author: Waite, J. Ellsworth, J.

text:
    Leavitt against Beirne and others.

    The testator died in March, 1845, having previously disposed of his estate by will as follows. After giving some small legacies, he declared, that the residue of his property, real and personal, should be divided equally among his children; and that the share of his daughter M should be for the exclusive use of her and her children, free from the debts and controul of her husband; and to secure the same to their unimpaired enjoyment, he gave such share to his sons G and O, with full authority to apply the property as to them should seem best for their exclusive benefit, during the life of M, and after her decease, to divide the same among her children. The estate left by the testator amounted to 500,000 dollars, of which M's share under the will was 83,000 dollars. She was then married to S, by whom she had six children, who, at the time of the hearing, were from twenty-two to three years of age. S, with his wife and children, were at house-keeping in the city of New-York, until a short time before the testator’s death, when, failing in business, he went with his family to board in a hotel. In March, 1846, with a view of resuming house-keeping, an arrangement was made with the plaintiff, by which furniture of the value of 6,856 dollars was procured for the use of the family, for which M, by the advice of her husband, gave her promissory note to the plaintiff for 5,589 dollars, payable, on the 1st of September following, from funds to be received from her father’s estate. The furniture thus procured, though not essentially necessary, was not extravagant or unreasonable. The trustees accepted the trust under the will; but when the note was given by M, they had not advanced anything from the estate, nor had they authorised her to make any contracts which should affect the trust fund in their hands. After the note became due, it was presented to one of the trustees for payment. He objected neither to the purchase of the furniture nor the payment of the note, but declined payment for want of funds then in his hands. The other trustee had not, at that time, any knowledge of the purchase or of the note. Large and ample funds have since been placed subject to her controul. On a bill in chancery brought against the trustees to compel payment of the note from the trust fund in their hands, it was held, that the property given by the testator to his two sons in trust for the benefit of M and her children, was not so given as to be subject to her controul, and liable to be bound by her contracts, but the trustees had not only the legal title and custody of the property, but were clothed with authority to apply it according to their discretion, for the purpose specified; consequently, the court refused to interfere with the exercise of their discretion, until it should be shewn that there had been some abuse of their authority. [Two judges dissenting.]

      Fairfield,

    August, 1850.
    This was a bill in chancery, brought to compel the payment of a promissory note, executed by Mary D., the wife of John B. Steenbergen, out of property holden by her brothers, George P. Beirne and Oliver Beirne, under the will of their father, in trust for her and her children.
    The cause came on for trial at the February term, 1850, of the superior court for the county of Fairfield, when the following facts were found by the court.

      Andrew Beirne of Virginia died in March, 1845, having, a short time previously, made his will, by which, after the bequest of a few small legacies, he disposed of his estate in the following manner:
    “ The balance of my property, real and personal, to be divided equally among my children, subject to the following provisions and conditions, that is to say, that my son Andrew Beirne is to have a life interest only in his portion of my estate, and that, after his death, to be equally divided among his children and their descendants. All and every of the property given to my daughter, Mary D. Steenbergen, is for the exclusive use of her and her children, free from the debts and controul of her husband; and to secure the same to their unimpaired enjoyment, I hereby give the same to my sons, George P. Beirne and Oliver Beirne, with full authority to apply the property as to them shall seem best, for their exclusive benefit, during the life of my said daughter, and after her decease, to divide the same equally among her children;" and he appointed these two sons executors of the will.
    The testator left a large estate, amounting to more than 500,000 dollars, and the share allotted to Mrs. Steenbergen under the will, was about 83,000 dollars. She had married John B. Steenbergen, and by him had six daughters still living, the eldest of whom, at the time of the hearing, was about twenty-two, and the youngest about three years of age.
    In the spring of 1844, Steenbergen purchased of J. W. Leavitt a large and valuable house in the city of New-York, for 21,000 dollars, then under the incumbrance of a mortgage to the plaintiff for 20,000 dollars, upon which purchase he paid 6,000 dollars, and assumed the balance of the plaintiff’s mortgage, amounting to 15,000 dollars. He also purchased of Leavitt furniture, to the amount of 6,000 dollars, and, with his family, moved into the house, and lived there until a short time before the death of the testator, when he failed in business, and went, with his family, to board in a hotel.
    In December, 1844, he assigned the house and furniture to J. W. & R. Leavitt, to whom he was largely indebted; and the furniture was subsequently assigned to the plaintiff. Soon after the death of the testator, Steenbergen applied to J. W. Leavitt, as the agent of the plaintiff, to redeem the house and furniture, with a view of resuming house-keeping; and Leavitt, as the agent of the plaintiff, proposed that the mortgage of the plaintiff should be reduced to 12,000 dollars, and that Mrs. Steenbergen should, from the funds to be received from the estate of her father, pay for the furniture, and receive the same. This proposition was made known to her, to which she, at the suggestion and by the advice of her husband, agreed.

      Steenbergen then procured one Hunt to assume the payment of the mortgage of 12,000 dollars, and for the balance, being then 3,589 dollars, 70 cents, she, on the 28th of March, 1846, at the suggestion and by the advice of her husband, made her note to the plaintiff, payable on the 1st day of September following, to be by her husband delivered to the plaintiff, and to be paid from the funds to be received from the estate of her father. In consideration of this note, she was to receive the furniture, amounting to the sum of 6,856 dollars, 68 cents. The plaintiff thereupon conveyed the house to Hunt, and the furniture was given to Mrs. Steenbergen, or to the family, without any written assignment; and the family went into the use and occupation of the same.

      Hunt soon after occupied the house, and purchased either of Steenbergen or his wife, or both, a portion of the furniture, sufficient to furnish two parlours, and less in value than one-half of the same. Steenbergen soon afterwards removed with his family to Southport in Connecticut, and occupied a dwelling-house, furnished with the furniture purchased of the plaintiff. It was found by the court, that furniture to the amount of the note, was not essentially necessary for the comfort and convenience of Mrs. Steenbergen and her family; but that in the city of New-York, it was usual for families of no greater wealth to furnish their houses with furniture of equal or greater value, and that this was not extravagant, nor unreasonable for her family.
    The trustees accepted the trust conferred upon them by the will; but at the time when the note was given, they had not paid or advanced her any thing from the estate of her father, and had not authorised or empowered her to make any contracts, which should affect the property by them holden in trust; and neither of them in fact knew, that she was about to make any purchase of furniture, or execute any note; but the plaintiff claimed, that such knowledge might be inferred from the other facts herein found.
    The plaintiff, when he received the note, had been informed, that she was entitled to a large estate, by virtue of the will of her father, to her separate use, but did not know who were the trustees, or whether there were any. When he ascertained that Oliver Beirne was one, which was a considerable time after his note became due, he presented the note to him, informing him for what purpose it was given, and requested payment. O. Beirne did not object to the purchase, nor to the payment of the note, but declined payment for want of funds, then in his hands. The other trustee had no knowledge of the purchase or of the note, until the commencement of the suit.
    In November, 1845, the trustees, at the request of Mrs.
      Steenbergen, purchased a lot of land in Fairfield, Connecticut, for 4,000 dollars, and took the conveyance to themselves, and subsequently, from time to time, advanced to her, or paid upon her orders, large sums of money, amounting to 14,000 dollars, with which she and her husband have erected an expensive dwelling-house and other buildings upon said lot, for the purpose of providing a house for her and her family. After the erection of the house in Fairfield, Steenbergen removed, with his wife, family and furniture, from Southport into the house where they have ever since remained.

    The questions arising upon these facts, as to the remedy of the plaintiff, if any, were reserved for the advice of this court.

      Hawley and Osborne, for the plaintiff,
    contended, 1. That the contract for the purchase of the furniture, was made with the consent of the trustees. In the first place, the purchase of the furniture was a necessary part of the arrangement made by them for establishing Mrs. S. at house-keeping. On the 6th of November, 1845, they purchased the Fairfield property, for the express purpose of providing a home for Mrs. S. and her family. They of course intended that the house should be furnished. They must also have intended that the furniture should come from the trust fund; for her husband was then a bankrupt. The furniture was purchased in March, 1846, when it was needed for this purpose. Secondly, the trustees shewed, by their acts, that they meant to leave, and did leave, the building, improvements and fitting up of the establishment to Mrs. S. They purchased the land, and remitted money, but gave no directions. Thirdly, they acquiesced in the purchase of the furniture, by permitting it to be put into the house and used, after notice. Fourthly, the remittance, by the trustees, to Mrs. S., of moneys to be expended, at her discretion, amounts to a ratification of the purchase. It authorised her to apply the moneys to past, as well as to future purchases, and is decisive evidence that the trustees left the fitting up of the establishment to her. Fifthly, there was an express assent, by Oliver Beirne, the acting trustee, when called upon, by the plaintiff, for payment. By declining to pay then, for want of funds, he impliedly promised to pay, when in funds. Sixthly, the purchase being within the general purpose of the will, and of the trust, and being beneficial to the cestui que trust, and her estate, assent will be presumed, in the absence of express dissent. If the trustees ought to have assented, the court, by virtue of its equity power, will consider such assent as given.
    2. That Mrs. S. had authority to purchase the furniture on the credit of the trust fund, independently of the consent of the trustees. The established doctrine is, that a feme covert may dispose of her separate estate, unless she is specially restrained by the instrument creating it. It is an incident of the property. 2 Sw. Dig. 124 Jaques v. Methodist Episcopal Church, 17 Johns. Rep. 548. 2 Kent’s Com. 163. (6th ed.) Owen. v. Dickinson, 1 Craig & Phil. 48. West v. West’s exrs. 3 Rand. 373. Vizonneau v. Pegraw, 2 Leigh, 183. A restraint on alienation will not be implied: it must be created in express terms. Jaques v. Meth. Epis. Church, ubi sup. Acton v. White, 1 Sim. & Stu. 429. In this case, Mrs. S. had a vested equitable title to the property. Green v. Spicer, 1 Russ. & Mylne, 390. At any rate, she had authority to charge the trust fund, to the extent of a suitable maintenance for herself and children.
    3. That the court has a discretion to adapt the decree to the circumstances of the case, so as to do justice to all parties. 2 Kent’s Com. 163. 2 Sw. Dig. 254. It may either, 1. decree that the trustees pay out of the trust property in their hands, and enforce obedience according to the course of chancery proceedings; or 2. may decree the sale of any property within its jurisdiction, and apply the avails.

