In Kelsey v. Western, 2 N. Y., 500, at 507, it was said that if there was no express promise by the devisee, an action at law would not lie to recover the legacy against the devisee.

Without going over the whole subject of charges on estates, we may say that in this case there is nothing in the will to make the defendant personally liable. The claim in suit was, with other claims including debts, charged on the real and personal estate. There was no definite sum named, subject to which the devisee and legatee was to take. A further charge for the support of minor children was made. One-half of the estate was given to a son and the other half for life or widowhood to defendant. Defendant has become owner of the part given to the son subject to the support of the minor children. This is not then a case where, on accepting a devise, a devisee agrees to pay a certain definite charge on the land, and hence becomes personally liable.

We do not see therefore how a judgment against defendant personally could properly be rendered.

Costs seem to be properly awarded, as the judgment is not for a sum of money only. Sections 1835, 3246. Whether § 1824 applies. inasmuch as the defendant is devisee or assignee of the devisee, we need not inquire. If she were only administratrix there might be some difficulty. But the title to one-half in fee and to the other half for life seems to be in her, subject to the charge for support of the children and to the charge in litigation. We think that the judgment should be modified so far as it makes a personal liability against defendant, and as so modified affirmed, without costs.

LANDON and MAYHAM, JJ., concur.

JAMES B. O'BRIEN, Resp't, v. THE PRESCOTT INS. Co., App'lt. (Supreme Court, General Term, Third Department, Filed July 7, 1890.) 1. INSURANCE (FIRE)-WAIVER OF CONDITION.

An insurance policy not under seal, among other things, provided that it should be void if the building became vacant unless consent in writing was endorsed in writing upon the policy: it also provided that the company should not be bound by any statement made to or by any agent, not contained in the policy; also that no part of the express conditions could be waived except in writing signed by the secretary. The premises became vacant and plaintiff so informed the general agent in his town, and inquired how it would be in case of fire, to which the agent replied that it was all right so long as plaintiff had notified him. Held, that this was a waiver of the conditions and that the general agent had power to do this. 2. SAME-FRAUD.

Where fraud in making an over estimate of the loss is provided for as a ground of forfeiture of a policy, such fraud must be wilful and intentional.

3. SAME ASSIGNMENT OF POLICY.

Where a policy did not declare that an assignment of it without the company's consent should make it void, a parol assignment by the insured to plaintiff is sufficient.

APPEAL from judgment in favor of plaintiff, entered on the report of a referee.

John H. Gleason, (D. Cady Herrick, of counsel) for resp't; A. Sawyer, for app'lt.

MAYHAM, J.-This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiff for $1,147.48 and costs in an action upon a policy of insurance against loss and damage by fire.

The defense set up is that the assured violated the provisions of the policy, and that, therefore, the defendant is not liable.

The policy was issued on the 3d of January, 1882, for one year for $1,100 framed house, and one hundred dollars ($100) on ice box, benches, block and counters therein, and cash premium per year, $13.30-100, and was payable to Whitbeck & Green, mortgagees, in case of loss, as their interest might appear.

The policy had been renewed from time to time until the time of the fire, December 28, 1885.

It was exccuted by the president and secretary of the company, not under seal, and countersigned at West Troy by J. H. Hulsapple, agent, and contained the provision that: "This policy shall become void unless consent in writing is endorsed by the company hereon in each of the following instances, viz.:”

Then follow numerous conditions, provisions and qualifications, among which are the following, which are claimed by the appellant to have been violated by the assured :

'If any building herein described be or become vacant or unoccupied for the purposes indicated in this contract.

"Where a fire has occurred injuring the property herein described, the assured shall use all practicable means to save and protect the same, and shall give immediate notice of the loss in writing to the company.

"A particular statement of the loss shall be rendered to this company at its office within thirty days after the fire, signed and sworn to by the assured."

Then follows in this article a very minute circumstantial statement in detail of the condition of the property, the cause of the fire, condition of the title and incumbrances, amount of loss, and many other facts, circumstances and conditions intended doubtless to work a forfeiture of the policy if not performed. The policy also contained the following provisions: "Any fraud or attempt at fraud, or any misrepresentation in any statement touching the loss, or any false swearing on the part of the assured or his agents in any examination, or in the proof of loss or otherwise, shall cause a forfeiture of all claims to this company upon this policy." "And this company shall not be bound upon this policy by any act of or statement made to or by any agent or other person which is not contained in this policy, or in any written part above mentioned."

At the conclusion of these numerous conditions the policy contains the following conditions or provisions:

"This policy is made and accepted upon the above express conditions; no part whereof can be waived except in writing signed by the secretary."

The defendant on this appeal insists that the plaintiff violated the provisions of the policy:

First. In allowing the insured building to remain vacant;

Second. In not giving timely notice of the loss according to the conditions of the policy.;

Third. In giving a false and exaggerated statement of the value of the building at the time of the fire and of the extent of the loss.

Whatever may be said of the impolicy, not to say iniquity of the technical, and generally unread provisions sometimes incorporated in insurance policies, by which the unwary policy holder is lulled into a false security and induced to pay premiums exacted from time to time, only to be aroused from his delusions on the happening of a loss, by notification that he has violated some, to him unknown, provisions of the policy by which his claim for indemnity is forfeited; still in an action upon the policy it is the duty of the court to regard the letter of the bond and enforce it, like any other contract, according to its terms and provisions, applying to it the same rule of construction by which other contracts are interpreted.

The first question then is, was the fact that the building was unoccupied at the time of the fire, and had been from the middle of the preceding November, without the written consent of the company or its agent, such a violation of the terms of this policy as to render it void?

The referee finds that at the time of the fire the building was not occupied for the purposes indicated in the policy of insurance.

