#### In the Matter of the Will of M. L. WILSON.

(Filed 11 October, 1944.)

Estates § 9e: Insurance § 24(1—

A life tenant of realty has an insurable interest therein, and nothing else appearing, such tenant for life is entitled to the full amount collected upon a policy of insurance thereon taken out by him, and the remainder-men have no interest in such insurance.

Appeal by claimants from Rousseau, J., at April Term, 1944, of Mitchell.

This proceeding began as a caveat to the will of M. L. Wilson, and pending the hearing, by agreement of parties, it was extended to embrace the present controversy. The facts are not in dispute.

M. L. Wilson was in possession of certain lands of his deceased wife as tenant by curtesy, having therein a life estate; while the heirs at law of the deceased wife, including the present claimants, were remainder-*506men. During bis life tenancy, Wilson insured tbe dwelling on tbe premises for $2,000 and tbe bousebold contents for $500, loss payable to him. Tbe bouse and contents were destroyed by fire, and tbe loss damage was collected by. Wilson and deposited in tbe bank in bis own name.

Wilson died, leaving a will in wbicb be gave all bis personal property, in general terms, to bis son, Lane A. Wilson, without specific reference to tbe insurance money. He assigned several reasons for preferring bis son; amongst others, that be expected Lane to take care of him during tbe remainder of bis life, and that bis deceased wife bad intended to give, him tbe borne in Bakersville, but died before carrying out this intention.

There was found in tbe bank tbe major part of tbe insurance money, to wit, $2,000, wbicb went into tbe bands of tbe executor. Of this amount, Mrs. Ethel Blevins and Winifred and Barbara Garvin claim two-thirds — that is, $1,333.30; Mrs. Blevins as dáughter and heir at law of Mrs. Wilson, and tbe others as tbe heirs at law of Yiola Garvin, a daughter of Mrs. Wilson. Tbe other third, it is conceded, belongs to Lane A. Wilson, but as heir at law, not as legatee.

Under tbe agreement, claim for tbe said amount was filed with tbe executor of Wilson's will; and under stipulations of pertinent facts, tbe court proceeded to tbe bearing. From tbe ensuing adverse judgment, finding that tbe insurance money went under tbe will and that they bad no interest therein, claimants appealed.

John C. McBee and Watson •& Fonts for petitioners, appellants.

Charles Hutchins and G. P. Randolph for appellee.

Seawell, J.

Tbe contentions of tbe appealing claimants, called caveators in tbe record, may be stated succinctly as follows:

Tbe insurance, under tbe circumstances outlined, must be presumed to have been made in tbe interest of all those having an interest in tbe property — both tbe tenant for life, who took out tbe insurance, and tbe remaindermen. Therefore, tbe loss paid must stand for tbe realty and go to tbe claimants, as heirs at law, in proportion to their interests; and tbe life tenancy having fallen in without any use having been made of tbe insurance, they are now entitled to their respective shares. They contend that this view is strengthened by tbe fact that their estate is one of greater dignity than that of tbe life tenant, and perhaps of greater money value, and that tbe amount of insurance taken out was apparently sufficient to cover tbe actual value of tbe property, both to tbe life tenant and to tbe remaindermen. It is further pointed out that tbe *507testator made no specific reference to tbe insurance money in bis will, and tbat it is found in tbe bank intact. Moreover, it is argued tbat tbe policy itself designates tbe property as “occupied by owner as family dwelling” and tbat, since there is nothing to distinguish him as life tenant, it must have been tbe intent of tbe parties to tbe contract of insurance to insure tbe whole property for tbe interest of both tbe life tenant and tbe remaindermen.

In support of this position', counsel cites In re Haxall v. Shippen, Leigh’s Reports (Va.), Vol. X, 536—a case in many respects factually similar to tbe case at bar, and which might be at least persuasive, if tbe question were open here; but we fear tbat it is not.

Houck v. Ins. Co., 198 N. C., 303, 151 S. E., 628, cited in appellants’ brief, is, we think, eliminated as an authority in this case by tbe statement of fact on p. 304:

> “. . . tbe said N. E. Houck informed tbe agent of tbe defendant company of tbe true conditions of tbe title to said land and bouse, and requested said agent to issue a policy which would protect all persons who were interested in said house, in the event the same should be damaged or destroyed by fire."

It is to be noted tbat tbe controversy in tbat case arose over a restriction in tbe policy to tbe effect tbat tbe policy should be void “if tbe insured was not tbe owner in fee simple of said land, or was not tbe sole and unconditional owner of said bouse” (loe. cit. id., p. 304) ; and the' issue turned on whether tbe insurance company bad knowledge of tbe facts; also, on tbe insurability of plaintiff’s interest; and there was no controversy over tbe issue presented here.

We think tbe legal question raised in tbe present case was definitely settled in Stockton v. Maney, 212 N. C., 231, 193 S. E., 137, in which tbe factual situation seems practically identical with tbat now presented in tbe case at bar. In tbat case, Mr. Justice Connor (who also wrote tbe opinion in Houck v. Ins. Co., supra), speaking for tbe Court, said:

> “As such tenant for life, James W. Burleson bad an insurable interest in tbe dwelling bouse which was located on one of tbe lots situate in tbe town of Barnardsville and which was owned by Miria E. Burleson in fee at her death. 26 C. J., p. 34, sec. 17.

> “Nothing else appearing (Houck v. Ins. Co., 198 N. C., 305, 15 S. E., 628; 21 C. J., p. 954, sec. 92 [9]), tbe policy of insurance which James W. Burleson procured to be issued to him on tbe dwelling bouse, insured only bis interest in said dwelling bouse. It did not insure tbe plaintifE, as remainderman. "When tbe dwelling bouse was destroyed by fire, tbe amount due under tbe policy was paid to James W. Burleson, to cover bis loss. Tbe plaintiff bad no interest in said amount, and therefore, in *508no event, in tbe lots purchased by James W. Burleson and paid for by him out of said amount. See Batts v. Sullivan, 182 N. C., 129, 108 S. E., 511.”

The cautious statement found in this quotation — “nothing else appearing”- — no doubt had reference to fundamental differences in fact or law, such as appear in the Houck case, supra, and cannot be expanded to cover minor distinctions which do not affect the principle.

Notwithstanding the able manner in which the arguments were presented, we are unable to avoid the conclusion that the case at bar is controlled by Stockton v. Maney, supra, and, therefore, the judgment of the court below must be

Affirmed.