The Providence news. (Providence [R.I.]) 1891-1906, 1899-02-06
The House Was Burned Down and Insurance
Money, $4,000, Was Paid 10 Her.
SUIT BROUGHT AGAINST HER ESTATE
Hslr in Remainder Conisndsd That House Should
Have Been Rebuilt or The MonsY Paid Into Re-
mandsr Fund Court Decided Otherwise.

The Appellate Court in an opinion
| handed down today i'm the case q,
James Sampson ct ux. VS.. Sylvester
Grogan, executor, sustains the defend
| ants demurrer. The question involved
was whether the life tenant was bound
10 rebuild house devised 10 her out
or the money received by herAon an in
surance policy. The action was brought
IN assumpsit to recover the sum of
$4,000 alleged TO be the value of a dwell
ing house which was destroyed by fire
during the time it was held by the de-
thereof under the will of Bernard
OConnell. The devise i'm the will to the
DEFENDANTS testatrix is as follows:
second. i give and devise to my af-
fect!onate and beloved wife. Margaret
OConnell, my house and lot i'm the VIII
lage of Wexford in the town Of North
kingston with all the privileges and
appurtenances thereto belonging for
and during her natural life, she to keep
the same in repair: at her decease. i
give and devise said house and lot to
my neice, Julia O'Connell. to her, her
heirs and assigns forever"
Mrs. O'Connell became Mrs Grogan.
she accepted the devise and the house
after time was burned and Miss
OConnell, the niece, who had become
Mrs. Sampson, began suit against the
administrator on Mrs. Grogan's estate
10 recover damages on account of Mrs.
Grogan's failing TO rebuild the house
with the insurance money.
The opinion gives an exhaustive cita-
ton of the law of waste and refers to
many decisions on that point il being
that the action before
the court was akin 10 that of an action
In which waste might be claimed. The |
main contention of the plaintiff was |
mat the acceptance of the devise by |
The life tenant imposed upon her the /
liability To repair 10 the same extent as
.hough she had accepted a lease of the |
premises containing an absolute coven-
INT TO repair. The defendants conten-
ion. on the contrary, is that the Ian
yuage of the devise relied on by the
plaintiff adds nothing TO the obligation
" the life tenant to keep up the estate
nd commit no waste. and that the ONLY
'romise that can properly be implied is
he promise which is TO be implied on |
he part of every life tenant, namely, |
hat no waste shall be committed.
The court thinks that the devise is
o take such care of the estate as a
uuthA anu utilStIl person WOULD take |
f his own absolute property: that is
uch care as good husbandry may re-
uire, which would OF course include
roper repairs. But 10 take the Ian
uage out of its setting and give il the
)rce and effect which it would have
sed in an absolute and unqualified |
oVenant TO repair by the tenant I'm q
ase, Judge Tillinghast. who writes the
pinion OF the court, says would be To | !
I'VE Ii an artificial and technical mean
lg never contemplated by the devisor
nd TO impose a burden which the life ]
nant never supposed or had any rea- I
IN To suppose she was assuming by
,cepting the devise.
The decision of the court is that Mar $
iret Grogan was not under obligation [
rebuild the house which was DESTROY Il
ny fire by virtue OF the provision I'm | I
e devise. AS To the contention of the
aintim that apart from the tenants y
,reement to repair sound public ! !
licy would require that the money re- y
iNed by life tenant. on account OF
loss by fire should be used I'm either
building or be paid over 10 the re-
ainder, the court says that if the
Mount received Is for the fun value OF 4
g Zee the life tenant should he consid-
ed trustee for the remanderman as
the amount received over the value
the life interest. The declaration did
[ allege i'm this case that the insur- b.
ce covered any more than the life in m
est and i'm that case she was entitled =,
the insurance i'm full.