#### David Addis *et al.,*Resp’ts, *v.*Cornelius L. Addis, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

Insurance (fire)—Life tenant and remaindermen.

The defendant was tenant by the curtesy of a house and lot to which the plaintiffs, his children, were entitled in remainder. The defendant had built the house himself and had insured the premises as being *469sole owner. A loss occurred; the insurance company paid it, but on learning the condition of the title brought suit to recover the amount. *Held,*that as tenant for life the defendant was not bound to rebuild nor to insure the premises for the benefit of the remaindermen and that they had no claim upon the moneys paid under the policy.

Appeal from a judgment in favor of the plaintiffs, entered upon a trial before the court without a jury.

The defendant Addis was in 1887, and is now tenant by the curtesy and tenant in common with his children, the plaintiffs (his interest being one-eighth), of a farm in Eochester, Ulster county, Uew York. The dwelling house upon the farm was destroyed by fire, without the fault of the defendant, as found by the court, and having insured it, he collected the policy. The insurance was in his own name and he paid the premiums out of his own money. It being afterwards discovered that there was a breach of the policy, through the defendant’s misrepresentation, the insurance company sued him to recover back the amount paid on the policy ; he drew a cheque on the defendant bank, in which he had deposited the insurance money, in favor of the insurance company, for the amount. Payment of this cheque was prevented by the injunction issued in this action, which is brought upon the theory that the plaintiffs, as reversioners of the farm, are owners of the insurance, the plaintiffs asking judgment that the defendant Addis is interested only in the income of the fund, and that on the termination of his life estate, the principal of it be paid over to the plaintiffs.

*R. F. Wilkinson,*for app’lt; *J. Newton Fiero,*for resp’ts.

Learned, P. J.

The plaintiffs and defendant are co-tenants in remainder of a house and lot, of which the defendant is also tenant for life by the curtesy. The defendant insured the house in his own name. It was burned down and ho received the insurance money. The plaintiffs now claim a portion of the money. It was adjudged that one-eighth be paid to defendant; that the residue be invested by the county treasurer for defendant’s life; that after his death that residue be distributed among the plaintiffs.

In the defendant’s application for insurance he described the house as “his dwelling house.” In the proofs of loss he stated that the property belonged to him and that no one else had any interest in it

The house was worth about $1,000. The defendant built it himself and paid for it and got the lumber from his father’s lot. The defendant’s wife, who owned the land, died in 1866. The insurance was for $800, which amount was paid to him.

The insurance company demanded back the money and commenced a suit to recover it

It would seem by the evidence that, through the incorrect statements of the defendant (whether intentional or unintentional) the policy was invalid,, and that the company, if it had chosen, need not have paid. But we do not see that this circumstance gives the plaintiffs any rights. Indeed, if the payment was voluntary on the part of the company, it is difficult to understand how *470the plaintiffs can have any interest therein.- According to the evidence, the defendant had no valid claim against the company. If he had no claim against the company, certainly the plaintiffs had none. And if they had no claim against the company, we do not see what right they have to the money which the company voluntarily paid to the defendant

It has been held that a tenant in possession of a life estate, who has bought an equitable estate of one of the remaindermen, could not purchase for his own benefit on a sale under a municipal assessment. Being in possession, he could not buy up an adverse title and oust his co-tenant *Burhans*v. *Van Zandt,*7 N. Y, 523. But that is a principle not in the least applicable to insurance. The owner may insure his interest in the property, and may do this for his own benefit He is under no obligation to protect other owners against loss by fire. If he should insure their interests without express authority from them, he could not collect from them any part of the premium. The case of *Wyman*v. *Wyman,*26 N. Y., 258, only decided that where the insured died and subsequently a loss occurred and the money had been paid by the company, the widow should have her dower therefrom, then the debts of the deceased should be paid and the residue, if any, should go to the heirs. That merely decided a question of distribution among persons,all claiming to succeed to the rights of the insured. It was substantially a question of marshaling the assets of a deceased person. But these plaintiffs claim adversely to the insured; not under him.

The case of *Peck v. Sherwood,*56 N. Y., 615, does not support the plaintiffs’ claim. The remainderman, who was the executor, appears, according to the opinion, to have made or concurred in an insurance with the tenant for life The only matter decided was that the remainderman should be allowed in his account for a proportional part of the premium.

Now, without an express covenant, the tenant for life is not liable to rebuild a house destroyed by fire without his fault. He is in no sense a trustee for the remainderman. If not bound to rebuild, he certainly is not hound to insure for the benefit of the remainderman.

Both the tenant for life and the remainderman have insurable interests and each can insure for himself. Perry on Trusts, §§ 487, 553. If this defendant had neglected to insure, and the plaintiffs on the contrary had insured, he would have had no claim against them for the money or for any part of it The fact that he was in possession does not change the rights. *Harvey*v. *Cherry,*12 Hun, 354; S. C., 76 N. Y, 441, and cases there cited. See 1 Phillips on Ins. (3d Ed.), § 349.

We do not see any ground upon which the plaintiffs have any claim whatever to this money.

The judgment should be reversed and a new trial granted, costs to abide the event, and the injunction against the bank dissolved.

Landon and Mayham, JJ., concur.