which never annual payment. was done.

Appeal from supreme court, general term, A further objection is that another.condi- first department. tion precedent to recovery was violated, in This action was brought by. Alfarata Kearthat the company was never furnished with ney, as administratrix of the estate of Sarah original or certified copies of bills or invoices Louisa Reed, deceased, against Augustus of the property destroyed. The policy puts Cruikshank, trustee, to recover a proportionthat burden on the assured only in case he is ate share of an annuity granted said deceased so required to do by some person appointed by the will of Benjamin Lord. The cause by the company. No such requirement was was submitted to the general term upon an made until some time in June, long after the agreed statement of facts, and judgment renproofs of loss had been rejected, and about four dered for plaintiff. Defendant appeals. months after the fire. Before that demand,

James L. Bishop, for appellant. John the assured and his assignee presented them- Graham, for respondent. selves at the office of the company in New York, with all the bills and invoices they could obtain, to submit to their examination. this case arises upon the claim of the repre.

ANDREWS, J. The question involved in The president somewhat curtly dismissed Libem; and thereafter, on June 18th, the gen. 1 Reversing 46 Hun, 219.

sentative of Sarah Louisa Reed for the ap- were not apportionable in respect of time. portionment of an annuity given to her by This rule, it has been said, “proceeds upon the will of Benjamin Lord. The testator the interpretation of the contract by which died July 5, 1851. By his will, after provid- the grantor binds himself to pay a certain ing for the payment of his debts and funeral sum, at fixed days, during the life of the anexpenses, he directed his executors to take nuitant, and when the latter dies, such day possession of his real and personal estate, re- not having arrived, the former is discharged ceive the rents, interest, dividends, and in- from his obligation.” Luml. Ann. 291. It come thcreof, and out of the same to keep resulted from the general rule that if the anthe real estate in repair, and pay the charges nuitant died before, or even on, the day of thereon, and keep the personal estate invest- payment, his representatives could claim no ed, and pay over the net income of the store, portion of the annuity for the current year. No. 147 Cedar street, in the city of New York, We refer to some authorities on the general to one Mary Van Veghten, and “out of the subject: Ex parte Smyth, 1 Swanst. 337, residue and remainder of said net income of note; Pearly v. Smith, 3 Atk. 260; Irving v. my estate to pay to Sarah Louisa Reed, wife Rankine, 13 Hun, 147, ailirmed, 79 N. Y. 636; of David L. Reed, of the city of New York, Wiggin v. Swett, 6 Metc. 194; 3 Kent, Comm. it being my intention as a daughter to adopt 470; 1 Williams, Ex’rs, 835; Hayes & J. her, the suin of two thousand dollars a year Wills, 172, note. In England, statutes have during her natural life, on her sole and sep- been enacted from time to time changing the arate receipt, as if she were a feme sole, free harsh and rigorous rule of the common law. from the control, interference, or debts of The statute, 4 & 5 Wm. IV. c. 22, was the her present or any future husband.” The first statute making annuities apportionable testator then directed that the residue and in respect of time. In construing this statremainder of the net income should be paid ute some of the courts held that the statute over and divided among his brothers and covered continuing annuities only; that is, sisters, and that on the death of Mary Van annuities not terminating with the life of the Veghten the store, 147 Cedar street, should first taker. Reg. v. Lords of the Treasury, be sold, and the proceeds divided among his 16 Q. B. 357; Lowndes v. Earl of Stamford, brothers and sisters and one Lavina Knapp, 18 Q. B. 425. This led to the enactment of and that on the death of Sarah Louisa Reed the comprehensive statute, 33 & 34 Vict. c. the “whole of the rest, residue, and remain- 35, which made all annuities apportionable, der of my estate, both real and personal,” and declared that annuities should, “like inshould be divided between the same persons. terest on money lent, be considered as accruThe annuity to Mrs. Reed was paid to her ing from day to day, and shall be apportionannually, on the 5th day of July in each able in respect of time accordingly.” There year, after the death of the testator, up to and can be no doubt that in a case like the presincluding the year ending July 5, 1885. The ent one, arising in England after the passage annuitant died June 7, 1886, and her admin- of these statutes, it would be held that the anistratrix demanded from the defendant, trus- nuity was apportionable. But no statute was tee of the estate of Benjamin Loril, payment enacted in this state changing the rule of the of a proportionate part of the annuity from common law, and making annuities apportionJuly 5, 1885, the date of the last payment, to abl", until the passage of the act, chapter 542, June 7, 1886, the day of her death, which Laws 1875; and as this statute, hy its terms, was refused on the ground that the annuity only applies to annuities created by instrufor the year was not due and payable until ments executed after the passage of the act, July 5, 1886, and was not apportionable. and, in case of wills, where the will takes effect

