83 the war in 1865, except for the time he was in the possession of the plaintiffs' counsel in 1859. And an account *having been taken, commencing the interest and hires from the 1st of January 1858, the court on the 13th of June 1872 made a decree against Moorman in favor of the plaintiffs and Nancy Kelly and Nicholas Kennedy each for a ninth of the amount so ascertained to be due from the defendant Moorman. And thereupon Moorman applied to a judge of this court for an appeal; which was allowed. Mosby & Brown and Ould & Carrington, for the appellant. J. H. Lewis, for the appellees. STAPLES, J., delivered the opinion of the court. The court is of opinion that the appellant and the appellees were tenants in common of the slaves in controversy, the appellant being the owner of six interests in remainder, and the appellees of three interests in remainder, and the appellant being also entitled to an estate for the life of Mrs. Susanna Alfred in the same slaves. The sale of the woman Elizabeth, and her two children by the appellant, although intended to pass the fee, could only operate to confer such title as he himself had. It may be that the appellant made said sale in good faith, supposing his title to all the interests in remainder unexceptionable; but the mistake into which he was led by his vendor could not impair the rights of his co-defendants, or in any manner affect his obligations to them. By the sale the property was placed beyond the reach of the appellees. They could not obtain possession of it at the death of the lifetenant, nor pursue their remedies against the person in possession; nor could 84 the appellant produce the slaves for partition, or for sale and division of the proceeds among those entitled. Under the circumstances his sale must be considered as a conversion of the property, with all the liabilities consequent upon such an act. The appellant was therefore liable to the appellees for the value of the three interests to which they were entitled in remainder. The court is further of opinion that the circuit court did not err in holding that the appellant, under all the circumstances, shall account for three-ninths of the purchase money received by him under the sale of said slaves. At the date of said sale the woman, Elizabeth, was about twenty-two years of age, and the mother of two infant children; the three were sold for nine hundred and sixty dollars. At the death of the life-tenant in 1857, ten years afterwards, the presumption is, that while the mother did not diminish, the children must have increased in value. There is nothing in the record to rebut this presumption. If, as claimed by the appellant, he is only accountable for the value of the slaves at the death of the life-tenant, it was incumbent upon him to show such value by satisfactory evidence, or to produce the slaves for the benefit of those in remainder. The evidence tends to show that they were still alive in 1857, at the death of Mrs. Alfred, but it does not show in whose possession they were at that time, or at the time of the institution or during the pendency of this suit in the court below; nor does it appear that the appellant made any special effort to obtain information upon these points. Without undertaking therefore now to decide whether in a case such as this the party settling is liable only for the value at the death of the life-tenant, where that value appears, it is suffi85 cient to say that in the absence of proof upon that point the court is bound to adopt the price for which the slaves were sold as the sum with which the appellant is to be charged in his account with his co-tenants. Kean v. Welch, 1 Gratt. 403; Cross' curatrix v. Cross' legatees, 4 Gratt. 257. The court is further of opinion the circuit court did not err in entering a decree against the appellant in favor of Nancy Kelly for one-ninth of the interest in remainder in said slaves, and the proceeds of their hires. It appears that William Kelly, the husband of Nancy Kelly, sold to C. J. Timberlake the wife's interest in remainder, and died leaving the wife and the life-tenant surviving him. The rule is well settled, that where a wife has a vested remainder in personal estate, expectant on the death of a life-tenant, and both the wife and the tenant for life outlive the husband, the wife is entitled by right of ownership to the interest in remainder, not only against the representatives and general assignees of the husband, but even against his particular assignees for valuable consideration. Henry v. Graves, 16 Gratt. 244. The court is further of opinion, that the second clause in the will of Joseph Kennedy is not justly liable to the objection suggested by appellant's counsel, of being too indefinite to confer upon his brother, Jesse Kennedy, the testator's remainder in the property, which is the subject of controversy. That clause is as follows: "At the death of my wife I give and bequeath unto my brother, Jesse Kennedy, all my stock and plantation utensils, and all the interests which I may have in an undivided dower estate, both real and personal." This language must be read in connection 86 with the clause just preceding, in which the testator fully explains what he means by "an undivided dower estate;" and manifestly shows that he refers to the land and slaves allotted to his mother for her dower in the estate of Jesse Kennedy, the father. The interest thus bequeathed to Jesse Kennedy, the brother of the testator, was by him bequeathed to Nicholas Kennedy, and was not included in the sale made by Jesse Kennedy to C. J. Timberlake. At all events there is nothing in the record to show that it was so included. Under the will of Joseph Kennedy, as has been seen, Jesse