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Kalna v Westchester Fire Insurance Company.
Fire Insurance -Policy-Pro-Rating Loss-ConditionsPleading.

A provision of a policy of fire insurance that, "unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage occurring while the insured shall have any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy," is not affected so as to permit other insurance contrary to said provision by a subsequent clause that, “It is also a condition of this contract that if there is other insurance upon the property damaged this company shall be liable only for such proportion of any direct loss or damage by lightning (except as above stated) as the amount hereby insured bears to the whole amount insured thereon whether such other insurance contains a similar clause or not."

The provision of the policy first above quoted is not waived by the fixing of the amount of the loss on the basis of other insurance under a "non-waiver" agreement entered into by the parties merely for the purpose of fixing the amount of the loss for which defendant would be liable if liable at all, when the agreement specifically provided that any action taken by either of the parties to determine the amount of the loss should not be construed as a waiver of any of the rights of the parties, and that the acts of the defendant in endeavoring to ascertain the amount of the loss should not be considered a waiver of any of the conditions of the policy.

It is immaterial that the affidavit of defense does not set forth whether plaintiff's other insurance was written before or after the taking out of the policy on which the action was instituted, when the policy sued on provided against liability on the part of the defendant "for loss or damage occurring while the insured shall have any other contract of insurance."

Rule for Judgment for Want of a Sufficient Affidavit of Defense. No. 290 June Term, 1920. C. P. Fayette County.

Goldsmith & Goldsmith, for plaintiff.
Crow, Shelby & Tabor, for defendant.

Van SWEARINGEN, P. J., July 27, 1920.—The rule in this case is for judgment for want of a sufficient affidavit of defense. On August 2, 1919, plaintiff took out a policy of insurance in defendant company for $3,000 on his stock of merchandise and fixtures, and ten days later the property was destroyed by fire.

On September 30, 1919, the parties entered into a non-waiver agreement for the purpose of determining the amount of loss and damage sustained by plaintiff by reason of the fire, the material parts of which agreement were as follows:

The said Westchester Fire Insurance Company does not admit nor deny liability for such claim for loss under the policy herein mentioned.

It is hereby stipulated and agreed by and between the said Joseph Kalna and the said Westchester Fire Insurance Company that any action taken by any representative of either party hereto to ascertain the amount of such claim for loss, or to investigate any circumstances connected therewith, or matters pertaining thereto, shall not be construed as a waiver of any of the rights of the parties to this agreement which do now or may hereafter exist under the policy of insurance herein mentioned.

The intent of this agreement is to reserve all the legal rights of the parties to this agreement, and it is agreed that the acts of the said Insurance Company or its representatives in endeavoring to ascertain the amount of the loss claimed for by appraisement or otherwise shall not be considered a waiver of any of the conditions of the policy referred to herein, nor as admitting or denying any liability under said policy by reason of the loss herein mentioned.

It is further stipulated and agreed that the amount of the loss, whether ascertained by mutual agreement or by appraisers and an umpire as provided in said policy of insurance, shall be taken as final and conclusive and fixed and shall not be denied or questioned by either of the parties hereto in any future proceeding or suit.

The amount of the loss for which defendant is liable, if liable at all, was

Kalna v Westchester Fire Insurance Company.

fixed by agreement of the parties at $1,800, and plaintiff then brought this action to recover that amount, together with interest thereon from November 30, 1919.

Plaintiff's policy contained the following clause : “Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage occurring (a) while the insured shall have any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy.” In the affidavit of defense, as amended it is alleged that "plaintiff did carry insurance, on the property covered by the policy issued by the defendant, in another insurance company, to wit, a policy in the sum of $2,000 in the Continental Insurance Company, during and while the said plaintiff was insured in the company of the defendant, and said Continental Insurance Company policy was in full force and effect during the period covered by the policy of the said defendant.” There was the following stipulation in defendant's policy in connection with a lightning clause: “It is also a condition of this contract that if there is other insurance upon the property damaged this company shall be liable only for such proportion of any direct loss or damage by lighting (except as above stated) as the amount hereby insured bears to the whole amount insured thereon whether such other insurance contains a similar clause or not."