We are not at liberty to decide the ques- thereafter, it does not affect the question in tion in this case upon our notions of natural this case. There (an be no doubt that if the equity or justice, provided the settled rule of testator had in his will directed that the annuilaw fixes the rights of the respective parties ty of Mrs. Reed should be payable at the end and determines the question presented. At of each year after his death, or in quarterly or common law, annuities were not apportion- half-yearly payments, or, in other words, if he able, subject, however, to two exceptions, had in terms fixed the day of payment, the viz., where given by a parent to an infant claim of the representative of Mrs. Reed, that child, (Hay v. Palmer, 2 P. Wms. 501; Rey- he was entitled to an apportionment, would, nish v. Martin, 3 Atk. 330,) or by a husband upon the settled rule of the common law, be to his wife living separate and apart from rejected. The case of Irving v. Rankine, him, (Howell v. Hanforth, 2 W. Bl. 1016.) supra, is a precise authority that the rule of These exceptions were founded on reasons of the common law was, prior to the act of necessity, and the presumption that such an- 1875, the law of this state, and that an annuities are intended for maintenance, and are nuity payable by the terms of a will on a given in view of the legal obligation of a par- fixed day was not apportionable. The rule ent to support his infant children, and of a was applied in that case to an annuity given husband to maintain the wife. But with to the wife of the testator, payable semi-anthese 'exceptions it was the uniform and un-nually from his decease, who died eight days bending rule of the common law, recognized before the semi-annual payment became dne. both by courts of law and equity, that annui- The learned counsel for the plaintiff insists ties, whether created inter vivos or by will, that the common-law rule of the non-apportionability of annuities only applied where | vice-chancellor, referring to the act, said: the day of payment was specifically fixed in “It is obvious that that is the very case now the instrument creating it, and had no appli- before the court, namely, that of an annuity çation to the case of an annuity given in gen- for life, in which, unless the annuity had eral terms, as in this case, no day of pay- been declared to be apportionable, it would ment being specified. It is quite difficult to not have been so previously to this act.” see any ground for the alleged distinction. The rigid force of the rule that the conThe ordinary and natural meaning of a di-struction, in the absence of a time fixed in rection by one person to pay to another a the will, is that an annuity becomes due and specified sum “annually,” or “each year,” is payable only at the expiration of a year, and that the specified sum is to be paid in an an- thereafter year by year, is illustrated by the nual or yearly payment. The word or phrase, cases of Irvin v. Ironmonger, 2 Russ. & M. naturally interpreted, would be regarded as 531, and Hawley v. Cutts, Freem. Ch. 24. fixing both the measure and time of pay- In Irvin v. Ironmonger the testator gave an ment. It would, we think, be contrary to annuity for life, and directed that the first the well-understood meaning and character- year's annuity should be paid within one istics of an annuity, and to the settled rule month from his death, and it was held that, that in the absence of a different direction in though the first year's payment was to be the will or instrument creating an annuity it made at the appointed time, the payment of is payable annually or yearly, at tije end of the second year did not become due until the year, to restrict the application of the the end of that year. In Hawley v. Cutts common-law rule of non-apportionability of an the testator gave an annuity of £100 per annuity to cases where the date of payment annum, and the chancellor denied an appliis explicitly declared in the instrument creat- cation to direct that payment should be made ing it. The term "annuity” has been vari- quarterly, saying that he wouid not alter ously defined, but the definitions, although the payment otherwise than it was in the differing in form, are substantially alike in will. We perceive no indication on the face meaning. In general terms, it is “a yearly of the will in question taking the case out payment of a certain sum of money grant of the general rule. The testator might uned to another in fee, for life, or for years.” doubtedly have directed that the annuity to 2 Williams, Ex’rs, 809. See, also, Lum. Mrs. Reed should be apportionable, and if Ann. 1; Bac. Abr. tit. “Annuity.” It has there was no express direction, if the intenlong been the settled rule that in case of a tion to make it apportionable was inferable will, if no time is fixed, an annuity given from any provision of the will, that intenthereby commences from the day of the tes- tion would prevail. The fact that the rents tator's death, and the first payment is to be of his real estate would, in the ordinary made at the end of 12 months from that time. course, be collected quarterly, or at different 2 Williams, Ex’rs, 1288; Gibson v. Bott, 7 periods within the year, or that the annuity Ves. 89; Houghton v. Franklin, 1 Sim. & S. is directed to be paid out of the income 392. This accords with the definition of an of the estate, are, we think, insufficient annuity, its inherent character, and the lan- grounds for a construction in opposition to guage of the testator as naturally construed. the general rule. The annuity is charged We have no case where the distinction is upon the net income of the whole estate of made that where no time is expressly fixed the testator, both real and personal, excludby the wili for the payment of an annuity iting the rents of 147 Cedar street. The ingrows due like interest de die in diem, and, come is not given as such, but a specified in case of the death of the annuitant within amount out of the income equal to the annuthe year, is apportionable. The authorities ity. The executors are required to first pay are opposed to this view. In Carter v. Tag- out of the income charges and repairs on the gart, 16 Sim. 447, a testator directed a fund real estate, and the amount required for these to be formed for the purchase of bank annu- purposes must have been first ascertained beities, and charged them with the payment of fore it could have been known whether the £150 a year to his wife during her life. The net income was sufficient to pay the annuity,question was as to the right of apportion- a process naturally requiring a postponement ment, the wife having died during the year. of the payment of the annuity for a period of The will did not fix the time for the pay- time. Striking a yearly balance would have ment of the annuity, except in the general been a usual and natural way of executing terms that the wife was to be paid so much the trust. The circumstances are quite cona year. The court held the annuity appor-sistent with the view that the testator had in tionable, but put its decision expressly upon view an annual payment of the annuity, and the statute, 4 & 5 Wm. IV., changing the it is difficuit to suppose that he intended to common-law rule. Trimmer V. Danby, 23 subject his executors to the embarrassment of Law J. Ch. 979, was the case of an an- being obliged to make up an account of the nuity of £150 to A. B. for life, no time of income whenever called upon within the payment being fixed. The annuitant died year by the annuitant. The whole title to eight days before the end of the year, and it the real and personal estate of the testator was held by KINDERSLEY, V. c., that under vested in the executors, subject to the perthe act of 4 & 5 Wm. IV. the annuity was formance of the trust to receive the rents, apportionable. In deciding the case, the income, and profits, and to distribute the net income as directed. The annuitant was not, served is as to whether such indebtedness as is claimed, an assignee. No title to the should be set off against the entire or only income as such vested in her, but she was Jarvis' share of the legacy to himself and his entitled to enforce the performance of the children. The portions of the will relevant trust in her favor.

