Appeal from supreme court, general term, third department. One ground upon which the defendant's motion for a nonsuit was rested is again urged as a reason for reversal. It is that a condition precedent to a recovery was violated, in that lamps were filled with kerosene in the evenings, and by artificial light. The clause in the policy cited in support of the objection goes no further than to free the insurer from any loss or damage arising from that cause. The language is: "This company will not be liable under or by virtue of this policy for loss or damage caused by the working of mechanics, * * nor for the use of kerosene, * * * unless permitted hereon in writing." The meaning evidently is that for a loss resulting from the use of kerosene, except in the manner specified, the insurer will not be liable. It did not appear that the fire and consequent loss had any such origin. It is objected that the assured made no diligent effort to save his property, as required by the terms of the policy. That instrument, again, only relieves the company from liability for damage resulting from such neglect. Whether the assured, in truth, disobeyed the requirement; whether it was reasonably possible for him to have done more than he did in his endeavor to put out the fire; whether, by any risk or effort, he could have saved anything after he was driven from the building by the flames; and so whether any part of the loss was due to his neglect,-were questions of fact upon the evidence, and must be deemed to have been answered in his favor by the verdict against the defendant. The further objections cluster about the This action was brought by William D. Jones, as assignee of Robert T. Matheson, upon a policy of fire insurance issued by the Howard Insurance Company of New York. This policy was for $1,000, and covered a stock of clothing, etc., owned by Matheson, and situated in the village of Granville. On February 1, 1884, the goods, together with all books of account, invoices, bills, statements, etc., were consumed by fire, with the building in which they were situated. The value of the property destroyed was about $7,500, and the total insurance was $5,000; $4,000 being held by other companies. Notice of the loss was at once given to the defendant's local agent. On February 6, 1884, Matheson assigned all his property to plaintiff for the benefit of his creditors; and the assignment, with plaintiff's acceptance, was duly filed in the clerk's office. The assignee filed his bond, and entered upon his duties. Matheson's claims for insurance were part of the property assigned. Proofs of loss were made by Matheson, and forwarded to the company, February 28th, and were received by defendant, February 29th. To show the value of the goods destroyed, Matheson procured, as far as possible, duplicates of the original bills and invoices, and the result thus obtained was checked by comparison with the amount of an inventory made in January, 1884. No exception or objection was made by defendant to the proofs, either as to form or sufficiency, until April 14, 1884, 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 defendant desired, or to arrange a day for such examination, but the defendant refused to act in the matter. The defendant refused to pay the amount of insurance, and on October 16, 1884, this action was begun. Judgment was rendered for plaintiff, and defendant's motion for new trial was denied. The judg-days after the fire, he made a general assignment was affirmed by the general term, and defendant appeals. The issues in the case sufficiently appear in the opinion. Norton Chase, for appellant. J. M. Whitman, for respondent. A review of the objections made will show that some of them were frivolous, and none of them sound. Thus, it was objected that "the interest or title of the assured and others in the property alleged to have been destroyed is not correctly or fully stated." At the time of the fire. the assured was sole owner. Five ment for the benefit of his creditors to the present plaintiff. Some 20 days later, he signed the proofs of loss, which were sent to the company, and the demand of the assignee 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 that date. The objection made to 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 setassured 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 could be promptly and definitely obeyed. This treatment of the assured had about it no element of fairness or justice. In addition, it appears that the general agent had already examined the assured in such manner and to such extent as he chose. It is objected, again, that "the statements of the cash value of the property destroyed are contradictory and inaccurate. They were not contradictory. One sum was named as the actual cash value, and no other. There was, indeed, an explanation of the manner in which the assured arrived at his estimate; and that, intended to confirm, may rather have contradicted, his statement of actual cash value. Whether it was inaccurate or not, however, was a question of fact for the jury, which they have determined in the plaintiff's favor. It is again objected that the origin of the fire was not correctly stated. The proofs declared that the cause of the fire was to the assured unknown. That was a correct and sufficient statement, unless he lighted the fire himself; and the jury have said that he did not. It is urged against the recovery that the certificate of the nearest notary was not obtained. There was one about 20 feet nearer the location of the burned building, but who was himself a sufferer from the same fire, and so concerned in the inquiry whether the assured was the incendiary, or the fire an accident. The policy does not call for such a certificate unless "if required." No