      Dutton and Ferris, for the defendants,
    admitting that if the estate had been given to Mrs. S., without limitation or restriction, the note in question might have been collected out of the estate, contended, That under the will of Andrew Beirne and the circumstances of this case, the plaintiff was not entitled to the relief sought. They insisted, 1. That Mrs. S., by her father’s will, had no distinct and separate
      property whatever. The property is given “for the exclusive use of her and her children.” The trustees are vested with full authority to apply the property “as to them shall seem best, for their exclusive benefit.” It is uncertain how many children she may have. She, individually, has no exclusive right in any portion of the property. It was given for the support of the family, as a family—not as individuals. The intention of the testator is the governing principle. The wife is a feme sole no farther than the instrument makes her so. 2 Spence, 512. 521. Clancy, 294. Pybus v. Smith, 1 Ves. jun. 189, 194. Scott v. Davis, 4 Mylne & Craig, 89.
    2. That Mrs. S. had only a life interest. She had, therefore, no power to dispose of anything more than a share of the income of the property, if she could dispose of that. The case does not shew that there was any income, in the hands of the trustees, which had not been delivered to her, by them, before they had any knowledge of the existence of the note to the plaintiff. It is well settled, that a cestui que trust, who has only a life estate, cannot affect the property in trust.
    3. That it was not the intention of the testator, that Mrs. S. should have any controul over the property. The trustees are to apply the property “as to them shall seem best.”
    4. That Oliver Beirne never assented that the property in his hands should be charged with the payment of this note. He never paid any claim, nor agreed to pay any. The utmost that he did, was, to put money into her hands to pay certain debts which she had contracted. This would give assent to those debts, and to no other. An assent by a guardian, or overseer, to one debt, raises no presumption in favour of another.
    5. That the application, by the trustees, of the trust fund, to pay this note, would have been a violation of the trust. An assent to such an act cannot, therefore, be presumed. It can be established only by positive proof. Oliver Beirne's declining to pay the note, for want of funds in his hands, raises no promise to pay it under different circumstances. The assent, to be of any avail, must be that the property should be charged.
    6. That there is not the slightest evidence, that George P. Beirne, the other trustee, ever knew of the note until this suit was brought. One trustee could not dispose of the property without the assent of the other. Lewin on Trusts, 265. Alexander v. Alexander, 2 Ves. 643.
    7. That the assent of the trustees, if shewn, would confer no power on Mrs. S. to charge the property. That power must be derived from the will, and from that alone. The trustees could not charge the fund, even by making themselves liable. 2 Spence, 514. & seq.
    8. That the plaintiff has no equity. He took the note, relying on Mrs. S., not on the trust fund, for payment.

         This case was not decided until the meeting of the judges in November, 1850, and their opinions were not prepared in season to be inserted with the other cases argued at the same term.

         For some particulars, not embraced in this general statement, see the opinion of the court in this case, post.

   Waite, J.

The plaintiff’s suit is founded upon the claim, that Mrs. Steenbergen, under the will of her father, took such an interest in the property given to her brothers, in trust for her and her children, that she has power to bind the same, by her contracts. If this claim can be sustained, then undoubtedly the plaintiff is entitled to the relief he seeks. For we freely admit, that property may be so given in trust, for a married woman, that she may use and controul it, as a feme sole may her own property, and may bind it by her contracts. And if her trustees refuse a compliance with her directions, in relation to the disposition of the trust property, their obedience may be enforced, by a court of chancery. Donalds v. Plumb, 8 Conn. R. 447. Imlay v. Huntington, 20 Conn. R. 147.

But, at the same time, we think it in the power of a parent to place property in the hands of trustees for the benefit of a son and his wife and children, with full power in them to manage and apply it at their discretion, without any power whatever in the son to interfere in that management, or in the disposition of it, until it has been actually paid over to him, by the trustees. In such case, a court of chancery will never interfere with the exercise of that discretion, until it is shewn, that there has been some abuse of the authority given to the trustees.

In many cases, the exercise of such power may be highly beneficial and necessary. A man may have a son, so fallen into vicious habits, as to be utterly unfit for the management of any property. A gift to him might be worse than useless. That son may have a wife and children, whom he entirely neglects. The father be both able and willing to make ample provision for them, and save them from being a public burden. But he can do nothing through the instrumentality of his son. But may he not through the intervention of trustees, in whom he can confide, and place property in their hands for the benefit of his son and family, beyond his controul?

Again, a man may have a daughter married to a man, entirely reckless in the management of property. Whatever funds are placed within his reach will soon be scattered and gone, and do her little or no good. She may be so completely under his influence, that she would not dare to set up any will of her own, in opposition to his; and any gift to her would, in effect, be one to him, and, practically, of no use to her, or her children. The father may be perfectly satisfied that any amount of property whatever can be of no benefit to them, unless placed entirely beyond the controul of both. But his object may be accomplished through the medium of trustees, clothed with the custody and the entire disposition of the property, for the benefit of his daughter and her children. It may be unpleasant to them to be deprived of the privilege of spending the property, so given, as they please; but, at the same time, the father had the power of disposing of his property as he thought proper, and they must be content to take it in the manner he has prescribed, or not at all.

It is true, this power may, sometimes, be unnecessarily and capriciously exercised, but is not more likely to be abused than many others, appertaining to the ownership of property. There is much more danger to be apprehended from the power which a father has, of cutting a daughter off from any portion of his estate, or of giving her a mere nominal legacy, than there is, that he will give her the beneficial use of a large share of his estate, and at the same time, unnecessarily deprive her of the controul and disposition of the property. In the latter case, he will be likely to select for trustees, men, to whom her rights may be safely confided. But however this may be, the power, in both respects, exists, and cannot well be controuled, without placing undue restraints upon the alienation of property.

The enquiry, then, in the present case, comes to this; was the property given by the testator to his two sons in trust, for the benefit of his daughter and her children, so given as to be subject to her controul, and liable to be bound by her contracts; or were the trustees clothed not only with the custody of the property, but the application of it, according to their discretion, for the purpose specified.

If the former is the fair construction of the will, then the trustees are bound to apply it according to her directions, in the fulfillment of her contracts. If the latter is the true construction, then they are neither to be governed by her orders, nor by any interference of a court of chancery with the exercise of their discretion, until it is shown, that there has been some abuse of their authority.

What are the provisions of the will, in this case? The testator, after giving several legacies, directs the balance of his property to be divided equally among his children, subject to the following provisions and conditions. Those relating to his daughter’s share are briefly these. All the property given to her is for the exclusive use of her and her children, free from any debts or controul of her husband; and to secure the same to their unimpaired enjoyment, he gives the same in trust to his sons, George P. Beirne and Oliver Beirne, with full authority to apply the property as to them shall seem best, for their exclusive benefit, during the life of the daughter, and after her death, to divide the same equally among her children.

Now, in the opinion of a majority of this court, the trustees, by the terms of the will, are clothed not only with the legal title to the property, but the power to apply it, as to them shall seem best, or in other words, according to their discretion. They must indeed apply it for the benefit of the daughter and her children; and were they to appropriate it to any other use, a court of chancery might then interfere, because they would then transcend their authority. But so long as they continue to use the funds for the benefit of their sister and her children, it is for them to apply them according to their judgment. Suppose she should be of opinion, that a particular mode of investment would be best for her and her family; and the trustees should be of an entirely different opinion, and therefore refuse a compliance with her request. Whose judgment is to govern?—hers or theirs? This question is to be determined, not by enquiring whose judgment is the best,—but which has the power of deciding.

It seems to us, that the language of the will leaves no possible doubt upon the subject. They have full authority to apply the property, as to them shall seem best, and not as may seem best to her. Suppose the trustees had carefully examined the facts in relation to the purchase of the furniture, and had come to the conclusion, perfectly satisfactory to their minds, that such purchase was not best for their sister and her children, and therefore should refuse their approbation of the purchase, can a court of equity review their decision, and reverse it, if they find it to be wrong? We think the court has no such power.

