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and cared for it up to the time it was burned, though they usually
slept and took their meals in a house near by, which belonged to
the tenant.

What constitutes vacancy or nonoccupancy of a building is a
question of law; but whether a building is vacant or unoccupied,
or not, within the meaning of the law, is a question of fact for the
jury. To constitute occupany of a dwelling-house, it is not es-
sential that it be continuously used by a family. The family may
be absent from it for health, pleasure, business, or convenience,
for reasonable periods, and the house will not, on that account,
be considered as vacant or unoccupied. In the case of Imperial
Fire Ins. Co. v. Kieman, 83 Ky. 468, it is held: "That the con-
dition in a policy on a house described *as occupied as a family
residence,' containing a condition that it shall become void if the
house *shall become vacant or unoccupied,' the words 'occupied
as a family residence' must be regarded as but a representation
as to the then use of the house, and the condition as but an under-
taking by the insured that the house shall not be without an oc-
cupant during the time covered by the policy; ** and the con-
dition is not broken or violated, or the policy become void, 'upon
the house ceasing to be occupied' as a family residence, it con-
tinuing to be occupied by one person, who had access to the entire
building for the purpose of caring for it." The same doctrine is
declared in Bichards on Insurance, section 56, and in May on In-
surance, section 247, where the authorities on the subject are
cited. No rule is better settled than that such conditions in
policies should receive a strict construction, and, when ambigu-
ous, be construed most strongly against the insurer, for the
reason that they are prepared by, and inserted for the benefit of,
the insurer.

The condition of the policy in the present case is not more
specific or comprehensive in its requirements concerning the
occupancy of the building insured than the one involved in the
Kentucky case. It declares that no liability shall exist under
the policy for loss or damage to an unoccupied building, but does
not stipulate that the insured building shall be used as a dwell-
ing, or require any particular mode of occupancy. Strictly con-
strued, occupancy for any lawful purpose would satisfy the con-
dition, and preserve the obligation of the policy. At all events
it was not essential that the building should be put to all the
uses ordinarily made of a dwelling, or to some of those uses aU

Digitized by


704 Moody v. Insurance Compant. [Ohio,

of the time; nor that the whole house should be subjected to that
use. Nor does it follow^ as a matter of law^ that a dweliing-house
is to be considered as unoccupied, merely because it has ceased to
be used as a family residence, where the household goods remair
ready for use, and it continues to be occupied by one or more
members of the family, who have access to the entire building for
the purpose ^* of caring for it, and who do care for it, and make
some use of it as a place of abode.

Again, we think the court erred in the instruction given the
jury for another reason. The policy was issued since the adop-
tion of the act of March 6, 1879, "to regulate contracts of insur-
ance of buildings and structures'' (Rev. Stats., sees. 3643, 3644),
which provides that " in the absence of any change increasing
the risk without the consent of the insurer, and also of
intentional fraud on the part of the insured, in case of total
loss, the whole amount mentioned in the policy or renewal upon
which the insurers receive a premium shall be paid, and, in case
of a partial loss, the full amount of the partial loss shall be
paid.'* The statute, being in force when the policy was issued,
became a part of the contract of insurance, and controls its con-
struction and operation. The condition of the policy in regard
to the occupancy of the building is therefore so qualified by the
statute that, in the absence of intentional fraud on the part of the
insured, to make the change from occupancy to disuse or want of
occupancy available as a defense, it must appear that the risk was
thereby increased: Insurance Co. v. Leslie, 47 Ohiq St 409. It
is well settled that the risk is not necessarily or prima fade in-
creased by the insured property becomiug vacant or unoccupied:
Biddle on Insurance, sec. 654; May on Insurance, 247; Rich-
ards on Insurance, 166; Residence Fire Ins. Co. v. Hannawold,
37 Mich. 103; Becker v. Farmers' etc. Ins. Co., 48 Mich. 610;
Lockwood V. Middlesex Mui Assur. Co., 47 Conn. 653. And,
therefore, when the insurer pleads such change as a defense to
an action on the policy, the answer must allege that the risk was
increased on account of it, unless the insured was ^ilty of fraud.
No doubt the vacation ** or disuse of an insured building may
in some cases materially increase the risk; in others it may not in-
crease it any; and in some instances the circumstances may be
such that the risk is lessened. Whether it is increased or not, in
any case, must depend upon the situation and surroundings of
the building, the use which had been made of it, the care taken of
it, and all other circumstances, and is a question for the jury
when put in issue. The second defense in the answer in this i