Kennedy was entitled to the legacy at the death of Elizabeth Kennedy, the widow of the testator. The evidence does not very clearly show her death. It appears, however, that she was a married woman as far back as 1824, and probably had been for a considerable period; that she afterwards married C. J. Timberlake, and that many years ago she, with her husband, removed to the state of Ohio, and whether she has been since heard from does not appear. This precise objection does not seem to have been raised in the lower court, probably from an understanding among all parties that Mrs. Timberlake was no longer living, and the fact could be easily established if the proof was called for. If the appellant desired or intended to raise this issue, the nature and character of the controversy required he should do so in the court below. It is too late to raise the question for the first time in this court. The court is further of opinion, that a cross-bill was not necessary to a proper determination of the questions arising in connection with the claims asserted by Mrs. Nancy Kelly and Nicholas Kennedy, already adverted to. They are parties defendant to the suit; their interests are particularly set forth in the bill; they were tenants in 87 common with the appellant and *the plaintiffs, and they were simply asking their distributive shares derived by descent and bequest from a common ancestor. Their interests were involved in the issue between the plaintiffs and the appellant, with the exception of a single question of law arising upon the construction of a will in one case, and the operation and effect of a sale in the other. Under such circumstances a crossbill would have accomplished no good, and the failure to file it has not been productive of injury or inconvenience to either party. The appellant might have raised, and with the same effect, before the commissioner any and every question which could have been presented in an answer to a cross-bill. 4. 5. Same-Same-Change Increasing Risk. -One condition of a policy is: Any change within the control of the assured material to the risk shall avoid the policy. The change here referred to is a change in the condition of the property, wrought by the agency of the assured, and not the mere vacation of the house by the assured or its occupants. Same-Same-Waiver.-A condition of the policy is, that the policy shall be vitiated if the premises insured become vacated by the removal of the owner or occupant for a period of more than twenty days without immediate notice to the company and written consent-HELD: It was competent for the insurer or his lawful agent to waive this condition; and if at the time the agent of the company received the premium of insurance and delivered the policy he had knowledge of the vacation of the property, and did not then avoid the policy, but treated it as valid ar. subsisting, such conduct of the agent was a waiver of the condition, and a breach of it cannot be relied on by the company to defeat a recovery upon the policy. 6. Same-Waiver General Principles.*—As to waivers by the insurers of conditions in a policy, how and by whom they may be made, see the opinion of BURKS, J. 7. 89 Same-Proof of Loss-Waiver.t-A condi tion of the policy required immediate notice of loss, and that within thirty days the insured render a particular account thereof with an affidavit, &c.-HELD: If the insurers, from any reliable source, knew that the building insured had been destroyed by fire, and by any act or declaration of theirs, or of their lawful agent, prevented the assured from preparing the schedule with the affidavit thereto required by the policy within the thirty days, whether verbally or in writing, it was *Fire Insurance-Waiver-General Prin The court is further of opinion, that if it could be properly held that appellee's primary remedy is against C. J. Timberlake, it appears that he left this state many years ago, and if alive is still a resident of a distant state. It is not shown, it is not even suggested, that he has or had any estate sub-ciples. The principal case is cited, for the proposiject to the jurisdiction of the courts of the tion that conditions in a policy, which are for the commonwealth. It was therefore unneces-benefit of the insurer, and a breach of which may be sary to make him a party to the suit, or to visited by forfeiture, may be waived by the insurer ask any decree against him before proceeding against the appellant. or his lawful agent in McLean v. Ins. Co., 29 Gratt. gard to the doctrine of waiver and estopped in in372. The rule laid down by the principal case in resurance cases, are cited and approved in Insurance Co. v. West, 76 Va. 578; Easley v. Ins. Co., 91 Va. 169; Ins. Co. v. Pankey, 91 Va. 269; Ins. Co. v. Goode, 95 Va. 756; Ins. Co. v. Ward, 95 Va. 236; Ins. Co. v. McLean, 31 Gratt. 517 and note; Ins. Co. v. Weill, 28 Ga. 389. See Ins. Co. v. Yates, 28 Gratt. 585, for distinctions. See generally, Hurst's Dig. 440. The court is therefore of opinion, for the reasons stated, there is no error in the decree of the circuit court, and that the same must be affirmed. DECREE AFFIRMED. 88 *Geo. Home Ins. Co. v. Kinnier's Adm'x. January Term, 1877, Richmond. Same-Same-Proof of Loss.-On the question of waiver of a condition in the policy requiring proof of loss, see Ins. Co. v. Reynolds, 32 Gratt. 