But it is asked, may she not employ a physician, in a case of sickness in her family, or purchase a necessary article of clothing for her children, without the previous assent of the trustees? How far their refusal, or even neglect to furnish her with the means of providing necessaries for herself and children, would constitute a breach of trust in them, we need not enquire; for no such case is presented for our consideration. It does not appear, that they have ever refused to comply with a single wish of hers, unless it be in their refusal to pay the note in question. And even with respect to that, it does not appear, that she ever made a request to them that they should pay it. Her husband, through his influence, obtained the note from her, upon an agreement on her part, that it should be paid out of the trust property, but without the knowledge of the trustees; and they now refuse to pay it; which is about all there is in the case. Aside from this, it is found, that large and ample funds have been placed subject to her controul.

Whether it was wise or proper for the testator to deprive his daughter of all controul over her share of his estate, and place it in the hands of his sons, to be applied at their discretion, is not for us to say. The only question for us to determine, is, whether he has done so; and we think he has. Nor has he thought proper to assign his reasons, for so doing. Nor was that necessary. We think, however, we need not travel out of the record to enable us to discover enough to induce the belief that he might consider it more safe and beneficial to his daughter and her children, to place the property beyond the indirect, as well as direct, controul of his son-in-law. His sons might resist his influence, when the daughter might not.

It appears, that about a year before the death of the testator, Steenbergen purchased a large and expensive dwelling-house in the city of New-York,—furnished it with costly furniture, lived in it but a few months, failed in business, sold the house and furniture, and then went with his family to board at a hotel. Soon after the death of the testator, he applied to the agent of the plaintiff to redeem the house and furniture, with a view of resuming house-keeping. An arrangement is made, by which his wife, at his suggestion, and by his advice, is induced, without the knowledge or approbation of her trustees, to execute a note to the plaintiff for 3,587 dollars, 70 cents, for the furniture, thereby reducing the price to be paid for the house to 12,000 dollars, and instead of occupying the house with his family, it is immediately sold and conveyed to another person. The note is payable in about five months after its execution; and it does not appear, that Oliver Beirne, one of the trustees, who lived in the city of New-York, where the whole arrangement was made, had any knowledge of the transaction until a considerable time after the note became due, and was presented to him for payment. The other trustee had no knowledge whatever upon the subject, until process in this suit was served upon him.

Under these circumstances, what was the duty of the trustees? It is found, that they had, previous to their knowledge of this transaction, made large advancements to their sister, which she had expended at her pleasure. If they paid the note, it might be construed into an implied recognition of her power, by her contracts, to bind the trust property, and induce the husband, by like suggestions and advice, to procure the execution of other notes, to aid him in carrying on other financial operations. They may have thought, and justly too, that the most effectual mode of preserving the property for the unimpaired enjoyment of their sister and her family, was to shut, at once and forever, the door against all debts contracted by him, directly, or in the name of his wife. We cannot, therefore, say, that under such circumstances, the trustees, in refusing payment of the note, have been guilty of any breach of the trust reposed in them. At any rate, we think it a matter confided to their discretion, and for them to do, in the language of the will, as to them seemed best.

Again, it is asked, shall Mrs. Steenbergen be permitted to retain the property, and not pay for it? But that is not the question before us. It is simply, whether the trustees shall be ordered to pay for it out of the trust property. And why should they be so ordered? They have never purchased it, directly or indirectly. No conveyance has ever been made to them; they have never received it, and have no controul over it. The plaintiff, instead of dealing with them, has thought proper to deal alone with Steenbergen and his wife, and place them in possession of the furniture. What his rights are, as against them, or in regard to the furniture, is not for us to determine, in the present suit.

A part of the furniture, very soon after the purchase, was sold; and what became of the purchase money, we are not informed. Had the trustees received the property, or had any conveyance been made to them, by which they could controul it, the case would be very different. But no such facts appear.

Again, it is said, that the trustees have a large amount of funds in their hands, and have made large advancements to their sister, and why should they not pay this debt? The amount of the trust estate can have no effect upon the construction of the will, as it makes no reference to the amount. The power of the trustees must remain the same, whether the funds in their hands are an hundred thousand, or only an hundred dollars. And as to the advancements, it was a matter confided to their discretion, and does not, in our opinion, affect the question as to their liability in the present case.

There is another feature in the case, which possibly may be deserving of some attention. The property is not given for the sole use of Mrs. Steenbergen, but for the use of herself and six daughters. If she can bind it, by a contract for the purchase of furniture, why may not each of her daughters do the same, when she becomes of age and is married? And if for furniture, why not for other articles which she may deem suitable for her rank and condition in life? The effects of such power in so many different individuals, acting separately and independently, to say the least, would be very troublesome and embarrassing to the trustees. But no such jarring of interests would arise upon the other construction of the will.

For these reasons, a majority of the court are of opinion, that as against the trustees, the plaintiff is not entitled to the relief prayed for in his bill, and advise the superior court to dismiss the same.

Storrs and Hinman, Js., were of the same opinion.

Ellsworth, J.

I cannot concur in the opinion of my learned brethren, just delivered.

It is manifestly unjust, that Mrs. Steenbergen should be left to enjoy the furniture in question, while she refuses to pay for it out of the ample fund fairly pledged for payment, especially, as the fund is itself increased just so much, and since there is no possible way but this, of obtaining payment at all. If this bill is dismissed, the debt is, of course, entirely worthless.

Col. Beirne died worth more than half a million of dollars. After giving some small legacies, he declares in his will, that the balance of his estate shall be divided equally among his children. This gives Mrs. Steenbergen more than 83,000 dollars. At the death of her father, in March, 1844, she, with her daughters, some of them fully grown, was living at board, in the city of New-York. Until a short time before her father’s death, she had lived in an expensive and well-furnished house in Barclay street, in a style of life corresponding with her rank and her expectations from Col. Beirne’s ample possessions. She seems to have possessed the affections and confidence of her father, in the fullest measure. He gave her an equal share of his estate, and, carefully provided, that his daughter and her children should have the fullest enjoyment of it possible. The language of the will is “I give my property to be equally divided among my children”—“the property given to my daughter Mary D. Steenbergen, is for the exclusive use of her and her children, for their unimpaired enjoyment.”

This is a devise of property—of property too, for an “unimpaired,” or absolute enjoyment. It is not an uncertain, indefinite license to Mrs. Steenbergen, to call on her trustees, to dole out, from time to time, so much of her share as should be satisfactory to them. They hold the fund for her enjoyment—for her full enjoyment—in exact subservience to her wants, not their pleasure—not as distributers of their own bounty, but of the testator’s bounty.

No question is made, by the counsel for the defendants, but that by the law of New-York, in a court of equity, a feme covert is possessed of the power of a feme sole in the use and disposition of her separate property. So the law is laid down, in Jacques v. Methodist Episc. Church, 17 Johns. R. 548. Such is the law of England, as may be seen by the array of cases in Clancy and 2 Sto. Eq. 36.—and such is our law. Imlay v. Huntington & al. 20 Conn. R. 146—178.

Nor is the case embarrassed with the question, sometimes raised, what shall be taken to be an appropriation of separate property, by a feme covert. The antient cases in England held, uniformly, that contracting a general debt was an appropriation, or else such an engagement amounted to nothing; for as the woman was a feme covert, she would not be personally liable; and if her separate property could not be reached, she would not be liable at all. Such, I rather think, is the law, at the present time, though it has sometimes been called in question. But in this case, there is no such question; for at the time of the purchase, and indeed as a part of it, her property was pledged for this debt, and it was mutually agreed, that the debt should be paid out of it; and nothing more than this is required in any case which has fallen under my observation.

Let us look at the circumstances which attended the purchase of this furniture.

At the death of Col. Beirne, Mrs. Steenbergen was living, at the Clinton Hotel in New-York, with her daughters. Learning of the ample provision made for her, in her father’s will, she re-purchased the furniture, which she had, shortly before, given up, to satisfy her husband’s debts, in order that she might again resume house-keeping, which she did, in her former residence. She received back the furniture, worth more than 6,000 dollars, for the note in question of 3,589 dollars, 70 cents, upon an agreement with Mr. Leavitt, that, when due, it should be paid out of her estate. From that time, she has continued, uninterruptedly, to enjoy her purchase, except that she has sold the furniture of two rooms, and used the money received from it, for herself, thereby relieving her own funds to that extent. Oliver Beirne, one of the trustees, was, all this time, living in New-York, and had not made any payment to her, whereby to purchase furniture, or any thing else. He did then, as he has continued to do since, leave the management of her family affairs to her own judgment.

It is further found, that the furniture in question was neither “extravagant nor unreasonable."

Why now shall not this debt be a lien on Mrs. Steenbergen's share of the estate, or the income from it, and on the furniture itself? The objection urged, is, that the trustees did not give their consent to its purchase; and that without their consent, no debt can be contracted, which will incumber the property or the income from it. The answer is two-fold. Their assent to this purchase was not indispensable; and if it was, they may be held to have given it.