It is contended by plaintiff's counsel that the last above quoted stipulation in the policy impliedly permitted other insurance, and, consequently, that the allegation in the affidavit of defense as to other insurance is ineffectual for any purpose, and that plaintiff is entitled to judgment. We cannot agree with that contention. The policy prohibits other insurance "unless otherwise provided by agreement in writing” added thereto, and no such agreement in writing was added thereto. It is urged by plaintiff's counsel that the affidavit of defense does not set forth whether plaintiff's policy in the Continental Insurance Company was written before or after the taking out of the policy on which this action was instituted. That is immaterial in this case, the policy sued on providing against liability on the part of the defendant "for loss or damage occurring while the insured shall have any other contract of insurance.” Attention is called by plaintiff's counsel to the fact that no copy of the Continental Insurance Company's policy is attached to the affidavit of defense, as required by section 5 of the Practice Act of May 14, 1915, P. L. 483. But there was no motion to have the affidavit of defense stricken from the record for not conforming to the provisions of the act, as is authorized by section 21 thereof. It is urged by plaintiff's counsel that the fixing of the amount of the loss on the basis of other insurance was a waiver of defense on that ground. We do not think so. The non-waiver agreement was entered into by the parties merely to have fixed the amount of the loss which defendant would be liable for if liable at all. The agreement did not constitute a waiver of any legal right of either party. It specifically provided that any action taken by either of the parties to determine the amount of the loss should not be construed as a waiver of any of the rights of the parties, and that the acts of the defendant in endeavoring to ascertain the amount of the loss should not be considered a waiver of any of the conditions of the policy. We are of opinion that the affidavit of defense is sufficient to prevent judgment.

And now, July 27, 1920, for the reasons set forth in the opinion herewith filed, the rule for judgment for want of a sufficient affidavit of defense is discharged, at plaintiff's cost.

Donnelly's Estate.

Decrees--Decedent's Estate-Opening Mistake Province of the Court

Estoppel.

Accounts filed should be opened to allow the petitioner, the widow of the decedent, to show that mistakes were made in accounting for property which she claims in her individual right, and which has been in her possession continuously since the decedent's death in 1906, where the administrator had claimed possession of said property and the Court had inadvertently ordered their distribution.

We cannot be convinced by an argument that Court records when made are to remain forever, and therefore inviolate. Of

course decree cannot be violated; but this does not mean that a Court of Equity cannot change it, when it is shown that a mistake has been made, and that a refusal would be inequitable. Decree in former audit in a decedent's estate opened, the account restated and distribution of paintings and personal property made to widow where there were no questions of fact involved. Petitioner was not estopped even where several years had elapsed from entering the decree, of which she had received no notice.

a

No. 112 February Term, 1908.

O. C. Allegheny

Decree of distribution. County.

D. C. Jennings and Thomas S. Brown, for petitioner.
Watson & Freeman, for estate.
Sterrett & Acheson and Charles A. Jones, for creditor.

TRIMBLE, J., September 1, 1920.—The question involved is, whether final decrees on accounts filed should be opened and the petitioner, the widow of the decedent, allowed to show that mistakes were made in accounting for property which she claims in her individual right, and which has been in her possession continuously since the decedent's death in 1906. The facts are these:

1. Charles Donnelly, the husband of the petitioner, died testate on the fifth day of December, 1906, having previously executed his last will and testament on the twenty-fifth day of March, 1896, the ninth paragraph of which is as follows: "I desire that our homestead located at the corner of South Negley and Fifth Avenues, in the City of Pittsburgh, Pennsylvania, shall not be sold during the lifetime of my wife, Alice, but that she will have the use of it, and all the furniture and pictures in the same, for and during her life, and shall keep it so furnished as a home for her and all the children who are unmarried.” The second item, of the codicil dated June 27th, 1899, is as follows: "I hereby give and bequeath unto my wife Alice R. Donnelly, in absolute property all the household furniture and all the pictures and paintings of which I may die possessed.” The decedent had been married twice. The homestead mentioned in his will belonged to his first wife and their children. Subsequently he purchased the interest of one of the children, and thereby became possessed of a one-sixth interest in the same.