Digitized by


Dec. 1894.] Powell v. Koehlbr. 705

is defective^ in that it fails to allege the risk was increased by the
-change resulting from the breach of the condition pleaded; it
tendered no material issue. That defense being insufficient^ and
the plaintiff having given evidence of the performance of the
<^nditions precedent on his part, he might properly have had
the verdict, no claim being made that he had been guilty of any
intentional fraud. For each of the errors pointed out, the judg-
ment of the common pleas and of the circuit court will be reversed
■and the cause remanded.
Judgment accordingly.

SENCE.— Occupancy implies actual use of a dwelling-houee as Buch,
4uid an insurer baa a right, under a policy employing such word, to the
care ami supervision of the insured premises involved in aach an occu-
pancy: Limburg v. German etc. Ins. Co., 90 Iowa, 709; 48 Am. St.
Rep. 4t>8, and note. See, particularly, the extended note to Moore v*
Phoenix Ins. Co., 10 Am. St. Rep. 392.

TION OF: See the extended note to Moore v* Phoenix Ins, Co., 10 Am.
SU Bep. 390, 391.

Powell v. Koehlbr,

[52 Ohio ©fate. 108.]

WILLS-DISABILITIES TO CONTEST.— If, when a will to ad-
mitted to probate, the person entitled to contest is under two or more
disabilities, his ri^bt to contest is not barred until the longest con-
tinuing disability is removed.

OTHERS ARE NOT. and the former, because of such disability, re-
mains entitled to contest a will, and brings a proceeding for that pur-
pose, a Judgment in liis favor operates In fayor of all the other heirs.

ABILITY.— If a person entitled to contest a will is under the two dis-
abilities of infancy and absence from the state at the time his rljcht
of action accrues, his subsequent temporary presence in the state
while he is yet an Infant has the effect of removing his disability of
absence from the state.

limitation in favor of persons laboring under disability are strictly
construed, and cannot be enlarged from considerations of apparent
Inconvenience or hardship.

STATUTE OF LIMITATIONS.— Absence from the state as 8
disability under the statute of limitations ends when the personal
presence of the party In the state begins; and once ended by such
presence, thongh for a temporary purpose only and of short duration,
does not revive by ■absequent absence, however pennanent or long

Aetim to contest the will of Uiles W. Hank. After Us deaiii
« chfld was bom to him, for which no proriiioa wm nad« in hit

Ax. 8f. Rsp., Vol. XLDL^tf

Digitized by


706 Powell v. Eoehlxr. [Ohio^

will. This child died while not yet one year of age and before
the will was admitted to probate. The plaintiffs in this action
are the legal heirs of this child^ and the action was commenced on
the 1st of May, 1889. In January of the same year, the widow of
Miles W. Hank, who was the sole beneficiary under his will, died,
having first made a will in which she disposed of the property to
the defendants in the present action. They in their answer
pleaded that the action had not been commenced within two
years after the will had been admitted to probate, nor within two
years after any disability of the plaintiffs, or of either of them,
had ceased. It was admitted, however, that one of the plaintiffs,
Mary G. Powell, was, when the will was admitted to probate, an
infant of the age of nine years only, and absent from the state;
that she remained so absent up to the time of the trial, except
that in the year 1880 she and her stepmother, when en route to
the home of the latter in thje state of Illinois, stopped in Ohio for
a period of about twenty days. The jury were instructed as fol-
lows: "The facts in the case show that the plaintiff Mary G.
Powell is the only one of the plaintiffs who was within the protec-
tion of the disability statute; that at the time the cause of action
accrued she was under the protection of two disabilities, one of
infancy, which long ago terminated, and absence from the state.
It is a conceded fact that while still an infant, a nonresident, and
absent from the state, and after the death of said infant, and after
said will was probated, she, in control of a person standing in
loco parentis to her, came within the state of Ohio for the purpose
of passing through it to acquire a new residence in another state;
that she remained in this state the period of twenty days, and
then went from it and continued absent therefrom continuously
up to the time named in the petition, but a greater period than the
period of two years. The court, therefore, directs you, as a matter
of law, that, upon her coming bodily within this state, although
an infant and coming involuntarily, that the disability provided
in the statute as to absence from the state was taken away
from her; and a greater period having elapsed from the beginning
of the running of the statute than two years, that she ia not en-
titled under the law to maintain this action. It is your duty,
under the direction of the court, to find affirmatively that the
will is the will of Mr. Miles W. Hank. You will appoint one of
your number foreman, and so sign the verdict.** Verdict and
judgment sustaining the will.