613 and note. See also Peninsular Co. v. Ins. Co., 35 W. Va. 666 and 13 Am. & Eng. Enc. Law (2nd ed.) 1. Fire Insurance-Legal Representatives S. a waiver of the performance within the thirty days of that condition; and the omission to do so is no bar to the action on the policy, provided it was done within a reasonable time thereafter. moved for a new trial, upon the ground that the verdict was contrary to law and the evidence. The motion was overruled, and a bill of exceptions, "No 3," was taken, in which the facts were certified. The first assignment of error is to the judgment of the court overruling the demurrer, and this may be most conveniently disposed of in this connection. Same-Authority of General AgentPrivate Instructions Limiting Same.-If at the time of issuing a policy I had been authorized by the insurance company to receive and accept proposals for risks, subject to their approval and ratification, to issue and deliver policies and re- 91 new the same, and receive premiums therefor, and had been supplied with blanks signed by the president, to be filled and countersigned by him; this constituted I the general agent of the company, and the company is bound by all his acts as such within the scope of his authority, so long as it existed, notwithstanding any private instructions which he may have received limiting that authority, of which the assured had no notice. This case is fully stated by JUDGE BURKS in his opinion. Kirkparick & Blackford, for the appellant. Kean and John W. Daniel, for the appellee. *The first, and I suppose the chief objection made to the declaration is, that the action was improperly brought by the administratrix, and could only be maintained by and in the name of the heirs of the plaintiff's intestate. The declaration alleges that "the defendants entered into and duly executed a certain writing, commonly called a policy of insurance, and delivered the same to the plaintiff, wherein and whereby in consideration of the receipt of $37.50 paid by the plaintiff to the defendants, the said Georgia Home Insurance Company did insure the said Alexander Kinnier and his legal representatives $3,000, &c." BURKS, J. This is a supersedeas allowed by It is contended that by the terms "legal one of the judges of this court to a judg-representatives," used in the declaration purment rendered by the corporation court for the city of Lynchburg in behalf of Bettie J. Kinnier, administratrix of Alexander Kinnier, (defendant in error), against the plaintiff in error, the Georgia Home Insurance Company, a corporation created by the state of Georgia. 90 The action was assumpsit on a policy issued by the plaintiff in error, insuring the said Alexandria Kinnier and his "legal representatives to the amount of $2,000, against loss by fire on a dwelling house situate on Daniel's hill in the city of Lynchburg, and to the amount of $1,000 against like loss on household furniture and other personal property contained in said building. The plaintiff in her declaration alleged the destruction of the building by fire, and claimed the amount of the insurance upon it. The defendant demurred to the declaration, and also pleaded the general issue. The demurrer was overruled, and on the trial of the issue by the jury the plaintiff and defendant both moved for instructions. a The first instruction asked for by the defendant was refused by the court, and bill of exceptions was taken to the refusal. This is bill "No. 1" in the record. The defendant then asked for eight other instructions. The court refused to give the fifth, sixth and seventh; and also refused to give the first, second, third, fourth and eighth in the form in which they were asked, but gave them with modifications of each; and also gave three asked for by the counsel for the plaintiff. To this ruling of the court the defendant's counsel excepted, and the instructions refused, and, as given with modifications, are found in the bill of exceptions "No. 2." By this bill all the evidence of both parties is made a part of the record. The jury found a verdict for the plaintiff for $2.000, with interest from the first day of April 1871. The defendant thereupon suing the tenor of the policy, the heirs at law of Alexander Kinnier were intended, so far as the insured building is concerned. tion of the policy. The policy declared I do not think this is the proper construcupon, and as set out, is a contract to indemnify Alexander Kinnier personally. The words "legal representatives," as used, are of the same import as the words executors, administrators, personal representatives. The policy as set out is a simple contract; and upon the death of Alexander Kinnier, passed like his bonds, notes, and other choses in action to his administratrix; and she only had a right of action upon it. 92 We have been referred by the counsel for the plaintiff in error in support of his objection, to the case of Haxall's ex'ors v. Shippen & wife, 10 Leigh 536. That case involved incidentally the construction of a covenant for insurance entered into by the Mutual Assurance Society, a corporation created by the laws of this state. The covenant in terms stipulated for payment in case of loss to the assured, "his heirs and assigns;" and it was construed in a chancery suit, in which the form of proceeding was not a question, as a covenant real, which enured to the benefit of the heir. Whatever may have been the proper construction of the covenant in that case, I do not think the policy in this case can be properly construed as intended to enure to the benefit of the heirs. However that may be, the statute (Code of 1873, ch. 126, § 19) it seems would give the administratrix the right to maintain this action. The second objection seems to be based upon a misconception. The declaration substantially alleges a contract made and entered into by the defendant with the plaintiff's intestate, the consideration of which (the premium) is stated to have been paid by the plaintiff, and by fair intendment to The remaining objections, the one specially set out in the demurrer, and the