That the policy contained no consent in writing endorsed thereon by the company or its agent that such building should remain vacant or unoccupied, and that no written consent of any kind was ever given by the company or its agent that such building might be vacant or unoccupied.

The referee also finds that in November the son and agent of the assured notified John Hulsapple, the local agent of the defendant at West Troy, that the building insured was vacant, and inquired how it would be in case of fire, and that Hulsapple said that it was all right as long as he notified the agent, and he also finds that at the time Hulsapple was the general agent of the defendant at West Troy, and transacted the general business of the defendant. On these facts, the plaintiff insists that Hulsapple had the power as between the company and the assured to waive any of the special conditions of the policy, and that by this declaration to the plaintiff's agent he did effectually waive the procuring of the written consent of the company, and thereby estopped the company from taking the objection that the consent of the company had not been endorsed in writing by the secretary on the policy. In support of this position we are referred to the case of Pechner V. Phoenix Insurance Company, 65 N. Y., 195, where Dwight, Chief Justice, discusses elaborately the powers of general agents of insurance companies, as to their power to bind the company by their acts and declarations, and also as to their ability by parol to waive a condition in writing, in a policy not under seal. One of the questions in that case was whether a general agent of the company could by parol waive this condition in the policy: "If

the insured shall have, or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written herein, then, and in every such case, the policy shall be void.”

The agent issuing this policy resided in Elmira; afterwards additional insurance was placed on the goods with the oral consent of the agent not written in the policy. A loss having ensued in the trial of an action upon the policy, the above facts were in substance proved, and the judge declined on motion by defendant's counsel, to direct a verdict for the defendant, and the jury found a verdict for the plaintiff.

The learned judge, in discussing the question raised by these facts, uses this language: "The whole contest is upon the validity or invalidity of the contracts, and the sole point is, can a condition precedent be waived by words or acts of the parties?

"This is simply an inquiry whether a party can by his own act be precluded from setting up a condition inconsistent with his act to the injury of an opposite party, whom he has thus misled."

The learned judge, after discussing the question at great length, on page 207, sums up his conclusion as follows:

"As a result of all the cases, and of sound principle, I think it clear that a condition required by a written instrument not under seal, that an act be performed, or evidenced, may be waived by parol, and that from necessity the acts going to establish the waiver may be shown by parol evidence", and the learned judge follows this conclusion by this remark: "There is every reason why this doctrine should be applied to insurance policies.

In May on Insurance, § 143, the learned author, in discussing this question, uses this language: "The tendency of the courts is daily becoming more decided to hold that such agent may waive any of the conditions of the policy and bind the company by such waiver, and that his promises and acts, both of omission and commission, representations, statements and assurances made within the scope of his agency * * * may be set up by the insured, either on the ground of waiver or of estoppel in answer to a claim of forfeiture." In the case of Insurance Company v. Wilkinson, 13 Wall., U. S., 235, the court in discussing the power of a general agent of an insurance company acting at a distance from the home office, say: "The powers of an agent are, prima facie, co-extensive with the business interest of the company intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals."

In Steen v. Niagara Fire Insurance Co., 89 N. Y., 326, the policy contained a clause substantially like the one in this case in reference to the insured property becoming unoccupied, and on being applied to, the general agent wrote in the body of the policy a permit, but not in strict conformity to the terms of the policy, and on being applied to on the occasion of another vacancy, said it was all right, the company was held bound by his statement upon that subject.

In Messelback v. Norman, as treasurer, etc., 46 Hun, 418; 11

N. Y. State Rep., 823, this court held that Bennett, who assumed to waive a condition in a policy, was not a general agent, and had not therefore the power, but says, "Had he been, he might have waived the condition," citing Steen v. Insurance Company, 89 N. Y., 315. In this case it is difficult to conceive of a more general agency than was showed in Hulsapple. He issued policies, and adjusted losses, renewed policies, and seemed invested with authority at West Troy to do any act that the company could have done themselves.

"The power of such an agent must in the absence of such special restrictions be deemed to include the power to modify contracts made by him, dispense with conditions and do such acts from time to time as are necessary to prevent a forfeiture of policies as a consequence of change of ownership, situation or occupation of the insured property."

"Insurance companies organized under the laws of one state may, and often do, carry on business in other states. They cannot conduct their business except through agents, and it is a reasonable and just inference that agents entrusted with the power to make original contracts of insurance have also the power to modify them as occasion requires.' Walsh v. Hartford Fire Insurance Company, 73 N. Y., 9.

These remarks would seem to be peculiarly applicable to this

case.

The defendant is a foreign company. Its business was conducted at West Troy, by Hulsapple as a general agent. Communication with the home office in Boston was inconvenient, and the general agent informed the agent of the assured unnecessary; even if the policy required the consent in writing of the secretary the assured had a right to assume on the assurance of the company through its general agent, that notice to him was all that was necessary, that the company would make the requisite consent through the secretary; any other construction would put it in the power of the company by the neglect or refusal of the secretary to act, to nullify the contract at pleasure, after the receipt of all the benefits by way of premiums. Notice therefore to the company by the assured was all that he could do towards procuring the consent, and when informed by the company that it was all that was necessary, he had a right to rely upon that information.

In this respect the case at bar differs from the Walsh case, 73 N. Y., 9, as in that case the endorsement was to be on the policy and by the presentation of the policy by the assured to the agent the endorsement could have been procured.

The referee having found the facts according to the evidence of the plaintiff, we think he was right in his conclusion of law that the condition as to the vacancy of the building was waived.

The referee also found that by the declaration and assurance given by the agent Hulsapple to the assured and his agent, on being notified the next day after the fire of the loss, and his agreement to furnish the proof and statement that it would be all right, was a sufficient notice to the company and a waiver of strict