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brew v. Kinnebrew, 35 Ala. 638. The intention of the maker is the controlling inquiry, and that intention is to be gathered primarily from the language of the instrument itself. Dunn v. Bank, 2 Ala. 150. The intention cannot be proved by a witness speaking directly thereto. But this does not, in cases of inapt phraseology,--such as the present instrument discloses,--preclude proof of instructions given to the draughtsman, in reference to the nature of the paper he was expected to prepare. In Green v. Proude, 1 Mod. 117, 3 Keb. 310, the paper bad striking characteristics of a deed; but the court said: “Here being directions given to make a will, and a person sent for to that end and purpose, this is a good will.” Speaking of this case, Jarman (1 Bigelow's Ed. p. 19) says: "The court seems to have been influenced by the cir. cumstances that the person who prepared it was instructed to make a will." In Wareham v. Sellers, 9 Gill & J.98, the court decided that testimony should have been received of “conversations of the deceased, made at the time of executing the said paper, and from the other circumstances, that the said P.S. made and executed the said paper as and for his last will and testament, and intended it as such." In this case the controversy was whether the paper was a deed or a will. To the same effect is Witherspoon v. Witherspoon, 2 McCord, 520. So all the attending circumstances may be put in proof as aids in determining whether the maker intended the paper should operate as a deed or a will, whenever it is so framed as to postpone actual enjoyment under it until the death of the maker. Gillham v. Mustin, 42 Ala. 365; Daniel v. Hill, 52 Ala. 430; Campbell v. Gilbert, 57 Ala. 569; Jordan v. Jordan, 65 Ala. 301; Rice v. Rice, 68 Ala. 216; Lee v. Shivers, 70 Ala. 288; 1 Bigelow, Jarm. Wills, 25; Gage v. Gage, 12 N. H. 371; Mealing v. Pace, 14 Ga. 596, 630; Symmes v. Arnold, 10 Ga. 506; Jackson v. Jackson, 6 Dana, 257. Another pertinent inquiry. If a paper cannot have operation as a deed, but may as a will, then in doubtful cases we should pronounce it a will, utres magis caleat. Bigelow, Jarm. Wills, 21, 22, 24, 25; Attorney General v. Jones, 3 Price, 379; Gage v. Gage, 12 N. H. 3 71; Symmes v. Arnold, 10 Ga. 506.

The instrument sought to be established as a will is in form a nondescript. It clearly shows on its face that the donee or grantee was to have no actual enjoyment of the property--no usufruct-during the life of the maker. Its language is: “I do hereby reserve the use, control, and consumption of the same to myself for and during my natural life.” We hold that the paper, on its face, falls within the indeterminate class, which, according to circumstances, may be pronounced a deed or a will. We also hold that, on the trial of the issue, it was competent to prove that the maker was without lineal or other very near relatives; that she was attached to the donee, who was a member of her household; that she sent for the draughtsman of the paper, and employed him to write her will, and that, in pursuance of such employment, he wrote the paper in controversy, and that she signed it with a knowledge of its contents, and had it attested; that she did not deliver it, but had it placed in an envelope, and indorsed, “Not to be opened till after my death;” and that she carefully preserved it in such envelope until her death. Now, all these facts and circumstances, if proven and believed, were competent and proper for the consideration of the jury in determining the issue of devisavit vel non. And the fact, if believed, that the paper had never been delivered, and therefore could not take effect as a deed, should also be considered in arriving at the maker's intention.

In excluding from contestants' exceptive allegation the averment that the paper is a deed, the probate court cominitted a technical error. That was the real issue in the case. This ruling, however, did the contestants no injury, as they had the benefit of the defense it sought to interpose. 3 Brick. Dig. p. 405, $ 20.

Under our rulings, if the question were properly raised, the witness Davis should not have been permitted to testify that his intention in framing the paper was to make it a will. Intention is an inferential fact, and, unless it is announced at the time the act is done, it is not susceptible of direct proof. Id. p. 438, § 479 et seq. The objection to this testimony, however, was that it was “parol evidence, introduced to vary and change a written instrument." There was nothing in this objection, and it was rightly overruled. Id. p. 444, $ 574.