such requisition had been made when the proofs of loss were sent, and the certificate attached was simply superfluous. The objection made was not a requirement. It was a claim that the proofs were not sufficient because a certificate of the nearest notary, "as provided by the conditions of the policy," had not been furnished. No condition was violated until the insurer, after the loss, formally required the certificate to be furnished, which never was done. A further objection is that another condition precedent to recovery was violated, in that the company was never furnished with original or certified copies of bills or invoices of the property destroyed. The policy puts that burden on the assured only in case he is so required to do by some person appointed by the company. No such requirement was made until some time in June, long after the proofs of loss had been rejected, and about four months after the fire. Before that demand, the assured and his assignee presented themselves at the office of the company in New York, with all the bills and invoices they could obtain, to submit to their examination. The president somewhat curtly dismissed them; and thereafter, on June 18th, the gen The final objection urged is that the proofs of loss did not contain copies of the written portion of other policies. The proofs named the other policies, specified the insurers, and amounts of the risks, described them as covering the same property, and as "concurrent with the one herein described." The written portions of that were given. I think this was a substantial performance of the condition; but, if not, the objection was waived by the delay. The proofs of loss were perfect in every other respect, and there is not a shadow of excuse for waiting 45 days to de-, mand a more perfect performance, by giving formal copies of other policies. Keeney v. Insurance Co., 71 N. Y. 396. We are thus of opinion that no ground exists for a reversal. The judgment should be affirmed, with costs. All concur. (117 N. Y. 95) KEARNEY v. CRUIKSHANK.1 (Court of Appeals of New York. Oct. 29, 1889.) APPORTIONMENT OF ANNUITY. When an annuity is granted by a will made before Act N. Y. 1875, c. 542, making annuities created by instruments made after the passage of the act apportionable, but no time is fixed for the payment thereof, it is payable annually after the death of testator, and is not apportionable, and on tives are not entitled to a proportionate part of the death of the annuitant his legal representasuch annuity for the time elapsed since the last annual payment. Appeal from supreme court, general term, first department. This action was brought by Alfarata Kearney, as administratrix of the estate of Sarah Louisa Reed, deceased, against Augustus Cruikshank, trustee, to recover a proportionate share of an annuity granted said deceased by the will of Benjamin Lord. The cause was submitted to the general term upon an agreed statement of facts, and judgment rendered for plaintiff. Defendant appeals. James L. Bishop, for appellant. Graham, for respondent. John this case arises upon the claim of the repreANDREWS, J. The question involved in 1 Reversing 46 Hun, 219. were not apportionable in respect of time. This rule, it has been said, "proceeds upon the interpretation of the contract by which the grantor binds himself to pay a certain sum, at fixed days, during the life of the annuitant, and when the latter dies, such day not having arrived, the former is discharged from his obligation." Luml. Ann. 291. It resulted from the general rule that if the annuitant died before, or even on, the day of sentative of Sarah Louisa Reed for the apportionment of an annuity given to her by the will of Benjamin Lord. The testator died July 5, 1851. By his will, after providing for the payment of his debts and funeral expenses, he directed his executors to take possession of his real and personal estate, receive the rents, interest, dividends, and income thereof, and out of the same to keep the real estate in repair, and pay the charges 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, aífirmed, 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 sum 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 from the control, interference, or debts of her present or any future husband." The testator then directed that the residue and remainder of the net income should be paid over and divided among his brothers and sisters, and that on the death of Mary Van Veghten the store, 147 Cedar street, should be sold, and the proceeds divided among his brothers and sisters and one Lavina Knapp, and that on the death of Sarah Louisa Reed the "whole of the rest, residue, and remainder of my estate, both real and personal," should be divided between the same persons. The annuity to Mrs. Reed was paid to her annually, on the 5th day of July in each year, after the death of the testator, up to and including the year ending July 5, 1885. The annuitant died June 7, 1886, and her administratrix demanded from the defendant, trustee of the estate of Benjamin Lord, payment of a proportionate part of the annuity from July 5, 1885, the date of the last payment, to June 7, 1886, the day of her death, which was refused on the ground that the annuity for the year was not due and payable until July 5, 1886, and was not apportionable. harsh and rigorous rule of the common law. The statute, 4 & 5 Wm. IV. c. 22, was the first statute making annuities apportionable in respect of time. In construing this statute some of the courts held that the statute covered continuing annuities only; that is, annuities not terminating with the life of the first taker. Reg. v. Lords of the Treasury, 16 Q. B. 357; Lowndes v. Earl of Stamford, 18 Q. B. 425. This led to the enactment of the comprehensive statute, 33 & 34 Vict. c. 35, which made all annuities apportionable, and declared that annuities should, "like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. There can be no doubt that in a case like the present one, arising in England after the passage of these statutes, it would be held that the annuity was apportionable. But no statute was enacted in this state changing the rule of the common law, and making annuities apportionabl, until the passage of the act, chapter 542, Laws 1875; and as this statute, by its terms, only applies to annuities created by instruments executed after the passage of the act, 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 can 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 due. 