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In the February number of the AMERICAN LIW REGISTER AND REVIEW, in a note to Railway Co.v. Spencer, the English cases of Rayner v. Preston, and Castellain 7. Preston, were cited and discussed. I think that Raynor v. Preston, is good law in New York, and ought to be good law everywhere.

Castellain v. Preston, I am not very well satisfied with. In the first place, its conclusion is not demonstrated to be consistent with the doctrine of indemnity. It proceeds upon the notion that the value of the property at the time of the fire, must be the same as its valuc at the time of the execution of the executory contract to sell. This may not have been so. Therc was in that casc a two year period within which to cxcrcisc option to complete salc. But a more serious objection is this. An cxccutory contract to sell a house and lot in suture is not a present salc, and, until the time comes for closing title, the vendor, who is still the owner, would scem to have the right to rcap the advantage of pending contracts with third parties relating to his property. When the time for closing title arrives, the vendec is cntitled to receive substantially what he has contracted for. If the house has mican. while burned down, or has been substantially injured or destroyed by fire, it does not scem to me that the vendee is legally obligated to take the property under the usual executory contract of sale.

And this position is not without warrant of authority, and has been expressly held in New York. Listman v. Hickey, N. Y. Law Journal, p. 1249. Feb. 20, 1892; Smith v. McCluskey, 45 Barb. 610; Goldman v. Rosenberg, 116 N. Y. 78; Smyth v. Sturges, 108 N. Y. 492. the vendee chooses to complete the purchase, he does so because he considers the property still worth the purchase price. If the

vendor cannot compel a purchase, there is no legal right in his favor to form a basis for subrogation in favor of the insurance company. Moreover, the rule in Castellain v. Preston, would not work well in practice. To compel the parties to a future cxccutory contract to complete as matter of legal obligation when both of them prefer to cancel before the time for closing would be manifestly inconvenient. But if the law permitted them to cancel their executory contract, they would, by consent, do this upon the occurrence of the fire, in order to compel the insurers to pay the loss, provided. Castellain v. Preston, were good law. After cancelling the subsisting contract of sale, a new contract of the same tenor and effect might immediately be substituted under which it could not be claimed that the insurance company would have any right of subrogation to the purchase price.

The insurance contract is, in its terms, an agreement to pay to the vendor the cash valuc of his property destroyed. The starting point and presumption should be, that the contract is to be enforced according to its cxpress terms unless a clear consideration of public policy intervenes, and where the assured has respected the doctrine of the necessity of an insurable interest at thc time of the issuance of the policy, and also during its entire life it is hardly worth while to press the doctrine of indeninity any further. According to Castellain v. Preston, the insurers may receive premiums for nothing, though no condition of the contract has been violated by the insured ; and this result is in itself inequitable.

The strict doctrine of indemnity has for convenience been abandoned in the law of life insurance on this account. Nor is it uniformly applicd in the law of fire insurance in accord. ance with thc rigid rules iaid down in Castellain v. Preston. In proof of this, many cascs might be cited from the English and American reports: Blackstone v. Alemahnia Ins. Co., 56 N. Y. 104; Mut. Safety Ins. Co. v. Hone, 2 Comst. (N. Y.) 235; Collingridge v. Royal Exchange Ins. Co., 3 Q. B. D. 173 ; Seymour v. Vernon, 21 L. J. Ch. 433; Burnard v. Rodocanachi, 7 App. Cas. 333, 339.

In fact, in Castellain v. Preston, the learned justices seem to

be avowcdly struggling throughout their opinions with the many legal obstacles with which they have to contend.

A contract to sell in future is not a sale within the mcaning of the policy: Browning v. Home Ins. Co., 71 N. Y. 508 ; Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176; Hill v. Cumberland Valley M. P. Co., 59 Penn. St. 474.

And until title passes, it is convenient to consider the vendor's relations to his insurance contracts undisturbed.

GEORGE RICHARDS, New York, February 13, 1894.