First, was their assent indispensable? It is certain the cestui que trusts are ever to have an “unimpaired,” exclusive enjoyment of this portion of the estate. Can they, then, enter into no contracts whatever—not even for conveniences or necessaries, without first obtaining consent? Can they employ no mechanic, instructor, physician, servant or labourer until leave obtained? Are both of the trustees, (for one is not enough,) first to be hunted up, by Mrs. Steenbergen, and made acquainted with all her wants and purposes? And when she has found them, and respectfully supplicated their consent, what if they refuse to give it? What is her situation then? Now, I must think this is a dependence—I had almost said, a degradation—little anticipated by Col. Beirne—a restriction contrary to the manifest object of his bounty, and quite incompatible with the comfort and respectability of this family. Should they object to the purchase of articles of convenience and necessity, would not equity instantly afford relief? And if so, why will it not now? This purchase is found to be of that character; and all parties are now before the court, that justice may be done.

Is it said, Mrs. Steenbergen may perhaps enter into contracts to procure necessaries, without getting previous consent from the trustees, but can go no further than this. Well, she has not gone farther than this, in the purchase under consideration; and this is all I have occasion or desire to maintain, in order that this creditor should be entitled to payment. The power of the trustees to interpose, in certain cases, to protect or distribute this fund for the benefit of the family, is a different thing altogether. This is not that case, but quite otherwise. If indeed, the trustees are interposing here, for the benefit of the family, their sense of propriety and honesty is not the most correct, in my judgment; and if Mrs. Steenbergen approves of the course pursued, she is willing to enjoy other people’s property, without paying for it.

There is a case in our own court, Donalds v. Plumb, 8 Conn. R. 448. which illustrates and supports these equitable views. Rufus Marsh made his will, giving the use and improvement of his estate for the support of his daughter Abigail Kingsbury, during her life. She became sick, and employed Dr. Plumb as her physician. Not being able to get his pay, he brought a bill in equity to reach her equitable estate, and he succeeded. Williams, J., in giving the opinion of the court, says, “when property is given, as it often is, for the sole and separate use of a feme covert, and she contracts debts for her support, the fund can be resorted to, by a creditor, who has furnished her with necessaries.”

* * * * “But surely, Mrs. Kingsbury, upon the credit of a fund given to support herself and her children, will, in a court of equity, be considered as authorised to procure, by means of it, sufficient assistance to prevent them from suffering for want of food and medical aid.”

Further, if it be important, the trustees and Mrs. Steenbergen have uniformly, put the same construction I contend for on this devise, viz. that she was to conduct, at least her domestic affairs, without their supervisory controul.

Oliver Beirne lived in New-York, and knew that his sister must have occasion to purchase furniture for the family. What did he do towards it? Did he advance money to aid her? Did he object to her buying it on credit? Or to her doing whatever might be needful, according to her own pleasure? Obviously, he left the whole matter to his sister’s taste and decision. Pray, how did he suppose the furniture would be, or had been, procured, except just as it was procured? He had then advanced her nothing. So too, he never objected or intimated, that he dissented from her purchase. Did he, at any time, after he knew his sister had incurred this debt, repudiate it, or inform Mr. Leavitt of her inability to contract, or of his dissatisfaction with her conduct? Never—but, on the contrary, when called upon by the creditor, to meet this engagement of his cestui que trust, he only said, he had not then the money in hand, to pay the note. He knew all about what his sister had done; and I do fully believe unequivocally acquiesced in her acts. Besides, these brothers not only left their sister to provide necessaries and conveniences for her family, but after the purchase in question was made, and really following it up, at her mere pleasure, they took a deed, in their names, for her, of a site for an expensive house in Fairfield in Connecticut, and then left her to build, and finish, and furnish the house, and fit the grounds about it, according to her pleasure. So they have conducted throughout, never consulted, and never expecting or wishing to be consulted. They meant their sister should have an “unimpaired enjoyment” of what was her own. And so of the moneys since paid her, they have never asked her a question or imposed any restrictions, but committed them to her pleasure alone. If now they propose to raise a question as to her power to act as she uniformly has done, and full in their view too, it would redound more to their credit to wait until they are presented with a case of oppression, or unfairness, and not begin with a transaction so honourable and upright as this is. They have quietly permitted the trust fund to be increased more than the debt in question, and now, while the cestui que trust is enjoying the furniture as if paid for, they resist payment, to save property for the family! If equity cannot interpose, in such a case, then the doors of justice, which should ever be open to redress grievances, are opened in vain.

In this opinion Church, Ch. J. concurred.

Bill dismissed.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    The Glendale Woolen Company against The Protection Insurance Company.
    Hartford,
    June, 1851.
    In relation to the contract of insurance, there is an important distinction between a representation and a warranty: the former, which precedes the contract or insurance and is no part of it, need be only materially true; the latter is a part of the contract, and must be exactly and literally fulfilled, or else the contract is broken and inoperative.
    It was provided in one of the conditions of insurance annexed to the policy, that the survey and description of the property should be deemed a part of such policy, and a warranty. The survey consisted of interrogatories and answers. One of the interrogatories was—“ Is there a watchman in the mill, during the night?” To which the answer was—“There is a watchman, nights.” The property insured was destroyed by fire, on the night following the setting of the sun on Saturday, and the fire was first discovered on the morning of Sunday, while it was yet dark; during which period, there was no watchman in the mill. Held, that the survey contained a clear engagement, by the insured, that they would keep a watchman in their mill, through the hours of every night in the week; which engagement being broken, there could be no recovery on the policy.
    Where there is no imperfection or ambiguity in the language of a contract, it will be considered as expressing the entire and exact meaning of the parties; and no evidence of extrinsic matters or usages will be received to vary the terms expressed.
    This was an action on a policy of insurance, to recover the sum of 12,500 dollars, insured against loss by fire, on a mill, machinery, stock, &c., owned by the plaintiffs.
    The cause was tried, on the general issue, with notice of special matter to be given in evidence, at Hartford, January term, 1851.
    On the trial, the plaintiffs introduced in evidence the policy of insurance on which their action was brought, and proved the execution thereof, by the defendants, and the countersigning thereof, by Plunkett & Hurlburt, their agents.
    Among the conditions of insurance, annexed to the policy, the 18th was as follows: “When a policy is made and issued upon a survey and description of certain property, such survey and description shall be taken and deemed to be a part and portion of such policy, and warranty on the part of the assured.”
    The survey referred to in the policy, and made part thereof, was also introduced; and its execution by the plaintiffs, and its delivery to the defendants, were admitted.

      The caption of this document was—“ Survey of a cotton or woolen mill, on which insurance is to be predicated." It contained 26 interrogatories, with blanks to be filled up with answers, by the defendants. The 8th interrogatory was as follows: “Is there a watchman in the mill, during the night? Is there also a good watch-clock? Is the mill left alone, at any time, after the watchman goes off duty in the morning till he return to his charge at evening?” To these questions the defendants made the following answers opposite thereto. “There is a watchman, nights—No clock—Bell is struck every hour from 8, P. M., till it rings for work in the morning.” To the last question the answer was—“Only at mealtimes, and on the Sabbath, and other days when the mill does not run.”
    The 15th interrogatory was—“During what hours is the factory worked?” Answer, “Summer, commence at 5 o’clock, A. M., work till dark—Winter, commence as soon as we can see, in the morning, work till 8, P. M., except occasionally running over-time nights, to even up the work.”
    At the bottom of the sheet containing the interrogatories, was a letter addressed to the applicants, requesting them to fill up the blanks; on the receipt of which the insurance company said, they would promptly advise them (the applicants) of the rate at which the company would grant a policy thereon.
    It was proved, that Plunkett & Hurlburt, at the time when said insurance was effected, resided in Pittsfield, Mass., and that the negotiations for the insurance were made between the plaintiffs and Thomas Plunkett, one of said agents, at Pittsfield, which was the only negotiation on the subject; and that the policy was countersigned and delivered to the plaintiffs, at Pittsfield.