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-appor tionability 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 cation 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 the 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 would 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 will for the payment of an annuity it ing 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 a year. The court held the annuity apportionable, but put its decision expressly upon the statute, 4 & 5 Wm. IV., changing the common-law rule. Trimmer v. Danby, 23 Law J. Ch. 979, was the case of an annuity of £150 to A. B. for life, no time of payment being fixed. The annuitant died eight days before the end of the year, and it was held by KINDERSLEY, V. C., that under the act of 4 & 5 Wm. IV. the annuity was apportionable. In deciding the case, the the trust. The circumstances are quite consistent with the view that the testator had in view an annual payment of the annuity, and it is difficult to suppose that he intended to subject his executors to the embarrassment of being obliged to make up an account of the income whenever called upon within the year by the annuitant. The whole title to the real and personal estate of the testator vested in the executors, subject to the performance of the trust to receive the rents, 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 income as such vested in her, but she was entitled to enforce the performance of the trust in her favor. should be set off against the entire or only Jarvis' share of the legacy to himself and his children. The portions of the will relevant 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 items 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, and judgment is ordered for the defendant on the submission, with costs. All concur. (150 Mass. 96) PRICE v. DOUGLASS et al. A testatrix, who had made advances to a 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 paid "by a set-off betwixt the debt so due to my estate and the legacy given from my estate;" that her entire estate, including such loans, be divided into five equal shares, each of her five children, and their respective children, to receive one share, and such division "I make with equal love and af. fection towards all my children." The will was executed in anticipation of future advances, and at the time of her death the amount of his loans exceeded $23,000 and his proportion of the legacy to himself and his children could not exceed $8,000. The testatrix set apart specific sums for all her grandchildren, except the legatee's children, who were to share equally with their father in the leg: acy to them. Held, that such indebtedness should be set off against the entire legacy to the legatee and his children, and not merely against his por tion thereof. Reserved case from supreme judicial court, Bristol county. Bill by Edward R. Price, administrator of the estate of Rebecca W. Robinson, deceased, to ascertain the mode of distributing the legacies under her will. The father of Jarvis W. Robinson, and after his death the testatrix, furnished money to him for the support of himself and family, and for some time after Jarvis' death the testatrix continued to furnish money for the support of his children, which sums remained unpaid at the time of testatrix's death. The question re son, Nelly L. Robinson." "(10) The foregoing division of my estate I make with equal love and affection towards all my children, and, in view of all circumstances, believing that it will operate with substantial justice to all of them, and be the best for each and all." H. J. Fuller, for petitioner. Morton & Jennings, for Gertrude A. Moore and others. E. H. & S. C. Bennett, for Harriet R. Douglass and others. KNOWLTON, J. The question which arises in this case is whether the testatrix intended that the loans advanced to her children, Ellen R. Douglass and Jarvis W. Robinson, should be set off against the respective shares of the estate to be distributed to them and their children, or against the respective portions of those shares which would come to them alone. There is no single clause in the will which determines the question, and we must gather her intention from a consideration of all the provisions of the instrument. Her household furniture, silver-ware, books, and pictures she divided equally among all her children. She gave her wearing apparel, jewelry, and china-ware to be divided equally among her three daughters. In the third clause she says that two of her children had obtained loans in anticipation of what they might afterwards receive in the distribution of her estate, and had given notes therefor, and intimates that further loans may be made and additional notes given, and directs that all such loans and notes be taken as a part of her estate to be divided, and closes by an order in these words: "That in the division thereof, as hereinafter directed, such notes and loans be paid by a set-off betwixt the debt so due to my estate and the legacy given |