thereto provide: "(3) Whereas, two of my The argument that the legislature, when children, namely, said Ellen R. and Jarvis the act of 1875 was passed, must have sup- W., have already obtained loans in anticipaposed that annuities not payable on a fixed tion of what they might hereafter receive in day, by the terms of a will or other instru- the distribution of my estate, and have given ment, were apportionable, for the reason their notes therefor, which I now hold against that the act did not provide for such cases, them, my will is, and I do order, that any even if it proceeds upon a sound construction such notes, if remaining unpaid at the time of the act, does not seem at all conclusive. of my decease, and also any notes given in That the legislature may mistake the scope renewal thereof, or any further loans or ador application of a principle of law in enact- ditional notes, both principal and interest due ing a remedial statute, and leave out some- thereon, be taken as a part of my estate to be thing which ought to be included, is clearly divided; and that in the division thereof, as not inconceivable. But it may very well be hereinafter directed, such notes or loans be concluded, when the question arises, that paid by a set-off betwixt the debt so due to the words in the act of 1875, “made payable my estate and the legacy given from my esor becoming due at fixed periods,” included tate. (4) I order that all my estate, includas well annuities, the time of payment of ing the notes or loans named in the third secwhich is fixed by construction and operation tion, but excluding those itens of personal of law, as annuities of which the time of property mentioned in the first and second payment is designated in the instrument cre- sections, be divided into five equal shares." ating them. We think there is nothing in “(6) One of said shares I order to be distribthe submission which concludes the defend- uted equally between my son Jarvis W. Robant from appealing to this court from the inson and his four children, Gertrude A. Robjudgment below. These views lead to a re- inson, Willard H. Robinson, Edith J. Robinversal of the judgment of the general term, son, Nelly L. Robinson.” “(10) The foregoing and judgment is ordered for the defendant division of my estate I make with equal love on the submission, with cosis. All concur. and affection towards all my children, and,