F. S. Hanselman and M. Stuart, for the plaintiffs in error.

C. Fillius and G. M. Tuttle, for the defendants in error.

Digitized by


Deo. 1894.] Powell v. Koehler. 707

**^ WILLIAMS, J. The question in the case arises upon flie
instruction of the court to the jury. The chapter of the Revised
Statutes relating to wills contains the provision that: "If no per-
son interested shall, within two years after probate had, appear
and contest the validity of the will, the probate shall be forever
binding, saving, however, to infants and persons absent from the
state, or of insane mind, or in captivity, the like period after the
respective disabilities are removed'*: Eev. Stats., sec. 5933. And
section 5866 provides that: "An action to contest a will or codicil
shall be brought within two years after the same has been ad-
mitted to probate, but persons within the age of minority, of un-
sound mind, imprisoned, or absent from the state, may bi-ing
such action within two years after such disability is removed."

Where, at the time a will or codicil is admitted to probate a
person who may contest it is under two or more of the disabilr s
mentioned in the statute, his right of action is not barred unil
the **® expiration of the statutory period, after the longest r«.fi-
tinuing disability is removed: and, so long as the right of art inn is
l^ved to any plaintiff, the action brought by him inures to the ad-
vantage of all persons interested with him in the estate, for the
will, being an entirety, is wholly inoperative when set aside at the
suit of any party, and the estate must then be divided and His-
tributed tinder the law. It is conceded that Mary G. Powell at-
tained the age of majority more than two years before the action
below was brought, and that none of the other plaintiffs were
within the saving clause of the statute; so that the legal ques-
tion here is, whetlier, wiiere a person is under the two ii Lia-
bilities of infancy and absence from the state when his right of
action accrues, his subsequent temporary presence in the stnte,
while he is yet an infant, has the effect of removing his tlis-
ability of absence from the state.

The question has not heretofore received the consider* on
of this court, nor, so far as we have been able to discover, of he
court of last resort of any of the states. It appears to be u • 11
settled, however, that exceptions in statutes of limitation- in
favor of persons under disability should be strictly cons" 1,
and never extended beyond their plain import. The rule i« •' it
in the absence of a saving clause the statute runs against all •< p-
sons, whether under disability or not; and with such a clause it
nms alike against all who cannot bring themselves clearly within
some one of the excepted classes, and acrainst those who can, ac-
cording to the terms of the clause. The general provisions of
the statute are restrained only so far as there are express words of