other assigned as error in the petition, seem to be merely formal, and do not require any special notice. I am of opinion there was no error in overruling the demurrer. The policy in this case, as is usual in such writings, contains a multitude of conditions, exceptions, limitations and restrictions, amongst which are the following, which I number for convenient reference: * 1. * "The company is not liable, for loss, if there is other prior or subsequent insurance, without written consent of this company. have been paid by her in her representa- | 1870, through T. H. Ivey, the agent at tive capacity. Lynchburg, and the risk, as provided by the policy, was to commence on the 13th day of March 1870, at 12 o'clock, noon, and end on the 13th day of March 1871, at 12 o'clock, noon. It was not, however, delivered on the day of its date, nor indeed was it ever delivered to Alexander Kinnier, the insured, but was retained by Ivey, the agent, in his possession for more than two months after it was executed. Nor did Kinnier pay the premium for the insurance. Ivey says, that at the time when the policy was executed Kinnier told him that he did not have the money with which to pay the premium, and that he (Ivey) told Kinnier it made no difference; that at the end of the month he would settle with the company. Kinnier died on the 1st day of April following. Mrs. Kinnier, the wife of the decedent, (the defendant in error), became his administratrix, and made sale of the personal effects of her intestate, including the personal property insured, on the 19th day of May. On the 30th day of the same month (May), J. N. Gordon, the agent of the administratrix, paid the premium on the policy to Ivey, took Ivey's receipt for it, and Ivey at the same time delivered the policy to Gordon, having previously threatened Gordon with the cancellation of the policy if the premium was not paid. On the day of the sale of the personal property, Mrs. Kinnier (the administratrix) who, with her family, had occupied the insured tenement from the time of her husband's death until that day, vacated it, leaving no occupant; nor was it 2. And if the title of the property is transferred or changed, or the policy is assigned without written permission hereon, the policy shall be void. 3. And the entry of a foreclosure of a mortgage, or the levy of an execution, 93 shall be deemed and alienation of the property, and this company shall not be holden for loss or damage thereafter. * *This policy shall be vitiated * if the premises hereby insured become vacated by the removal of the owner or occupant for a period of more than twenty days, without immediate notice to the company and written consent. * * 5. Any change within the control of the assured, material to the risk, shall avoid this policy. 6. All persons having a claim under this policy shall give immediate notice of the same, and within thirty days render a particular account thereof, with an affidavit stating time, circumstances, and cause of fire, the whole value and ownership of the property assured, the amount of the loss or damage, other insurance, if any, and copies of the written portion of all policies; if required, shall produce books of account and other proper vouchers, and be examined under oath touching all questions relating to the claims, and subscribe such an examination when reduced to writing; and a refusal to answer any such question shall cause a forfeiture of all claims by the parties; and, until sixty days after such proofs are rendered, the loss shall not be payable. * 7. This policy shall not be valid until the premium has been paid to and the policy countersigned by the duly authorized agent at Lynchburg, Va." * * The policy was signed by the president and secretary of the company, and under their signatures was the following: "Countersigned at Lynchburg, Va., this the 12th March, A. D. 1870. T. H. Ivey, agent." 95 ever occupied at any time thereafter. *Tom Watson (a colored man) as a tenant, occupied the kitchen, an outbuilding on the same lot on which the insured tenement stood, and within fifteen or twenty feet from it, and the evidence tended to show that Watson was charged with the care of the insured building, and continued in charge of it until the 2nd of November following (1870), when it was wholly destroyed by fire in the night time and, as supposed, by an incendiary. Soon after the sale before mentioned, to wit: in the month of June, the creditors of the decedent (Kinnier) filed a bill in the corporation court of Lynchburg against the widow and heirs of said decedent for a sale of his real estate and payment of their accordingly made for the sale on credit of debts out of the proceeds. A decree was said real estate, including the lot on which the insured building was situate. The decree in express terms provided, that the commissioner ordered to make the sale should, at the time of sale, publicly announce "that no sale under the decree should be valid until ratified by the court." The sale, as orThe defence of the company before the dered, was made on the 8th day of July foljury consisted in an effort to defeat the re-lowing, and A. R. Woodroof became the purcovery sought by the plaintiff by attempting to prove a violation or breach *by the plaintiff of the several conditions and stipulation above set forth and enumerated. 