    But the defendants claimed, and introduced evidence to prove, that the agents had no power, in the present case, to do any thing but to receive surveys and proposals, and take the advice of the insurance company; and that the policy and survey were sent by said agents before the policy was delivered, to the office of the company in Hartford, for advice and approval.
    It was proved, that the practice of the defendants was, and had before been, to send to their agents abroad blank policies of insurance, signed by the president and secretary of the company, and to be countersigned by their agents, when insurance was effected by them; and that the policy in question was thus executed.
    The plaintiffs claimed, that Plunkett & Hurlburt were the general agents of the defendants; which the defendants denied, and introduced evidence to prove, that they never empowered their agents abroad, and had not authorised Plunkett & Hurlburt, to make any verbal contracts on their account, nor to make an insurance to a greater amount than 10,000 dollars, without consulting the defendants; and that, in the present case, the agents had consulted and taken the advice of the defendants, before the policy was delivered, as before stated.
    But it was not claimed nor proved, that the plaintiffs had any knowledge that the powers of the agents were in any other way restricted than appears on the policy.
    It was proved, that the mill and buildings covered by the policy, were consumed by fire, and damaged to a much greater amount than was insured thereon by the defendants, on the night next following the setting of the sun on Saturday, the 7th day of April, 1849; and that the fire was first discovered between the hours of 3 and 4 o’clock, on the morning of Sunday, the 8th day of April, and while it was yet dark; and that, when there was no watchman at the mill; and the cause of the fire is not known.
    It was agreed, that the plaintiffs had made all the preliminary proofs of loss, &c., required by the terms and conditions of their policy of insurance.
    The plaintiffs introduced evidence to prove, and claimed they had proved, that it was the usage and practice of the plaintiffs’ mill, when the survey was made, and had been, for a long time before, the practice at the plaintiffs’ mills which stood on the same site, the principal one of which had not long before been consumed by fire, to employ a watchman at those mills; and that the custom at such mills was, and always had been, for such watchman to leave the mills at 12 o’clock on Saturday night, and to return at 12 o’clock on Sunday night, unless fires had been kept later than usual on Saturday night, i. e. after 4 o’clock, in which case the watchman remained on duty until the fires were out. The workmen left the mill at 4 o’clock on Saturday, P. M., the fires were put out then, the year round. On other days, the watchman commenced duty when the mill stopped at night, and the workmen left, which was at 8 o’clock in Winter, and at - in Summer, and continued until the hands commenced work in the morning; and that the bell was struck hourly, when watchmen were on duty, including the hour of 12 o’clock. This usage of the plaintiffs’ mill was proved by the superintendent of that mill.
    The plaintiffs then enquired of the witness, if this practice or usage was not general in the cotton or woolen factories, and if it was not known to the defendants’ agents in Pittsfield, when the policy was effected.
    To this enquiry the defendants objected; and after argument, the court overruled the objection, and admitted the evidence.
    The plaintiffs then introduced several witnesses, to prove, and claimed that they had proved, that the same usage which had prevailed at their mill, prevailed also at various other woolen and cotton factories which they named, and which were located in the county of Berkshire, and that such practice was common, so far as their knowledge was concerned, and as they believed, and which testimony conduced to show that said usage was common, general, and well known in the county of Berkshire, and was known to the defendants, and their said agents; which usage was denied by the defendants, and that they or their agents had any knowledge thereof.
    And also the plaintiffs offered to prove, by the superintendent of their mills, and he testified, that when said survey was made, and on many former occasions, he had communicated to Plunkett, as agent of the defendants, the aforesaid usage and practice at the plaintiffs’ mill, of watching as aforesaid; and that said usage was well known to Plunkett, when the insurance was effected, and when the policy was issued; and especially that Plunkett had often visited the mills, and made enquiries regarding said watch, and when the examination for the policy in question was made, and at all such times, had been informed of the practice in said mill; and they claimed, that such usage should be considered in giving a construction to the policy, and the jury should be so instructed; but they were not.

      And the plaintiffs offered testimony to prove, that the policy was actually delivered after this, but was dated back to the 11th September, 1848; which the defendants denied.
    To all this evidence the defendants objected, among other reasons, on the ground that all previous negotiations, statements and propositions, were merged in the written contract or policy, and could not be received to affect or vary the legal construction thereof, or of the survey attached thereto.
    And the plaintiffs claimed, among other reasons for admitting such evidence, that it appeared from the policy and survey, that the language thereof, in respect to watching in the mill, was ambiguous and equivocal; and that the Sabbath commenced at 12 o’clock, P. M., of Saturday, after which labour was prohibited, except works of necessity and charity, by the statute law of Massachusetts, which they read.
    The court overruled said objection, and admitted the evidence; and thereupon the plaintiffs claimed and requested the court to charge the jury, that if the usage in the county of Berkshire as they claimed, was proved, and known to Plunkett & Hurlburt, when the policy was issued, it must be presumed, that it was effected in reference to such usage, especially as the policy, as they claimed, was ambiguous; and if the plaintiffs had conformed to such usage, as they claimed they had, that it was a sufficient compliance with the terms and fair meaning of the survey regarding keeping watch in the mill, as expressed in the answers propounded under the 8th interrogatory in the survey; and that the survey ought then to be construed in reference to such usage, and in conformity with it. And the plaintiffs also claimed, that if such usage was common and well known in the county of Berkshire, and if Plunkett & Hurlburt resided therein, when acting as the agents of the defendants, and were the general agents of the defendants, as the plaintiffs claimed; that the law would presume that they had knowledge of such usage; and requested the court so to instruct the jury.
    But the court did not instruct the jury on these matters.
    The plaintiffs further offered evidence to prove, and claimed they had proved, that the usage and custom of their mill, was, to commence work, in Summer, at 5 o’clock, A. M., and in Winter, as soon as the workmen could see to work; and in Summer, to work till dark, and in Winter, till 8, P. M.,
      except occasionally, when there was overwork, and except Saturdays.

    The defendants, in their defence, claimed, and asked the court to instruct the jury, that the answers to the several interrogatories propounded in the survey, were, in law, warranties, and not representations merely, and especially the answers to the questions put under the 8th interrogatory, and that they must be proved to be strictly true and complied with, by the plaintiffs, in keeping watch in the mill, according to their obvious import and meaning.
    The plaintiffs denied this, and claimed that the answers were not to be considered as warranties, and were not so in law, but were representations only; and especially they claimed such to be the law of the commonwealth of Massachusetts, by which they claimed this policy was to be adjudged; and as evidence of this, they cited and read the reported case of Houghton & al. v. Manufacturing Mutual Insurance Co., 8 Metc. 114. And the defendants claimed an instruction to the jury on this question, in conformity with their claim.
    But the court did not so instruct the jury.
    The defendants introduced much evidence to prove, and claimed that they had proved, that the absence of a watchman from the mill from 12 o’clock on Saturday night to 12 o’clock on the succeeding Sunday night, during the night seasons, much increased the risk and hazard; and that there was no such usage as claimed by the plaintiffs in woolen or cotton mills that were watched nights, either in Connecticut or elsewhere.
    And thereupon the defendants claimed, that because there was no watchman in the mill on duty from 12 o’clock on Saturday night of the 7th day of April, 1849, until 12 o’clock on Sunday night of the said 8th day of April, and especially as the mill was burned up, as the defendants claimed, when no watchman was on duty in the mill, the plaintiffs had broken their warranty, and could not recover, notwithstanding any such and all such usages and practice, as the plaintiffs claimed. And the defendants requested the court so to instruct the jury, as matter of law, and the legal construction of the answers to the questions propounded under the 8th interrogatory in the survey.

      But the plaintiffs claimed, that although there was no watchman on duty in the mill from 12 o’clock on night of the 7th day of April, until the mill took fire and was consumed; yet the absence of a watchman, during that time, was justified and permitted, by the fair and legal construction of the terms and language of the survey taken together, and especially by the true and legal meaning of the answers to the 8th interrogatories therein, as determined by the laws of the states of Massachusetts and Connecticut. And they therefore claimed, that if the answers were in law warranties, and not representations merely, they had not broken, but had performed and kept the same, although no such usage or usages as they claimed, had been proved.
    On the subject of the meaning and legal construction of the survey, and the answers to the 8th interrogatories, the court did not charge as the plaintiffs claimed, but did charge the jury, pro forma, that the answers to the several interrogatories in the survey, and especially the answers to the 8th interrogatories, were warranties, and not merely representations, and so made by the terms of the policy; and that it was the duty of the plaintiffs to have complied with them, according to their fair and obvious meaning. That the question in the 8th interrogatory, “Is there a watchman in the mill during the night,” means, is there such watchman through the night? And that the answer, “There is a watchman, nights,” is an affirmative answer to the question, meaning, in this connexion, every night, and through the night. The meaning of the word “nights,” in this answer, means the time of darkness, between the leaving of the mill by the workmen for the day, and their usual time of returning to the mill the next day or morning. By the word “Sabbath,” in the same answer, is meant the space of time on Sundays, from the time when the watchmen, on other days, ordinarily leave the mill in the morning, until their ordinary time of returning in the evening. And therefore, if there was no watchman on duty in the plaintiffs’ mill, from 12 o’clock on Saturday night of 7th April until the next Sunday night at 12 o’clock, or until the mill was discovered to be on fire; and if the mill was left alone, during that time, according to the common practice of the mill; that this was a breach of the plaintiffs’ warranty; and that in such case, the plaintiffs could not recover, unless they had proved to the satisfaction of the jury, that the practice and usage of their mill, was observed, in the present instance, and was a general, uniform and notorious usage and practice at the manufacturing establishments of cotton and woolen goods, in which watchmen were kept. But that such usage need not have been universal. Nor would it be considered as general, if confined to a comparatively small portion of mills, or in a contracted region of country. But if such general and notorious usage was proved, the policy and survey should be construed in reference to it, and the plaintiffs could then recover, otherwise not. And the jury were directed specially to find, whether such general, uniform and notorious usage was proved.
    The jury returned a verdict for the plaintiffs; and upon being inquired of, by the court, how they found the usage submitted to them, to be proved, they replied, that they had not agreed upon that question.
    Whereupon the court returned them to a second consideration of the case, saying to them, that they had disregarded his instructions, and omitted to find a verdict upon the only question of fact submitted to them in the case, viz., the question of general and notorious usage.
    The jury came again into court, and inquired, if they should find that there was such an usage in the county of Berkshire, as the plaintiffs claimed, whether as matter of law, this would amount to a general usage, within the meaning of the charge?
    The court replied, that a general usage necessary to be proved, if it existed at all, existed irrespective of municipal lines such as the boundaries of towns, counties, or states; and that the question was, whether in the opinion of the jury, there was such an usage in the region where the plaintiffs’ mill was situated, as in their opinion, to constitute a general usage. That the question of usage, was a question of fact for them to determine, and must be so extensive and notorious in the general region of country in which the plaintiffs’ mill was situated, as to satisfy them, that it was a general, uniform and notorious usage. And one of the jurors enquired of the court, whether if the jury should find a general usage in the county of Berkshire, in that class of mills which put out their fires at 4 o’clock on Saturday afternoon, as claimed by the plaintiffs, it would be sufficient?