Digitized by


708 Powell v. Eobhlxb. [Ohio^

exception; and it is therefore incumbent on those who claim ^^*
the benefit of the exception to show that they are^ in all particn-
lars, within its descriptive terms and conditions. And, where
the statute has created specific exceptions, all others must be
deemed excluded. The courts are without authority to enlarge
or change those specified, or establish others, though in par-
ticular cases the ends of justice might seem to be subserved if
it were done. It was said by Chancellor Kent, in Demarest v.
Wynkoop, 3 Johns. Ch. 129, 8 Am. Dec. 467, that: "The doctrine
of any inherent equity creating an exception as to any disability,
where the statute of limitations creates none, has been long, and
I believe uniformly, exploded. General words in the statute
must receive a general construction, and, if there be no express
exception, the court can create none." And in Amy v. Water-
town, 130 U. S. 320, it is declared to be the general rule respect-
ing statutes of limitations that the language of the act must pre-
vail, and no reason based on apparent inconvenience or hardship
will justify a departure from it. True, in a few instances, courts
have apparently made exceptions not found in the statute; but
they are only such as arise from a state of war, or other imperative
necessity, as when the courts are shut, or by act of law one party
is forbidden to sue, or the other is rendered incapable of being
sued. Persons within the saving provisions of the statute are not
precluded from suing while the disability lasts. The time
within which they may sue is simply extended for a definite
period after the disability ceases, and when it ceases they stand
upon the same footing as other persons. The statute begins to
run against them from that time, and, once started, nothing can
prevent the bar but suit **^ brought within the prescribed
period. The rule which is generally maintained in this country
was announced by Lord Talbot, in Belch v. Harvey, 3 P. Wms.
287, in the following language: "The persons who are the subject
of the proviso are not disabled from suing; they are only excused
from the necessity of doing it during the continuance of the legal
impediment; therefore, when that difficulty is removed, the time
allowed for their further proceeding should be shortened. If
they would excuse a neglect under the first part of the proviso^
should they not do it upon the terms on which such excuse was

Necessarily, a disability is removed, within the purview of the
statute, when it no longer exists; that of absence from the state
ends when the personal presence of the party in the state begins,
and once ended by such presence, though it be but for a tern-

Digitized by


Dec. 1894.] Powell v. Kobhler. 709

poraiy purpose and of short duration, the disability does not re-
vive by subsequent absence, however permanent in its character,
or long continued: Faw v. Roberdeau, 3 Cranch, 174. This is
not disputed, when applied to adult persons of sound mind; but,
it is contended, the rule should be different with respect to in-
fants, who are under the control of those in whose custody they
are placed, and incapable of binding themselves by their own
acts, or by their consent to the acts of those having control over
them; and, upon that ground, it is claimed Mary G. Powell's pres-
ence here, in company with her stepmother, did not terminate
her disability of absence from the state, which theretofore ex-
isted. We find nothing in the statute which gives support to
that position. Every person who is absent from the state when
his cause of action accrues, whether of consenting ^^^ capacity
or not, is included in the saving clause of the statute under con-
sideration. The only fact made necessary to the creation of that
disability is ;ictiial absence from the stale; and, in the nature of
things, the only fact essential to its removal, in any case, is the
actual presence of the person in the state, no distinction having
been made by the statute, either with respect to the disability, or
its removal, on account of the age or capacity of the person, or
other circumstance. It was undoubtedly competent for the
legislature to have made the distinction; but having failed to do
so, when the whole subject was before that body, we must con-
clude the omission occurred because such provision was deemed
inadvisable; and it may have been so considered, for the reason
that by the perpetuation of disabilities, resulting from a pro-
vision of that kind, the settlement and distribution of estates
might he unreasonably delayed, while the general policy of our
law favors the speedy settlement of estates and the repose of titles
derived from them. At all events, the omission, if it be one,
must be supplied by the legislative body, and cannot be by the

Under an English statute of limitations, which saved to per-
sons 'Hjeyond the soas" when their cause of action accrued a
limited time after their return within wliich to sue, it was held,
in the case of Sturt v. !Mellich, 2 Atk. 610, that the statute run
from the time the party was returned, and his goinfr abroad again
gave him no privilege, "for that was gone by his having once re-
turned to the kingdom after his cause of action accrued.*' In
the course of the opinion, TiOrd Chancellor Hardwicke remarked:
"Suppose a creditor, both of nonsane memory and out of the **^
kingdom, comes into the kingdom, and then goes out of the king-