2. Letters testamentary were granted to his daughter, his widow, Alice R. Donnelly, the petitioner, and Frank F. Nicola. These three began the administration of the trust and continued it until the 11th of December, 1907, when by petition to the Orphans' Court of this County they presented their resignations, which were accepted by the Court, and they were ordered to file an account of their administration of the trust as executors within fifteen days. On the same day as this order of Court was made the Commonwealth Trust Company was appointed administrator c. t. a. d. b. n. and directed by the Court "to take immediate charge of the assets of the estate, subject to the final adjustment on the filing of the final account of the executors.” Subsequent to this order, on the 3rd day of January, 1908, the executors filed an inventory and appraisement which purports to have been made at the request of the executrices and executor, and in which the paintings involved in this litigation were appraised in the sum of

Donnelly's Estate.

$107,186.25. At the time this appraisement was made it is an undisputed fact that Mrs. Donnelly, the petitioner, protested against inventorying or appraising any paintings and household effects, and claimed affirmatively that they belonged to her in her individual right. On the same day when the inventory was filed, the decedent's daughter and Frank F. Nicola, two of the fiduciaries, filed a first and final account, which was not signed by Alice R. Donnelly. In one of the schedules attached to the account they charge themselves with this item: “Paintings as per inventory filed $107, 186. 25.” Nicola alone administered the estate, Mrs. Donnelly taking no part.

3. The accountants, for themselves and Mrs. Donnelly, co-executrix, claimed credit for compensation as follows: "Five per cent. of the amount of the gross charges, which compensation includes cash advanced by F. F. Nicola, one of the accountants, for administration expenses $61,922.19.” Mrs. Donnelly did not file a separate account, neither did she except to that of her co-executors, charging all of them with the paintings which she now claims. The counsel for the Donnelly estate also represented Mrs. Donnelly, but it does not appear any place that any of them ever had any notice from Mrs. Donnelly that she claimed these paintings, until after the decree of distribution was made in this Court. Exceptions were filed by the administrator c. t. a. d. b. n. on February 11th, 1908, which attacked the amount of the commissions of the accountants. This account was audited on February 18th and 20th, 1908, and was adjourned from that time until July 3rd, 1913, when there was a final hearing. On August 23rd, 1913 findings of fact and conclusions of law were filed wherein the executors commissions were reduced from $61,922.19 to the sum of $25,000, and a decree entered accordingly. Exceptions to this decree were filed by Alice R. Donnelly. These were dismissed and the case appealed to the Supreme Court by her and the other executrix and executor, and the decree of this Court was sustained. See Estate of Charles Donnelly, 246 Pa., 308.

4. The paintings were loaned after the decedent's death by Alice R. Donnelly, the claimant, to the Carnegie Art Galleries, in the City of Pittsburgh, for exhibition, and were in that institution when the Commonwealth Trust Company was appointed administrator c. t. a. d. b. n. The officers of the art galleries were notified by the administrator that these paintings belonged to the estate, and it was decided by the administrator, without consulting Mrs. Donnelly, or notifying her of its claim of ownership at any time, to leave them in the care of that institution temporarily, for the reason, as they alleged, that they had been bequeathed to Mrs. Donnelly, and that if it should so happen that it would be not necessary to sell them to satisfy the claims of creditors they could be delivered to her. The estate is insolvent.