      To which the judge replied, I know of no distinction in classes of mills, I think the usage must be general, uniform and notorious among cotton and woolen mills.
    Whereupon the jury finally rendered their verdict for the defendants; which the court accepted.
    The plaintiffs thereupon moved for a new trial for a misdirection.

      Toucey and Chapman, in support of the motion,
    contended, 1. That the knowledge of the defendants’ agent will affect the company. He had an unlimited power of attorney. There was no notice of any restrictions. Perkins v. Washington Ins. Co. 4 Cowen 645.
    2. That the contract is to be construed by the laws and usages of Massachusetts, where the contract was made, the assured lived and the property was situated; and according to those laws, the answers are representations rather than warranties; and it is sufficient if the statements were made in good faith, and substantially true, and substantially complied with. Hazard, admr. v. New-England Marine Ins. Co. 8 Peters 560. Houghton v. Manufacturers’ Mutual Fire Ins. Co. 8 Metc. 114.
    3. That it is no part of the contract that there should be a full answer. If there was a concealment of a fact material to the risk, by withholding information called for, in such a way as to mislead the insurer, there is a complete and perfect remedy, independently of any stipulation in the policy. The fact and mode of disclosure may be the subject of warranty, or conditions precedent; otherwise, they are collateral.
    4. That there is no warranty, that the mills were watched on the Sabbath, or any part of it. Gates v. Madison County Mutual Ins. Co., 3 Barb. Sup. C. R. 73. S. C. 2 Comst. 48.
    5. That the words are vague, general, ambiguous, and may have divers meanings ; and parol evidence is admissible to shew the sense in which they were used. And therefore, there may be proof of a general or local usage to affect the party with knowledge ; or of the usage or habit of trade, or conduct of an individual, which is known to the person who deals with him; or direct proof of the knowledge and understanding of the parties, by conversation at the time, or admissions afterwards. 1 Stark. Ev. 429. Gray v. Harper, 1 Sto. R. 574. Catlett v. Pacific Ins. Co. 1 Wend. 561. 576. Hartt v. Hammet, 18 Verm. R. 127. Birch v. Depeyster, 1 Stark. Ca. 210. Peisch v. Dickson, 1 Mason 10. 11. 19. 3 Cowen’s Phil. Ev. 1358. 1412. Cole v. Wendel, 8 Johns. R. 90, (2nd ed.) 6 Serg. & R. 171. 2 Greenl. Ev. § 251. and cases cited in notis.

    6. That the charge is erroneous, because it excludes the general usage of Massachusetts, and requires that the usage not only be general in Woolen mills, but in Cotton mills also.
    7. That the court erred in taking the whole case from the jury, when there were several questions which should have been submitted to them. 3 Cowen’s Phil. Ev. 1414. 1420. Jennings v. Sherwood, 8 Conn. R. 122. 127. The United States v. Breed, 1 Sumn. 159. Heald v. Cooper, 8 Greenl. R. 32. Williams v. Gilman, 3 Greenl. R. 276. Rushforth v. Hadfield, 7 East, 224. Gibson v. Culver, 17 Wend. 305. Van Ness v. Packard, 2 Peters, 148. Taylor v. Briggs, 2 Car. & Pa. 525. (12 E. C. L. 245.) Cole v. Wendel, 8 Johns. R. 90. (2nd ed.) Kilgore v. Bulkley, 14 Conn. R. 363. Chitt. Cont. 82, 3.

      Hungerford and T. C. Perkins, contra,
    contended, 1. That the survey is part of the policy, and the plaintiffs’ statements therein contained are warranties on their part. Routledge v. Burrell, 1 H. Bla. 254. Worsley v. Wood, 6 Term R. 710. Alston v. Mechanics Mutual Ins. Co. of Troy, 4 Hill, 329. Burritt v. Saratoga County Mutual Fire Ins. Co. 5 Hill, 188. French v. Chenango Mutual Ins. Co. 7 Hill, 122. Jennings v. Chenango Mutual Ins. Co. 2 Denio, 75. Egan v. Mutual Ins. Co. of City and County of Albany, 5 Denio, 326, Gates v. Madison County Mutual Fire Ins. Co., 2 Comstock, 43. Houghton v. Manufacturers’ Mutual Fire Ins. Co. 8 Metc. 114.
    2. That the plaintiffs, by omitting to continue a watchman at their mill after 12 o’clock on Saturday night, neglected to perform a condition precedent, the performance of which was essential to a right of recovery, and especially as there is much reason to believe, that the presence of the watchman would have prevented the loss. The answers to the questions embraced in the 8th interrogatory clearly explicitly affirm the continuance of the watchman through the night, and until the morning.
    3. That the testimony of the superintendent, that he acquainted Plunkett with the custom, at the plaintiffs’ establishment, to dismiss the watchman at 12 on Saturday night until 12 on the following night, or that Plunkett had knowledge of such usage, was not legally admissible;—because, first, the contract being in writing, all preliminary negotiations and propositions were merged in the written agreement, and no parol evidence could be admitted to vary, controul or contradict the written agreement. As a general principle this is believed to be elementary. 1 Greenl. Ev. p. 398. § 275. and authorities cited. 2 Denio, 75. Secondly, the answers to the questions in the above interrogatory are quite explicit, that the watchman was continued through the night, and left in the morning; and the testimony given by the superintendent and objected to, was, that he told Plunkett, and that Plunkett knew the usage to be, for the watchman to leave at 12 on Saturday nights, in direct opposition to the statement in the survey, which could not lawfully be done.
    4. That the effect of such an alteration of the contract would be, to make the company responsible upon a supposed contract resting partly in writing and partly in parol, while neither Plunkett if he were the defendants’ general agent, nor the company themselves, could make any other insurance than in writing. Marsh. Ins. 198. 1 Phill. Ins. 7. Hughes Ins. 115. Ohio Rep. 148.
    5. That the questions under the 8th interrogatory were put for the express purpose of ascertaining the usage of the mill, in regard to a watchman; the answers purport to state that usage: and the testimony of the superintendent is to disprove the usage stated, and that he so informed the company, in direct opposition to the statement in the policy. And the usage, which was attempted to be established by this testimony, is also in direct opposition to the statement contained in the answer to the 15th interrogatory, where it is said the work continued till 8, P. M. Jennings v. Chenango Mutual Ins. Co. 2 Denio, 75.
    6. That the general usage, supposed and claimed by the

      plaintiffs, was not admissible; because, in the first place, enquiries under the 8th interrogatory and in the 15th interrogatory, are made expressly to ascertain the particular usages of the plaintiffs’ mill; and these are explicitly stated in the answers; and the object of proving the general usage, is, to protect the plaintiffs in departing from the particular usages stated, by shewing a different general usage, and the plaintiffs’ conformity with that general usage; which cannot lawfully be done, as it would entirely overrule the express terms of the contract. Secondly, no usage can be admitted to contradict the explicit terms of a written contract, or to controul or vary them. Schooner Reeside, 2 Sumn. 567. Rogers v. Mechanics Ins. Co. 1 Sto. R. 603. 607. Macomber v. Parker, 13 Pick. 175. 14 Pick. 141. Eager v. Atlantic Ins. Co. 14 Pick. 141. Allen v. Dykers, 3 Hill, 593. Yates v. Pym, 6 Taun. 446. Thirdly, if the particular usages of the plaintiffs’ establishment were as represented, it was of no consequence what the general usage was.
    7. That the instruction of the judge in regard to the usage, was correct, with the single qualification, that it was somewhat too favourable for the plaintiffs. Sto. Cont. § 14. Schooner Reeside, 2 Sumn. 567. Rogers v. Mechanics Ins. Co. 1 Sto. R. 603. 607. Leach v. Perkins, 5 Shop. (17 Maine) 462. Crosby v. Fitch, 12 Conn. R. 410.
    The usage, allowing it to exist, has no tendency to prove, that the language used in the policy was otherwise used than in its common acceptation. It does not prove, nor have a tendency so to do, that any word used in the policy, or all taken together, have any other signification in the county of Berkshire, or where the usage was claimed to exist, than everywhere else. The usage is directly incompatible with the language used in the questions and answers embraced in the 8th, and also in the 15th, interrogatory, taken in their general acceptation; and the usage in no respect tends to divert their meaning from their common import, or shew that they were ever understood otherwise.
    Further, it is so indefinite, that the law cannot recognise it as a valid usage; because, in the first place, it must be so certain and uniform, that each party contracting in reference to it, may from the usage know the rights and the obligations which the contract confers or imposes; whereas, in this case, no person contracting as watchman, can from the usage know when he may leave on Saturday night at 12 o’clock, or when he must stay after that time, or leave before. Secondly, an operative contracting in reference to the usage, can never determine when he may leave at 4 o’clock in the afternoon of Saturday, or must remain longer. Thirdly, the usage, if not to be construed as if the word generally were inserted in the latter branch, is incongruous and inconsistent with itself.
   Ellsworth, J.