Digitized by


710 Powell v. Eobhleb. [Ohio^

dom, his nonsane memory contdniiing; why^ his priTil^e as to
being out is gone, and his privilege as to nonsane will begin from
the time he returns to his senses/' The observation above
quoted, while not necessary to the decision of the exact question
involved, and merely illustrative of the point ruled, has been ac-
cepted by text-writers in this country as a correct statement of
the law: Angell on Limitations, sec. 198; Wood on Limitations,
sec. 6, p. 24. The English statute, like ours, makes no distinc*
tion, so far as the disability arising from absence is concerned, on
account of the mental condition or age of the absent person; so
that the rule stated by Lord Hardwicke is not less applicable to
cases arising under our statute than to those under the one which
was before him; and is, moreover, in accordance with what we re-
gard as the proper interpretation of our statute.

It is claimed, however, that the two sections of the act we have
been considering should be construed in connection with section
4989 of the Eevised Statutes, which provides that: *T[f, when a
cause of action accrues against a person, he is out of the state, or
has absconded or concealed himself, the period limited for
the commencement of the action shall not begin to run
until he comes into the state, or while he is so absconded or
concealed; and if, after the cause of action accrues, he depart
from the state, or abscond or conceal himself, the time of his
absence or concealment shall not be computed as any part of the
period within which the action must be brought.** The language
"comes into the state,** in the above section, it is said, imports an
act of choice, involving *** capacity to choose, which should be
accepted as indicating a legislative intent that a like act is neces-
sary to the removal of the disability of absence under the other
sections. It is not necessary to determine whether the language
referred to has the effect suggested; for, granting that it has, the
result claimed by no means follows. The section relates entirely
to persons against whom a cause of action accrues, and prevents
them from availing themselves of their absence or concealment as
a means of defeating the action. The cases to which it applies
are different in their nature from those covered by the other two
sections, and required different language to provide for them; it
therefore throws no light on the construction of the other sec-

Judgment aflBrmed.

The Disability of One of Several Parties to an Action or Proooedlar-

Will Contests, —In the principal case, the opinion is expressed that
if the ri^ht to contest a will remains in one oi several heirs by reason
of his disability, any proceeding brought by him and resulting in hia

Digitized by


Deo. 1894.] Powell v. Eobhlxs. 711

favor muBt neoeasarily inure to the advantage of the parties interested
with him in the estate, though, being under no disability, their rieht
to contest the will had terminated. The opinion of the court upon this
subject may, however, be fairly regarded as a dictum, for the reason
that its ultimate decision was founded upon the fact that the person
who in that case claimed to be under a disability had had one of the
disabilities removeJ, so that she was not entitled to maintain the pro-
ceeding in her own behalf, and, therefore, no action talcen bv her could
result either in her own advantage or in that of her coplaintiffs. There
are, in perhaps a majority of the states, proceedings authorizing the
contesting of wills within a fixed time after their admission to probate,
and further extending that time in favor of persons who, because of
infancy or some other disability, are excused from making any contest
until after the removal of their disability. It must have frequently
ha{>pened, therefore, that contests have been instituted by persons still
entitled to maintain such contest because of the disability of infancy,
and that such contest, if successful, must result in annullin|[ the will,
either wholly or in so far only as the interests of the contesting party
might be affected. Very singularly, we have been able to discover but
one decision, in which the question was necessarily involved, determin-
ing whether or not, after certain of the heirs have lost their right to
contest, they might take advantage of the contest prosecuted by
another heir whose right to prosecute it has been continued in force by
reason of some disability. *

Proceedings for the revocation of the probate of a will may be di-
vided into two classes: 1. Those in which all the parties entitled to con-
test are adults and the contest is filed within the time allowed by law,
but is by or on behalf of one of the heirs only ; and 2. Those in which
some of the heirs are minors or laboring under some other disability
and the other heirs are free from such disability, and the statute of the
state allows those under disability a certain time after its termination
within which to institute proceedings for the revocation of the will.

In the cases of the first class, while the decisions are not numerous,
they tend to show that though the petition for the revocation of the will
is instituted by one only of several heirs, yet if he is successful, the pro-

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 81 of 121)