94 It appears from the evidence that the policy was issued on the 12th day of March chaser of the lot on which the insured building stood. The sale was reported to the court, and the commissioner in his report stated that the public announcement required by the decree was made at the time of the sale. Exceptions were filed to the report and sale by some of the parties in interest (not the purchaser) on account of alleged inadequacy of price, which exceptions were afterwards sustained by the court, and the sale was vacated. Woodroof (the purchaser) was never let into possession of the premises. After the purchase, however, he took out a policy of insurance in the "Liverpoole, London and Globe Insur96 ance Company" on the dwellinghouse, the same on which the policy, which is the foundation of this suit, had been issued. The policy issued to Woodroof was upon condition, that it should be cancelled if the court did not confirm the sale which had been made to him. The evidence proved that T. H. Ivey was the agent of the company, and tended to show that he was a general agent, with power to receive and accept proposals for risks, subject to the approval and ratification of his principal, to issue and deliver policies, and renew and cancel the same, and that he was supplied with blanks for proof of loss. It further tended to show that he was present when the personal property insured was sold by the administratrix-knew that the insured building had been vacated, and that it was expected to be sold-that he had this knowledge when on the 30th day of May he collected the premium from the agent of the administratrix and delivered the policy to him; and the agent of the administratrix testified that at the time the premium was paid, and the policy delivered, he inquired of Mr. Ivey "if the policy was all right, and if the house was burned would the money be paid," to which Ivey replied "it was all right, and the money would be paid," and that at the same time when told by the agent aforesaid that Mrs. Kinnier had gone away, that the family had broken up, the personalty had been sold, and the real estate would be sold, and that a servant was on the premises in charge, and was asked by said agent whether it would be all right, Ivey replied that "it would." 97 It further appears by the evidence, that immediately after the house was burned, the company's agent (Ivey) of his own accord sent a notice of the loss to the company, and the agent of the administratrix testified that soon after the fire he applied to Ivey to furnish him with blank forms for proofs of loss, and inquired of him whether lapse of time would make any difference, and Ivey replied that "it would not;" and that after he procured the blanks, to wit, about the first day of February 1871, they were filled up and delivered to Ivey, and Ivey testified that he sent them to the company. It does not appear that the company ever made any objection as to the proofs of loss, or as to the time in which they were furnished. It further appears by the testimony of the agent of the administratrix, that he repeatedly wrote to the agents of the company, asserting claim for loss under the policy, and could get no satisfactory response, until finally, on the 13th of May 1871, he received a letter from one of the agents, stating that the claim had been maturely considered by the company, and that they did not re gard themselves as liable, either legally or equitably. Ivey was examined as a witness in behalf of the company, and there was considerable conflict between his testimony and that of Gordon (the agent of the administratrix), who was also examined as a witness, especially in regard to the vacating of the building, Ivey's knowledge of that fact at the time he received the premium and delivered the policy, and also on regard to the proofs of loss and the furnishing of the blank forms for such proofs. There was other evidence in the case, but so much only is stated, and its tendency towards the proof of material facts as is deemed necessary for the proper consideration and determination of the questions of law arising upon the instructions. 98 The instructions and the rulings of the court thereon are shown by the bills of exceptions, No. 1 and No. 2, before referred to, and are as follows: No. 1. Memorandum: That on the trial of this cause, after all the evidence on either side had been adduced and examined, the defendants by counsel moved the court to exclude from the jury, and instruct them not to consider any evidence going to show a loss by fire, consuming the two-story framed and shingled building, with brick basement fully detached, occupied in his lifetime "by Alexander Kinnier as a family residence, situate on Daniel's Hill near the city of Lynchburg, Virginia," the same having descended to the heirs at law of Alexander Kinnier, at his death and before the happening of said fire; which motion the court overruled, and refused to exclude said evidence, or instruct the jury not to con sider it. No. 2. The defendant moved to instruct the jury as follows: 1st. That if the jury believe from the evidence, that after said policy was issued, any change within the control of the parties interested, or those representing them, material to the risk, occurred to the property to be insured against in the policy, then the policy became void, and no recovery can now be had thereon. Which instruction the court gave with this modification: one 99 That the change must have been such a as affected the condition of the property itself, and that made by the act, authority, consent, procurement or *connivance of the assured, and not the mere vacation of the house by the assured or its occupants. 2d. That if the jury believed from the evidence, that after the risk of the policy sued on was assumed by the defendants, the premises thereby insured became vacant by the removal of the owner or occupant for a period of more than twenty days, without notice to the company and their consent thereto in writing, the said policy was thereby avoided, and no recovery can be had thereon in this suit. |