Yost v. McKee , 179 Pa. 381 ( 1897 )

Opinion by

Mr. Justice McCollum,

The refusal of the. insured to comply with the condition in the policy in regard to the appointment of appraisers to ascertain the amount of the loss in case of a disagreement concern ing it does not constitute a good defense to this action. The condition was nothing more than an agreement to refer to three appraisers to be appointed at a future time, to determine the amount of the loss by the award of any two of them. It was a revocable agreement and the insurance company is in no position to complain, here or elsewhere, of the revocation of it. It has not shown that it admitted the validity of its policy, or its liability under it, but on the contrary it has, in the language of the learned judge of the court below, “ always denied its liability on ground which, if sustained, cut up the contract by the roots.” The foregoing views are fully warranted and sustained by the decision of this Court in Mentz v. Ins. Co., 79 Pa. 478. In Assurance Co. v. Hocking, 115 Pa. 407, it was distinctly held in an opinion by Mr. Justice Clark that where an agreement to arbitrate does not provide for submitting matters in dispute to any particular person or tribunal named, but to one or more persons to be eventually chosen by the parties, it is revocable by either party. Further consideration of this branch of the insurer’s contention is deemed unnecessary, because the cases cited furnish a sufficient answer to it.

Another defense to the action is that the interest of the insured in the property destroyed was “other than unconditional and sole ownership,” and this depends on the construction of the will by which he acquired title to it. The property destroyed was a dwelling house included in the devise by David McKee of his homestead to John D. McKee “to be his forever for his own proper use,” subject only to a restriction of alienation until he attained the age of thirty years, which in his case was for the period of thirteen years. In Jauretche v. Proctor, 48 Pa. 466, Woodward, C. J., said: “A partial restriction, such as not to alien to a particular person or for a limited time, may be supported, but a general restraint of alienation when annexed to an absolute estate is void, upon the familiar principle that conditions repugnant to the estate to which they are annexed bind not.” This is in accord with the view expressed by Tilghman, C. J., in McWilliams v. Nisly, 2 S. & R. 507, and by Coulter, J., in McCullough v. Gilmore, 11 Pa. 870. It is said in 6 Am. & Eng. Ency. of Law, p. 877, note 4, that “ the weight of authority seems to be against such restraints however limited as to time.” The ground on which a partial restraint of alienation is supported is that it is not inconsistent with a reasonable enjoyment of the fee: McWilliams v. Nisly, supra, and Libby v. Clark, 118 U. S. 250. While the cases on this point are conflicting, the Pennsylvania cases we have, cited seem to sustain a partial restraint of alienation. But we may assume that the restriction in question, is valid without conceding that it relieves the insurer from liability on its policy. The conditions of the policy are to be understood, not in their technical sense, but as requiring that the insured be the actual and substantial owner: Beach on Insurance, sec. 405. The risk was not affected by the restriction. It was not inconsistent with a reasonable enjoyment of the estate devised, and the insured was the actual, sole and substantial owner of the property destroyed. For the reasons above stated the restriction in question cannot be regarded as affording a defense to the action.

It is'contended however that if the insured by the devise to him of the homestead acquired an estate in fee simple it was by another provision of the will, defeasible on his death under thirty years of age without issue. The provision referred to is preceded by the devise of the homestead, by gifts of annuities to the brothers, sisters, and children of the testator, and by the appointment of executors. It is as follows: “ On the death of my heirs herein named all property and bank stock to be sold and divided among all the heirs should my grandson John D. McKee die before he is thirty without leaving any heirs his estate to be divided pro rata among the heirs.” We have quoted it entire and as it was written. It is quite clear that by “ my heirs herein named ” the testator meant the annuitants, and that “all the heirs” included John D. McKee. It is also obvious that “ all property and bank stocks ” did not include the homestead previously devised in fee. The part of the provision which relates to the division of John D. McKee’s estate may be fairly referred to his share of the proceeds of the property previously directed to be sold. , It may be possible to construe it as including the homestead, but it seems to us that this is not the reasonable interpretation of it. “ The clearly expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator’s distinctly announced main intention : ” Sheetz’s Appeal, 82 Pa. 218. “ Where there is a clear gift in a will it cannot afterwards be cut down except by something which with reasonable certainty indicates the intention of the testator to cut it down: ” 2 Jarman on Wills, 443. Applying this well settled rule of construction to the will under consideration we hold that there is nothing in it which clearly indicates that it was the intention of the testator to defeat or modify his devise of the homestead. There is no other question raised by the specifications which requires discussion. All the specifications are overruled.

Judgment affirmed.