in view of all circumstances, believing that (150 Mass. 96)

it will operate with substantial justice to all PRICE V. DOUGLASS et al.

of them, and be the best for each and all." (Supreme Judicial Court of Massachusetts.

H. J. Fuller, for petitioner. Morton & Bristol. Nov. 13, 1889.)

Jennings, for Gertrude A. Moore and others. LEGACIES-SET-OFF OF DEBTS.

E. H. & 8. C. Bennett, for Harriet R. DougA testatrix, who had made advances to a lass and others. legatee and his family, both before and after his death, for their support, provided by her will that in the division of her estate such indebtedness be in this case is whether the testatrix intended

KNOWLTON, J. The question which arises paid “by a set off betwixt the debt so due to my estate and the legacy given from my estate;" that that the loans advanced to her children, Elher entire estate, including such loans, be divided len R. Douglass and Jarvis W. Robinson, into five equal shares, each of her five children, should be set off against the respective shares and their respective children, to receive one share, and such division “I make with equal love and af of the estate to be distributed to them and fection towards all my children.” The will was ex- their children, or against the respective porecuted in anticipation of future advances, and at tions of those shares which would come to the time of her death the amount of his loans ex: them alone. There is no single clause in the ceeded $23,000 and his proportion of the legacy to himself and his children could not exceed $8,000. will which determines the question, and we The testatrix set apart specific sums for all her must gather her intention from a consideragrandchildren, except the legatee's children, who tion of all the provisions of the instrument. were to share equally with their father in the leg: acy to them. Held, that such indebtedness should Her household furniture, silver-ware, books, be set off against the entire legacy to the legatee and pictures she divided equally among all and his children, and not merely against his por- her children. She gave her wearing apparel, tion thereof.

jewelry, and china-ware to be divided equally Reserved case from supreme judicial court, among her three daughters. In the third Bristol county.

clause she says that two of her children had Bill by Edward R. Price, administrator of obtained loans in anticipation of what they the estate of Rebecca W. Robinson, deceased, might afterwards receive in the distribution to ascertain the mode of distributing the leg- of her estate, and had given notes therefor, acies under her will. The father of Jarvis and intimates that further loans may be made W. Robinson, and after his death the testa- and additional notes given, and directs that trix, furnished money to him for the support all such loans and notes be taken as a part of of himself and family, and for some time aft- her estate to be divided, and closes by an orer Jarvis' death the testatrix continued to der in these words: “That in the division furnish money for the support of his chil- thereof, as hereinafter directed, such notes dren, which sums remained unpaid at the and loans be paid by a set-off betwixt the time of testatrix's death. The question re-debt so due to my estate and the legacy given

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