In concluding, the author, of May on Insurance (4th ed.) in section 448, note a, says:' “ But the better view appears to be that the remainder-man has no interest in such insurance in the absence of' some contract or duty giving him rights therein.” .In Harrison v. Pepper (166 Mass. 288) a life tenant had insured to the frill value of the property; the insurance had been paid and the remainderman sought to recover from him the amount received over and above the value of his life interest upon the ground that the recovery over and above such interest was as trustee for him. It was there held that the remainderman had no interest whatever in the insurance, notwithstanding the amount received was greater than the fife interest. Morton, J., in writing for a Unanimous court says: “ In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to> keep the premises insured for the benefit of the remainderman *77Each can insure his own interest, but in the absence of any stipulation or agreement neither has any claim upon the proceeds of the other’s policy any more than in the case of mortgagor and mortgagee or lessor and lessee or vendor and vendee. * * * It is not averred and does not appear that the defendant intended to make a present of the proceeds of the policy to the plaintiff or was insuring for her benefit. Whether the amount of indemnity received by the defendant for her loss was more or less than the valne of her interest cannot affect the plaintiff. Nor can the defendant be converted into a trustee for the plaintiff by the mere fact that the amount which she received was equal to the full value of the house. It was paid to and received by her as indemnity for the loss which she had sustained and, as already observed, does not stand in the place of the property insured.”
In Waring v. Indemnity Fire Ins. Co. (45, N. Y. 606) it was held that a person might insure in his own name the property of another for the benefit of the owner, but it was there held that such must have been the intention of the person effecting the insurance. In Berry v. A. C. Ins. Co. (132 N. Y. 49) it was held that a tenant who had agreed verbally with his landlord to keep the demised premises insured has an insurable interest in the property and may insure in his own name to the extent of the amount agreed to be insured, and when no amount is named his interest is the full value. Brown, J., in writing the opinion of the court, seems to place the right to recover the full value of the premises solely upon the liability of the tenant under his contract to insure.
In Niblo v. North American Fire Insurance Co. (1 Sandf. 552), it is held that a tenant for a year has an insurable interest in buildings demised to him, but he cannot recover the full value of such buildings in case of loss. In Agricultural Ins. Co. v. Yates (10 Ky. Law Repr. 984) it is held, that where the owner of property, insured as hers absolutely, has only a life estate, she can recover only the value of her interest in the buildings destroyed, and not their full value.
These authorities would seem to me to negative the right of these plaintiffs to recover the full value of the property destroyed. They are limited, I think, to their insurable interest as life tenants.
*78What, then, was the insurable interest of the life tenants % If a fee owner insures farm buildings the measure of his recovery in case of fire is not the difference in value of the farm with the buildings and without. His right is to recover the value of the buildings,, and in determining that value the principal factor is the cost of rebuilding. If this building had been insured for the. benefit of the remainderman and life tenants as their interests might appear, I know of only one rule by which to apportion the insurance when recovered as between them. That apportionment must clearly be made undér the rule of the court and the Northampton tables. If the insurance were for the full value of the building the life tenant would receive that proportion of the insurance as would represent his life interest under that rule. When he insures his interest only why should a different rule govern — a different measure of damage be applied ? ' If such a building were to be restored, the life tenant would have an equitable duty to furnish such a proportion of the cost of restoration as would be represented by the value of his life estate as thus estimated. Such then would seem to me a more equitable rule of damage to be applied in determining the plaintiffs* loss in the case at bar. From the evidence the jury should have determined the value of that building, and from the rule of the court and the Northampton tables the value'of the life estate could be mathematically and, I think, legally obtained. For these reasons. I think a new trial should be granted.
Edwards, J,, concurred.
Judgment affirmed, with costs.