In construing insurance policies courts are governed by the same general rules which are applicable to other written contracts. That is to say, it is the duty of the court to adopt that construction of the policy which, in its judgment, shall best correspond with the intention of the parties, which is to be ascertained from the whole instrument, the nature of the property to which the language of the policy is to be applied, the purposes for which property is ordinarily to be used, its situation, and the manner in which it is usually kept. These general rules are elementary, and are recognized and approved in numerous textbooks and decisions.
In the present case the property insured mainly consisted of a dwelling-house and a barn connected therewith, which were totally destroyed by fire during the term of the policy; and the principal question is whether the temporary absence of the occupant, on account of ill health, for more than thirty days and without the defendants' assent, avoided the policy, under a condition therein that it should be void and inoperative "if the premises hereby insured shall become vacant by the removal of the owner or occupant and so remain vacant for more than thirty days" without the assent of the insurers.
This condition is to have a reasonable interpretation, according the ordinary acceptation of the language used. In other words, it is to be construed as it would usually be understood by persons in general reading and acting upon it. Stupetski v. Insurance Co., 43 Mich. 373, — 38 Am. Rep. 195, 196. When this is done, it is plain that a temporary absence of the character *Page 441 appearing in this case cannot be held to be within the condition, matter of law. "The question what constitutes vacancy or non-occupation is one of law and fact, to be determined by the trier of the facts," and "must be decided in view of all the circumstances of the case" (Carr v. Insurance Co.,60 N.H. 513, 520); and therefore, while we think that to an ordinary mind the terms "absence" and "removal," when applied to the occupant of a dwelling-house, do not convey the same but a widely different meaning, and that according to the common understanding persons leaving their houses on visits, excursions, or other temporary occasions, do not remove from or cease to occupy them, it is sufficient for the present purpose to say that, as matter of law, in order to avoid the defendants' policy by reason the condition therein against vacancy, the insured premises must not only have been vacant for more than thirty days without their assent, but the vacancy must have been occasioned "by the removal of the . . . occupant" therefrom (Cummins v. Insurance Co., 67 N.Y. 260, — 23 Am. Rep. 111; Herrman v. Insurance Co., 81 N.Y. 184, — 37 Am. Rep. 488; Stupetski v. Insurance Co., supra), and that the questions of vacancy and removal were for the determination of the jury under proper instructions.
And at this point and in this connection it may properly be observed that there is no real conflict of doctrine between the case in hand and Sleeper v. Insurance Co., 56 N.H. 401, or Moore v. Insurance Co., 64 N.H. 140. In the former, the facts were essentially different; while in the latter, the controlling phrase, "vacant by removal," was not in the condition, and the facts were almost exactly the reverse of those before us.
The fact that, unknown to the plaintiffs in interest, one of the rules of the New Hampshire Board of Underwriters (which it is said makes rules and rates for the guidance of local insurance agents) provides "that dwellings temporarily vacated by families leaving furniture therein shall not be considered as occupied unless some person is left in charge of the premises and residing therein," is quite immaterial. The decision of the case does not hinge upon this rule. The question arising upon the facts is, what does the phrase "vacant by the removal of the owner or occupant" mean as used in the policy? The test is not what the defendants may have understood the meaning of those words to be when used in the business of fire insurance; but, as before stated in substance, they must be taken in their ordinary sense as commonly used and understood, and as the insured understood and could properly understand them, from the meaning which they convey to the common mind. Herrman v. Insurance Co., supra. "In the absence of competent evidence to the contrary, . . . the language of the contract must be understood to convey the ordinary and usual meaning of the English language as used *Page 442 in the community where the parties live." Kendall v. Green, 67 N.H. 557,562.
The contention that the policy had become inoperative at the time of the loss, because prior thereto the executor had settled his administration account and delivered possession of the insured property to the legatees its the absolute owners thereof, is not tenable.
The policy is to be construed as an open one, for account of whom it may concern. Its issuance to "Uriel Rollins' estate" was, in effect, an insurance of the property of the estate covered by it to the parties having a pecuniary interest therein; and as the estate proved to be solvent, so that none of the insured property was required for the payment of debts, the legatees under Rollins' will, who are the plaintiffs in interest in this suit, are to be regarded as the parties for whose benefit the insurance was effected, and accordingly, as owners of the property at the time the loss occurred, they are entitled to recover such insurance. The fact that they were not the unconditional owners at the date of the issuance of the policy did not preclude them from having an insurable interest in the property at that time its legatees. An interest, to be insurable, does not necessarily depend upon the ownership of property. "It is now well established that even one who has no title, legal or equitable, in the property, and no present possession or right of possession thereof, yet hits an insurable interest therein, if he will derive benefit from its continuing to exist, or will suffer loss by its destruction." Williams v. Insurance Co., 107 Mass. 377, 379, and authorities cited; Hanover Insurance Co. v. Bohn, 48 Neb. 743, 750, — 58 Am. St. Rep. 719, 724; Merrett v. Insurance Co., 42 Ia. 11; Wood Fire Ins., ss. 38, 40; May Ins. (2d ed.), ss. 80, 91, 115.
The defendants' motion is denied. As a matter of law, the policy did not become inoperative through the temporary absence of Mrs. Rollins; and whether the defendants' risk was increased thereby, it was the province of the jury to determine.
Judgment for the plaintiff for $1,371.20, and interest.
PARSONS, J., did not sit: the others concurred. *Page 443