5. At No. 157 November Termi, 1908, on November 16th, 1908, Alice R. Donnelly, by petition to this Court alleged that she had been one of the executors of the decedent's estate, that she qualified and performed the duties until discharged, and continues in paragraph 4 in these words: “That the first and final account of Alice R. Donnelly, Bessie C. Donnelly, and Frank F. Nicola, executors and trustees under the last will and testament of Charles Donnelly, deceased, was duly filed * *,” and in paragraph 5, “that the executors and trustees in said account charged themselves, inter alia, with the receipt of cash deposited with the executors by heirs for family expenses and for temporary use by the executors *” and in paragraph 9, “The assets of the estate in the hands of the executors and testamentary trustees were turned over to the Commonwealth Trust Company upon its appointment as administrator c. t. a. d. b. n., and succeeding trustee, and there now is in possession of said trust company assets of an amount more than sufficient to pay your petitioners the amounts deposited by them with the executors and testamentary trustees,” and the petitioner then disclaims any intention of electing or not electing to take under the provisions

* *

Donnelly's Estate.

of the decedent's will and prays for an order returning to them certain moneys which they loaned to the executors for the purpose of managing the estate. The answer to this petition incorporates the account of Mrs. Donnelly's co-executrix and executor, which they had filed, but no copy of the account was attached.

6. On March 5th, 1909, the administrator c. t. a. d. b. n. filed its first and partial account of the administration from December 11th, 1907, to February 28th, 1909, in which account it charges itself with items not delivered or receipted for, inter alia, as follows: “Household furniture, Fifth Avenue, contents of stable, Fifth Avenue, Paintings.” This account came on for audit on April 23rd, 1909, and was concluded on May 10th, 1909. At this audit Alice R. Donnelly presented her claim setting forth by her petition above referred to in paragraph five for money advanced to the executors. The testimony shows that the trust officer of the Commonwealth Trust Company gave evidence that the paintings were at the Carnegie Institute, and that he did not believe it would be wise to sell the paintings at that time, that he had had an offer for one of them and that Mrs. Donnelly indignantly declined to consider a sale.

7. A second and partial account of the administrator c. t. a. d. b. n. including its administration from March 1st, 1909, to April 13th, 1913, was filed May 2nd, 1913, at No. 129 June Term, 1913 and the administrator therein charged itself with the personal property in dispute as in the first account except in the second account the paintings are shown to be in the Carnegie Art Gallery. At the audit of this second account, on June 20th, 1913, for the first time Mrs. Donnelly, with the other members of decedent's family, through her counsel, Mr. Jennings, now deceased, claimed the paintings bequeathed to her by the will, after counsel for the estate stated to the Court, that, “There is a lot of valuable pictures belonging to the Donnelly estate which we have been unable to sell, but we still have possession of them. They are out at the Carnegie Institute. They appear in the inventory at $107,000. We have only recently again renewed our efforts to sell them, and have been advised that it would be worse than useless to attempt to do so at this time. The only reason we have not sold them is that we have not found a purchaser.” To this Mr. Jennings replied: "We claim they do not belong to the administrator, but belong to the family of decedent." The claim for the money which the widow and children advanced to the executors was allowed by decree of this Court, filed on July 9th, 1909, and on appeal to the Supreme Court was sustained. See Donnelly estate, supra.

8. The administrator c. t. a. d. b. n. filed its third and partial account charging itself with these paintings at No. 134 December Term, 1916, to which Alice R. Donnelly filed exceptions, claiming the paintings were her property, and had not been the property of the decedent's estate, and had been continually in her possession and control since she became the owner thereof, whereupon the administrator presented its petition to the Court at the number and term at which the executors had filed their account, alleging that the paintings had been taken from the Carnegie Art Gallery without its consent, and were in the home and possession of the exceptant Alice R. Donnelly, and prayed that possession of said paintings should be delivered by this Court to the petitioner. Her answer to this is that she objected to the filing of the inventory and the inclusion in the assets of the estate of Charles ‘Donnelly of the personal property in the residence at the corner of Fifth and S. Negley Avenue, Pittsburgh, and the paintings, and protested against including these at the time of the appraisement, and then claimed that she was the owner of the paintings and all of the furniture except such as belonged to the children of decedent's first wife. She denied that she accounted and alleged that the account was filed by the active executors without consultation with her and against her objection. She further alleged that she loaned the collection of paintings in the Art Museum of the Carnegie Institute for exhibition. She denied the title of the estate to the paintings and

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