As cosmopolitain habits increase in popularity, the decisions upon the probate of foreign, or partially foreign wills and codicils, become of greater importance, particularly where the will of the testator is contained in more than one document. The question of incorporations in the probate of separate documents, has frcquently troubled the courts, especially the . probate of separate and distinct wills disposing of property in a different country from that in which the general will of the testator is offered for probatc. The Probate Division of the High Court of Justice in England, were recently confronted with a most peculiar state of facts, In re Goods of Tampui (1894) P. 39. Testator domiciled in England, Icft a will with two codicils, disposing of his property in England and Russia, and also two other instruments, one a will, revoking all previous dispositions so far as they related to his rcal property in Russia, and appointing separate cxccutors of that property. All the cxccutors and trustees united in applying for probate in England of the five instruments. The Russian will was not cxccuted in accordance with Russian law, and it was hoped that, if admitted in England, the domicile of the testator, the probate might be recognized in Russia as covering the realty. The court refused to allow the will relating to the Russian real property to be included in the probate, since that would be the same as saying that a will dealing only with English personalty, and a will dealing only with English rcalty, ought both to be

admitted to probate, because, forming together a disposition of the whole property of the testator. No casc, it was asserted, could be cited to that cffcct. Thic point, however, was regarded as important, and an appeal probable. In the cases where the courts have not insisted upon the probate of all the separate testamentary papers, they have done so as a concession to the convenience of the parties in interest: In the Goods of Astor, 1 P. D. 150. A concession in the case of the Goods of Tampui, would have been a matter of great practical convenience, certainly it has been the invariable custom to rcquire some mcmorandum to be attached to the general will probated of the document relating to thc forcign goods, so that any one looking at the probatc may be at oncc apprised of the existence of such' other paper.

The well established rulc in Pennsylvania that no testator is presumed to die intestate as to any part of his property, if the words of the will can be construed to carry the whole, is forcibly illustrated and confirmed in Reimer's Estate, 28 Atlantic, 186. The clausc in dispute contained the words. “I give to my brother Andrew all my household goods, books, clothing, furniturc, etc., that he may desire. The balance o the personal effects to be divided among the children of my sister.” The Orphans' Court decided that the words “ balance of personal effects," referred only to the goods mentioned in thc bequest to Andrew, and did not include a large residue o personal property, consisting of cash and securities. This decision the Supremc Court has reversed, giving the clause the broadest possible construction, and the word, “effects," the widest possible mcaning, holding in fact, that the sentence is residuary in its character. Justice Dean, in dissenting, took the view that the words, personal effects, were restricted by the context, and that the intentions of the deceased could be plainly ascertained.

In cases of the construction of ambiguous phrases in wills, arguments from precedents are nearly useless, for no two cases are alike. The maxim that no testator is presumed to die intestate as to a part of his goods, if the words will carry the wholc is so often and so triumphantly quoted in recent deci

sions, that it may be regarded as a ready and uscful Deus ex machina for relicving a distracted bench.

The Supreme Court of Errors of Connecticut, has had occasion, in the recently reported In rc Barber's Estate, 27 Atlantic, 973, 10) consider the ever recurring question of testamentary capac' tand the exhaustive character of the opinion delivered will, it is to be hoped, not only end the discussion in that state, but also be of service in other jurisdictions. The court had to dispose of a wordy and ponderous charge to thc jury, containing statements to the effect that the burden of proof lies in every casc, and remains throughout the trial upon the proponents of the will. That the burden upon the proponents is not that of proof by a fair preponderance, but by such evidence as brings certainty to the minds of the jury. And that to dcfcat a will on the ground that it is the product of an insane delusion, the jury should be satisficd by a preponderance of cvidence of thc cxistence and cffect of such a dclusion. These statements were certainly calculated to confusc a jury. The Supreme Court, however, revicws thc whole subject of the burden of proof in cases involving testamentary capacity, finding an irreconciliable conflict of vicws and opinions. The present tendency is to hold that, on formal proof of capacity by the attesting witnesses, the burden of proof upon the proponents has been discharged, and thercaster rests upon the party alleging incapacity. If the opinions of the attesting witnesses are favorable, thc court concludes, the contestant will forward with affirmative evidence of insanity, and proponent will rebut, there being always a presumption in favor of sanity, which must be counterbalanced by a preponderance of cvidence. It is hardly necessary to discuss the deplorable situation of the proponent, should the opinions of the attesting witnesses prove unfavorable. The interesting topics touched upon in this case are hypothetical questions, expert testimony and the admissibility of letters addressed to testator and found among his papers.


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