We have shown that the opinion of the witness Davis that the paper was a will, or that he intended it for a will, was illegal evidence, if properly objected to. Being admitted, however, it was competent to rebut it. It was attempted to be rebutted in this case not by disproof of the fact, but by testimony tending and intended to discredit the witness. A letter proved to have been written by him, and which stated that Mrs. Hornsby had died intestate, was, after laying the proper predicate, offered for this purpose. This letter, it was contended, contained a prior contradictory statement by the witness to that part of his testimony in which he had said the paper was intended as a will. Offered as it was, it should have been received. 1 Brick. Dig. p. 889, § 1225. In the absence of proof by Davis that he intended the paper for a will, the letter would have been illegal evidence. 2 Brick. Dig. p. 549, 8 126; 3 Brick. Dig. p. 828, § 101.

The paper over which the present contention arose contains the following clause: And this [the execution of the paper] is done in part to do away with all need or necessity of taking out letters of administration after my death." This clause is a circumstance which the jury may look at and consider in determining whether Mrs. Hornsby intended that Julia M. Hall should take or enjoy any interest during the former's life. It is not conclusive, but must be weighed with the other evidence. It would probably be more weighty if it made provision for Mrs. Hornsby's entire estate. Attempts-fruitless, of course_are sometimes made to dispense with administration, even in documents that are unmistakably testamentary.

Charge No. 6, asked by contestants, should have been given. The remaining charges asked by them were, in the light of the evidence, calculated to confuse or mislead, and were rightly refused on that account.

We have now considered all the questions we deem necessary. In a very few of the many rulings the probate court erred.

Reversed and remanded.


(Supreme Court of Alabama. February 22, 1889.) 1. INSURANCE-ACTION ON POLICY-PLEADING-BREACH OF CONDITION.

In an action on an insurance policy, the plea set out a provision of the policy that it should become void if the assured was not the sole and unconditional owner of the property, or if the building stood on ground not owned by him in fee-simple, or if his interest was not truly stated, unless the consent of the company was indorsed thereon; and averred that the policy was issued to the assured on property described therein as “his;” that when the insurance was effected and the loss occurred he had but a leasehold in the land, and held the property under an executory contract of purchase, which provided that if he failed to make either of the stipulated payments the contract should determine at the vendor's option; and further alleged that the assured had paid nothing when the policy issued, and had no

other title. Held a good defense. 2. Same-DENIAL OF WAIVER.

It was not necessary that the plea should negative the indorsement of consent on

the policy. Such consent is proper matter for replication. 8. SAME-PLEADING AGENCY.

A replication alleging that the assured applied for insurance to A., an insurance agent at a place named, and soon after received the policy sued on, and paid him the premium, and did not pay him commissions or any other remunerations, and that the only transactions between the assured and the company were those had with A., does not sufficiently plead A.'s agency for the company.


Where plaintiff, on the overruling of a demurrer to the plea which presents a good defense, or on sustaining a demurrer to the replication, declines to plead further, a judgment rendered for defendant will be affirmed. Appeal from circuit court, Montgomery county; John P. HUBBARD, Judge.

Action by George G. Brown against the Commercial Fire Insurance Company on an insurance policy issued by defendant to one Sage, who assigned it to plaintiff. A demurrer to the pleas was overruled, a demurrer to the replication sustained, and, plaintiff declining to plead further, judgment was entered for defendant. Plaintiff appeals.

Gordon MacDonald, Marks & Massie aud W. G. Hutcheson, for appellant. Tompkins, London & Troy, for appellee.