We have delayed the decision of this case, that we might more fully reflect upon the important questions presented, and come to a decision that would be satisfactory to ourselves.

We shall not follow the learned counsel, over all the ground taken by them, in the argument; nor comment upon all the law of insurance which they have so earnestly pressed upon our notice, but only such, as we consider applicable and important in arriving at a just decision of the case in hand.

The contract of insurance, as all know, is a contract of indemnity, upon the terms and conditions specified in the policy of insurance. It is a peculiar contract—and one of hazard purely. The insurer undertakes, for a comparatively small premium, to guaranty the insured against loss or damage, upon the exact terms and conditions agreed on, and upon no other. The party called upon to pay in case of loss, may therefore justly insist upon the fulfillment of these terms; and if the plaintiffs can now bring themselves, fairly, within the conditions of the policy, as they insist they can, they are entitled to recover for the loss; but if they cannot, then they must admit they cannot recover; however well-meaning and upright, and however confident in their view of the terms and conditions of the policy. We may not make a new contract for the parties; but rather it is our duty to enforce and carry out one already made.

What that contract is, upon a just interpretation of the facts and provisions of this survey and policy, we consider entirely clear and certain.

But before entering upon this question, we remark upon another, much dwelt upon in the argument, and of general importance ; the distinction between a representation and a warranty. The former precedes, and is no part of the contract of insurance, and need be only materially true ; the latter is a part of the contract and policy, and must be exactly and literally fulfilled, or else the contract is broken and the policy becomes void. And although this distinction is not important, as we conceive, in this instance, nor the other point so much urged, that the policy is to be construed by the laws of Massachusetts, and not by the laws of this state, (though we think they are the same, in a case situated as this is,) it may not be unimportant to observe, that the above distinction,, if applied, in all its stringency and technical exactness, to fire policies, must, ere long, present questions of unusual interest and importance.

Fire policies are issued upon certain interrogatories and answers, denominated the survey, often extending over two or more pages, and embracing, not only the present, but the future condition of things, and the future conduct of the insured; while marine policies are usually taken out for a single voyage, or if on time, for one of short duration. We are by no means confident that representations in surveys, preceding the issuing of fire policies, extending, as they do, to the present and future condition of the property about to be insured, have been considered as technical warranties, to be true to the letter, for a long series of years, and not rather as representations, to be, at the time and thereafter, substantially exact and true. Nor are we certain, that a mere reference to these representations made in the body of the policy, in order to explain the rights and obligations of the parties, does, necessarily, change their character from representations to warranties. Fire policies are taken out in mutual offices, for a term of years, and in ordinary insurance companies, for one year or a longer period. If now all the interrogatories and answers, or survey, as it is called, are to be held to be warranties, to be kept to the letter during the continuance of the policy, and not in the nature of representations to be kept in substance and effect; and if this vital change in what is only preliminary, is to be brought about, by a mere reference, in the body of the policy, to the survey; then there is a principle of the law of marine insurance being applied to policies of a different character, which must ere long, as we have said, present questions of unusual interest and importance. If, on the other hand, the survey is held to be a representation or agreement, extending to the future, as well as the present, condition of things; then the insured will have no ground of complaint, as in that case, he will be holden only to a substantial compliance with his own agreement, which is but just and right.

This question has engaged the attention of courts elsewhere. In Houghton v. the Manufacturers Mutual Fire Insurance Company, 8 Metc. 114., there were 36 printed questions annexed to the policy—among them were these: “What provision is made for extinguishing fire by engines, pumps, water-casks, buckets or otherwise?” Answer—“Water-casks are placed in each room containing water, and pails are kept in each room. There is a force-pump inside to convey water into the second and third stories.” “Is a watch kept constantly in the building? If no watch is kept constantly, state what is the arrangement respecting it.” Answer—“No watch is kept in or about the building; but the mill is examined thirty minutes after work.” “During what hours is the factory worked?” Answer—“Five o’clock A. M. to 8½ o’clock P. M. Sometimes, extra work will be done in the night.” The plaintiffs then claimed, that the policy and application were to be construed together, in order to determine what was the contract of the parties—that the statements made in the application, and especially the answers to the questions, were stipulations in the nature of conditions precedent, for the truth of the matter stated, so far as they were material to the risk; and if not true, although not wilfully false, nor made with intent to deceive, they nevertheless discharge the underwriters; that so far as these answers stated usages, practices and modes of conducting business at that factory, in the nature of precautions against fires, and tending to diminish the risk of fire, the insured were bound to observe all such usages and modes of conducting their business; and continue to use all such precautions; and if they failed so to do, the underwriters were discharged.

The court held, 1. That the policy, by the manner in which it refers in terms to the application and representations, does legally adopt and embody them, as part of the contract, to the same effect as if they were recited and set forth at large in the policy. 2. That the application and various answers contained in it, being termed "representations” in the policy, are rather to be regarded as having the legal effect of representations than of warranties, as understood in the law of marine insurance, though partaking, in some measure, of the character of both. They are like representations in requiring that the facts stated shall be substantially complied with, but not like warranties in requiring an exact and literal compliance.

These answers were held to be embodied in the policy as a part of the contract of insurance, and they would hence, strictly, be warranties, in marine policies, to be satisfied only by an exact and literal performance. But this consequence is avoided, by holding the answers to be representations, although for the future, and although incorporated in the policy itself. They were obligatory only, as an executory undertaking, satisfied by performance in substance and effect.

In the Farmers Insurance and Loan Company v. Snyder, 16 Wend. 481., the question was, whether a certain survey referred to, thus, in the policy: “more particularly described in application and survey furnished by themselves (the plaintiffs), filed, No. 938, in the office of the underwriters"—was a representation, or a warranty. It was adjudged to be a part of the contract, and therefore not a representation collateral and preparatory to the contract; yet the chancellor, in giving the opinion of the court, would not admit it was a warranty. His language is:—“I have doubts whether the principle of construing every matter of mere description contained in the body of the policy, although not material to the risk, into an express warranty, which is to be literally complied with, should be applied, with the same strictness, to fire policies.” P. 493.

In Alston v. The Mechanics and Mutual Insurance Company of Troy, 4 Hill 330., the chancellor, in giving the opinion of the court, goes at great length into the distinction between representations and warranties. He utterly repudiates the idea of a promissory representation, and insists that no such thing is recognised, by any respectable authority whatever; while at the same time, if the promissory representation is embodied in the policy, so as to be a part of the contract, it will be binding as something in the nature of a warranty, or a representation, as in Massachusetts, to be substantially and materially true. P. 342.

In Wood v. The Hartford Fire Insurance Company, 13 Conn. R. 533. 545. this court seem to have applied the strict technical rules of marine insurance to fire policies, and they accordingly held, that language in a policy as follows: “upon the one undivided half of the paper-mill owned by the plaintiff in Westville in New-Haven," under the circumstances, made a warranty, and that the mill must continue to be a paper-mill, neither more nor less, or the policy would immediately become void. This application of the rule, if the court concurred in the views expressed by its organ, seems to maintain the entire similarity between marine and fire policies. And this is undoubtedly true, if it be conceded, that the description and reference in the policy, makes a warranty. But we are not aware, that the court meant to hold, that in all cases, every thing which gets into a policy, as description or mere reference, whether survey or answers, is an exact warranty, and not representation. This would be a very broad principle of law, of great importance, demanding mature and careful consideration, before we sanction it, and one which we are not called upon to decide, in this case; because, however the general principle may be, here there is no question of the kind for decision.

It is certain that in this case, the plaintiffs have not kept their agreement in substance or effect. And besides, the parties have agreed, in the 18th condition of the policy, that, the survey shall be treated as a warranty.

We would add further, that the general question is elaborately discussed in Jennings v. Chenango County Mutual Insurance Company, 2 Denio 75., and many cases are commented on. The words of reference there in the body of the policy are: Reference being had to the application &c. for a more particular description of the conditions annexed, as forming a part of this policy.” The court held, that as the survey was made a part of the policy, then, by the acknowledged rule of marine insurance, it became a warranty, and must be literally true, and so continue. Many cases are likewise cited, in the learned opinion of the court, given by Jewett, J. going to shew, that most, if not all, the evidence offered and relied upon, by the plaintiffs, in the case before us was not admissible or important,—such as prior or contemporaneous conversation or agreements between the parties, the knowledge of the agent—local usages, and any and every circumstance or collateral proof, intended to qualify or contradict the written contract, in the survey and policy.

The same views are presented, by the chancellor, in giving the opinion of the court already referred to in Aston v. The Mechanics Mutual Insurance Company.

We come, then, to the immediate question before us. What is the contract, as to the particular in question, in this policy of insurance? We say it is, in our judgment, an exact, clear and certain engagement, by the insured, that they will keep a watchman in their mill through the hours of every night in the week, from 8 P. M,, to the usual hour of commencing work in the morning. If this is the true engagement of the plaintiffs, then they cannot recover on the policy; for it is conceded by them, that they had no watchman in the mill after 12 o’clock Saturday night, and the mill was burnt down between 3 and 4 o’clock the next morning; which doubtless would not have happened, had the watchman remained, as he should have done. If we have the precise contract which the parties chose to make for themselves, and there be no imperfection or ambiguity in the language used to express the meaning of the parties; clearly we have no right to depart from the language, and travel out of the contract, to see if the parties did not, after all, mean something different from what is written. Why, we ask, resort to inferior and secondary evidence, such as inferences from supposed usages, or circumstances or the knowledge, or the talk, of the parties, at the time of entering into the contract? These may be proper enough, where there is ambiguity or uncertainty in the language used, as when technical and scientific words are used, or terms of art, or trade, or foreign language, or phrases, which require an interpretation or explanation, in order to know what the parties meant. But this is not the case. And hence, the numerous authorities and elementary writers read by the plaintiffs’ counsel, shewing that collateral evidence may be, in certain cases, resorted to, to interpret the terms used, are quite inapplicable and unimportant. See Stoever v. Whitman's lessee, 6 Binn. 416. Allen v. Dykers, 3 Hill, 593. 596. The Schooner Reeside, 2 Sumn, 567. 569. Macomber v. Parker, 13 Pick. 175. 182.

The rule is well established, that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversation, or circumstances, or usages &c., in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme. Higginson v. Dall, 13 Mass. R. 96. Whitney v. Haven, Id. 172. Wiggin v. Boardman, 14 Mass. R. 12. Cheriot v. Barker, 2 Johns. R. 346. Atherton v. Brown, 14 Mass. R. 152. Weston v. Emes, 1 Taun. 115. Flinn v. Tobin 1 Mood. & Malk. 367. Parks v. General Interest Insurance Co. 5 Pick. 34. Barber v. Brace, 3 Conn. R. 9.

We must first be convinced that there is doubt and ambiguity in the writing, or we cannot admit inferior evidence to explain or contradict what is written. This principle constitutes the great difficulty in the plaintiffs’ case. We know not how to get around it, or to surmount it; and we must not reject or evade it. The plaintiffs must first satisfy us, as we say, that the contract is imperfect and ambiguous, or we cannot, with any consistency and fairness, help them to subject the defendants.

The defendants insist, that the contract is not only certain, but just as it should be made, and as they understood it was to be made; that they expected to have a watch, each night in the week, and through the night; and if we are to go into reasons, that, during Saturday and Sunday nights, the mill is as much exposed to spontaneous combustion certainly, and more exposed from attempts by incendiaries, than at other times in the week; and they earnestly insist, that the plaintiffs shall not erase from the policy the half of Saturday and Sunday nights. We acknowledge that we feel pressed by this view of the case, and we find no answer to it in the argument of the plaintiffs’ counsel. As the counsel so earnestly insist we are in error, we look again to see if we are; but we find none. The language in the 8th interrogatory and answers, (for here is the imperfection and mistake, if anywhere,) used by the insured, leaves room for hesitation or doubt. If language can express thought, it is expressed in this instance. The survey begins “plain and definite answers are requested to each of the following interrogatories.” “Please be particular.” Then the interrogatory is—“Is there a watchman in the mill during the night?” The word “during” is to be construed with reference to the subject matter. If one were to promise another, that he would do some act, such as execute a deed, or pay a sum of money, during the month of January, the word means a point of time between the first and last days of January:—but, in a deed conveying land to a woman during her widowhood, it means the whole time, so long as the grantee shall remain unmarried. So a soldier enlisting into the army during the war, is to serve throughout the war. But if we say, a man was killed during the war, or that a certain battle was fought during the war, we mean some point of time between the commencement and end of the war. So in this survey, what did the underwriters aim at, in this interrogatory? We think they sought to know, if there was a watch kept up all the night, not apart of it, or for one period of time in the hours of the night. But the interrogatory proceeds: “Is there a good watch-clock?” Here we find something that is to speak for every hour of the night. It is well known, that a watch-clock is so constructed, that at an exact time in each hour of the night, the watchman can insert a plug into a hole that just then appears through the face of the clock, and after that, it is covered and concealed, so that the plug cannot, by any possibility, be inserted without destroying the clock itself; and so the clock will disclose the fatal truth, in the morning. If the watchman has slept or absented himself, he is betrayed. Does not this prove the meaning of the word “ During?” Look now at the answer. “There is a watchman, nights—no clock—bell is struck every hour from 8 P. M. till it rings for work in the morning.” Every hour in the night then is included in this survey.

The interrogatory, up to this point, having embraced each and every hour of the night, proceeds: “Is the mill left alone, at any time after the watchman goes off duty in the morning, till he returns to his charge at evening? The answer is “only at meal-times, and on the Sabbath, and other days, when the mill does not run.” We feel confident this last interrogatory relates only to day-time; for the words are, “after the watchman goes off duty in the morning till he returns to his charge at evening.” We cannot think, that any part of the night is excepted from the vigilance of the watchman.

Is there any more ground for the plaintiffs’ other claim, that one half of Saturday and Sunday nights are to be excluded from the watch? We see nothing that indicates such an exception. The language of the parties does not; the reason of the thing does not. The language is general—during the night. What nights? all nights—one as much as another. And why draw a distinction, contrary to the language in its plain import—and the reason of the thing too? Why is a watch required any night? For the same reason that exists for every night. And there is an additional reason, as we have already mentioned, for a watch during Saturday and Sunday nights. If however, in this particular, there be a shade of difference, it is too slight and unimportant for us to proceed upon, and impose a restriction upon language, which is general and unqualified.

But it is said, the second part of the interrogatory and answer, shows, that these portions of the two nights are to be excepted. To us it appears quite the reverse. It is obvious, the second part of the interrogatory has nothing to do with a watch, during the night. The first part is expressly occupied about the night; and, as we may say, exhausts that topic and subject matter; and so does its answer. The second part of the interrogatory then follows; and the inquiry is, as to the time after the watchman goes off duty in the morning till he returns to his charge at evening-“i. e. is the mill ever left alone in the day time?” The answer is, in substance and meaning, never, except at meal-times, and the day of the Sabbath and other days. It does not reach back to the first part of the interrogatory, as is claimed, departing from the subject matter of enquiry, to say what is done in night season, either one night or another. It is what is done in the day-time? The nights have been already disposed of. We say, then, the 8th interrogatory covers every night, and every hour of the night; every day, and every hour of the day; and that the answer, by excepting only meal-times, the day time of the Sabbath and other days when no work is done, leaves a clear engagement that at all other times, there is to be a watchman or workmen in the mill.

This engagement, as we interpret it, might have been considered, by the underwriters, as important, if not indispensable, in giving terms of insurance; and we cannot, therefore, disregard it, in meting out even justice to the contending parties.

According to these views, then, it is obvious, that the superior court was correct in the course pursued; and that no sound objection lies to the principles of law laid down to the jury.

If indeed the survey was to be taken in connexion with a general custom, claimed to prevail in mills of this character, then too there was no error; for such evidence was received, by the court; and the jury, under the instructions of the court, found there was no such custom in fact. On what possible ground the plaintiffs could claim, that evidence of a practice in their particular mill, or usage within any defined locality, as in the county of Berkshire, &c. even if brought to the knowledge of the defendants’ agent, (and his authority to bind the defendants, by such knowledge, we do not decide,) should be received, and when received, vary the existing contract, we know not. All previous and cotemporaneous conversation, as a part of the final contract, is wholly unimportant and inadmissible; nor is it admissible as matter of representation; for the survey contains that; and the survey may not be contradicted, by either party. We repeat, the parties made their own contract in the case of this mill; and so long as the terms of it are clear and certain, it must put an end to all strife about what was intended.

It is claimed by the plaintiffs’ counsel, that the statute of Massachusetts respecting the observance of the Sabbath, has a bearing upon the construction to be put on the language of the survey. We do not so understand it. We do not believe there is any statute in Massachusetts making it unlawful to keep a watchman in this mill according to the survey, as we interpret it; and if there was, the contract to keep such a watch every night, and every hour of the night, is too plain to be denied; and is, besides, in the nature of a precedent condition, which must be fulfilled, or the underwriters are discharged.

We do not advise a new trial.

In this opinion the other judges concurred.

New trial not to be granted.