CLOPTON, J. The material and decisive defense urged to the action, which is founded on a policy of fire insurance, is that the assured failed to disclose the true ownership of the property insured. This defense is set up by several different pleas, varying somewbat in form and particularity of the averments as to the interest and title of the assured, but substantially the same in their legal effect. We shall take for consideration the one which avers the facts in the fullest manner, and with greatest particularity. The plea alleges that the policy contained the following condition and stipulation: “This policy shall become void unless consent in writing is indorsed by the company hereon, in each of the following instances, viz., if the assured is not the sole and unconditional owner of the property, or if any building intended to be insured stands on ground not owned in fee-simple by the assured; or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, is not truly stated in this policy." The object of such stipulation in a policy is to protect the company against taking risks on property for an amount disproportionate to the value of the interest of the assured, on which the company relies to a great extent as an incentive to use all reasonable precautions to avoid the destruction of the property. Being incorporated in the policy, it is in the nature of a condition precedent, which must be substantially conformed with to entitle the assured to recover. When the true ownership is not required to be fully stated by the conditions of the policy, generally it will be sufficient if the assured has an insurable interest; but when such requirement is the condition of the policy it becomes a material part of the contract, and all rights under it are forfeited by non-compliance. A failure, in such case, to disclose truly the interest in the property cannot be regarded an immaterial circumstance. By express stipulation the parties make it material, and the validity of the contract dependent on a compliance with the condition. The assured, by accepting a policy in which such condition is incorporated, becomes bound thereby, and when he claims to enforce the contract, and receive its benefits, he is estopped from denying his assent to the stipulation. Lasher y. Insurance Co., 86 N. Y. 423; Mers v. Insurance Co., 68 Mo. 127; Swan v. Insurance Co., 96 Pa. St. 37; Adema v. Insurance Co., 36 La. Ann. 660; Insurance Co. V. Johnston, 80 Ala. 467, 2 South. Rep. 125.

The plea avers that the policy of insurance was issued to the assured on property described therein as his. This imports that it was issued to him as the sole and unconditional owner of the property. Lasher v. Insurance Co., supra; Mers v. Insurance Co., supra. It further avers that the assured had, at the time the insurance was effected, and at the time of the destruction of the property, only a leasehold interest in the ground on which the building insured stood, and that he held the property insured under an executory contract of purchase by which the vendor, who is the plaintiff in this action, agreed and undertook to convey and assure to him the property upon the payment of $7,000, and by which it was also provided that, if the assured failed

to make the payments of the purchase money, or either of them, the contract should, at the option of the vendor, be forfeited and determined. The plea also alleges that the assured had paid no part of the purchase money at the time of the issuance of the policy, and that he had no other title to the property. Assuming the truth of the averments of the plea, they clearly show that the assured was not the sole and unconditional owner; that he did not own in fee-simple the ground on which the building stood; and that his interest in the property was not truly stated,-a non-compliance with the con. dition and stipulation of the policy which avoids the contract, unless it was waived in some mode binding the company. It is not necessary that the plea should negative the indorsement of a written consent on the policy. Such consent would be a waiver of the condition, and is proper matter of replication to a plea alleging a breach of the condition. There is no error in overruling the demurrer.

On the demurrer being overruled, the plaintiff filed two replications to the special pleas, each of which sets up substantially the same matter in avoidance of the alleged breach of the contract. A demurrer to the replication was sustained. It is contended that the replications sufficiently aver and set up that the assured disclosed, at the time of making the application for insurance, to the agent of the defendant all the facts and circumstances connected with his title, ownership, and interest in the property. If such be the effect of the replications, when properly interpreted, they would show a waiver of the condition, and constitute a full answer to the plea. If the assured fully and truly disclosed his interest and ownership to an agent of the defendant authorized to take applications for insurance, deliver policies, and receive premiums, the company will not be permitted to take advantage of an oversight or wrongful act of its own agent to avoid the policy. Williamson v. Insurance Ass'n, 84 Ala. 106, 4 South. Rep. 36.

One of the grounds of demurrer is that the replications do not allege that the person to whom the disclosure was made was the agent of the defendant. The replications substantially allege the following facts: That the assured applied for insurance to Benjamin Kimball, an insurance agent in St. Louis, Mo. Shortly after making the application he received from Kimball the policy sued on, and paid him the premium of $25; and that neither he, nor any one for him, paid Kimball commissions or any other remuneration; and that the only transactions between the assured and defendant were those had with Kimball. It is insisted that an express averment of agency is not necessary, and that it is sufficient if facts constituting an agency are averred. This may be conceded; but when only facts are set forth as constituting an agency, their sufficiency must be tested by the legal requirements of good pleading. All pleading will be construed most strongly against the pleader; the presumption being that he states bis cause of action or matter of defense most favorably for himself; and, if the pleading fairly admits of two constructions, that will be adopted which is least beneficial to him. City Council v. Hughes, 65 Ala. 201. When agency, wbich, like any other fact, may be proved by circumstantial evidence, is the subject-matter of proof, it is sufficient if the circumstances reasonably authorize its inference. But when agency is the matter of pleading, and, withont expressly averring it, the pleader relies on averments of facts as constituting an agency, the averments should be of such nature and character that agency follows as a conclusion of law; such as would justify the court, if the facts are proved, in giving an affirmative charge; and such as do not fairly admit of any other construction. It is not a verred that Kimball previously acted for defendant in any similar transactions; nor that application was made to him as agent of defendant; nor that defendant paid his commissions; nor any facts or circumstances which show that defendant recognized him as an agent in this or other transactions, or that defendant held hiin out, or that he held himself out by permission of defendant, as

clothed with the authority of an agent. The averment that he was an insurance agent does not necessarily import that he was the agent of defendant, or any other particular company. The averments of the replications fairly and consistently admit of the construction that Kimball was the agent of the assured to procure insurance for him on the most advantageous terms, without reference to any particular company.

We have specially considered the fifth plea, and the replications thereto, because it sets forth more fully and particularly the matter of defense, and have declared that it presents a full defense. The demurrer to the replications having been sustained as to all the grounds of demurrer, the plaintiff refused to plead further. This renders the sufficiency or insulliciency of the other pleas immaterial. When there is a plea which presents a full and valid defense, and plaintiff declines to plead further on a demurrer to the plea being overruled, or a dem urrer to a replication to the plea being sustained, and the court thereupon renders judgment for the defendant, the judgment will be affirmed. Guilford v. Kendall, 42 Ala. 651. Affirmed.

SANDERS et al. 0. CASSADY et al.

(Supreme Court of Alabama. February 27, 1889.) 1. MORTGAGES-ASSIGNMENT-REQUISITES TO Pass LEGAL TITLE.

In Alabama, an assignment of a mortgage, to be effectual to convey the mortgagee's legal title and enable the assignee to maintain ejectment, must be by such à conveyance in form and words as is required to convey the legal title to land in


A deed made in the pame of the auctioneer at a sale under a power in a mortgage,

instead of in the name of the donee of the power, does not convey the legal title. 3. SAME-EJECTMENT BY ASSIGNEE-ISSUES.

In ejectment by a mortgagee or his assignee, it is only the amount of the mortgage debt which the statute (Code Ala. 1886, $ 2707) authorizes to be put in issue; and hence there is no error in refusing to allow defendants to put in issue the amount of debt from the mortgagee to the assignee plaintiff. Appeal from circuit court, Henry county; J. A. CORBITT, Special Judge.

This was a statutory real action in the nature of ejectment, bronght by the appellees, Cassady & Blackwell, as assignees of a mortgage, against McNeily & Cureton, and sought to recover a certain store-house and lot, specifically described in the coinplaint. On the trial, the appellants, G. W. Sanders and J. W. Williams, who are the original mortgagees, and the assignors of the plaintiffs, were, on their own motion, made parties defendant, as landlords of the defendants, McNealy & Cureton. The mortgage, which is the foundation of the present action, was made by one Bryan and wife to Sanders and Williams, and conveyed therein the store-house and lot in controversy. The mortgage was transferred for valuable consideration to plaintiffs, and the assignment written on the back of the mortgage. The mortgage was never paid, and, after the law day had passed, the assignees (plaintiffs) had the premises sold, under the power of sale contained in the mortgage, by an auctioneer; and a deed, proper in form and stipulation, was made by the auctioneer to plaintiffs. The assignees now bring this action, and allege as sufficient ground for the maintenance of the suit their being the assignees of the original mortgagees, and the fact that they were purchasers at the mortgage sale, and hold the auctioneer's deed. There was verdict and judgment for plaintiffs, and defendants appeal.

J. F. Roper, for appellants. J. W. Foster, for appellees.

SOMERVILLE, J. To sustain a recovery in this case, which is an action of ejectment under the statute, the plaintiffs were required to show in them

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