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north gate supposed, or had reason to suppose, that his gate
would come in contact with the plaintiflfe' carriage when he
began to move it in obedience to the signal. That gate was
forty-eight and a half feet long. For aught that appears,
the slight interlocking and striking the felloes may have
been, and probably was, occasioned by the horse being pulled
round by Mr. Peck in his vain efforts to stop it.

I see no culpable negligence on the part of the gate-
tenders. They were constantly on duty to open and close
the gates for the better protection of travelers having occa-
sion to cross. When the engineer struck his bell as a signal
to close the gates, as he was about to start his train, it was
their duty to obey instructions. If they may refuse to close
the gates when the signal is given for that purpose, and
wait for a team to pass over which happens to be within t^n
or twelve feet of the outer rail of the main track at the
time the signal is given, a train might be delayed an indefi-
nite time. In a city like Meriden a number of teams might
be approaching from either side, and if one might pass why
not the others, as each came up within the same distance ?
It is more reasonable that a team or a number of teams
should wait a few moments than that a train of cars, with
its mails and hundreds of passengers, should be detained.

Neither was the engineer guilty of culpable negligence.
He was ready to start his train. If he saw the plaintiffs he
too knew that they were a considerable distance from the
outer rail, and had good reason to suppose that they would
stop at the sound of the bell. He did not start his train
however, but held it until Mr. Peck and his team were
safely across.

If Mrs. Peck had remained in the carriage she would have
passed safely across, as did her husband. She mi^udged.
She was in no real danger, and there was no more reason
for her jumping out of the carriage than there was for her
husband. She could see the locomotive, and might have



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896 NEW HAVEN COUNTY.

Meriden Sayings Bank v. Home Ins. Co.

known as well as her husband that the engineer would not
.start his train so long as the team was in danger of being
struck by it.

The Court of Common Pleas is advised to render judg-
ment in favor of the plaintifEs for the smaller sum, fifty
dollars.

In this opinion Park, C. J., and LooMis, J., concurred;
Cabpekteb and Gbangeb, Js., dissented.



The Meridbn Savings Bank vs. The Home MuTtJAL
Fire Insurance Company.

A policy of insurance on property mortgaged to a savings bank was, by a
memorandum on the policy, made payable to the savings bank to the
amount of its mortgage. A, collateral agreement was also made by the
insurance company with the savings bank, that all policies which had
been or might be issued by the insurance company and assigned or made
payable to the savings bank, should not, as to the interest of the latter,
be invalidated by any act or neglect of the mortgagor or owner, that the
savings bank should pay for any increase of hazard, and that on pay-
ment being made to the savings bank the insurance company should be
entitled to all the securities held by the savings bank. Both the policy
and the agreement were under seal. The premium, constituting the con-
sideration of the policy, was paid by the insured. Held :

1. That the savings bank, not being a party to the policy, could not sue
upon it alone, even though the promise was made for its benefit.

2. That the two instruments together constituted a contract between the
insurance company and the savings bank, by which the latter became
privy to the promise of the insurance company contained in the policy,
to pay the loss to it; and that a suit at law could be maintained by the
savings bank in its own name on that promise.

If the savings bank had sued in the name of the mortgagor, the suit would
have had to be brought on the policy alone; in which case there would
have been a difficulty in its availing itself of the agreement of the insur-
ance company that the acts of the mortgagor should not invalidate the
policy.

It would be no objection that, if the savings bank could sue in its own
name upon the contract in connection with the policy, the insurance
company might be subjected to two suits for the same loss. The com-
pany had voluntarily placed itself in this position by making two con-
tracts with two different parties relative to the same subject matter.



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DECEMBER TERM, 1882. 897

Meriden Savings Bank v. Home Ins. Co.

Assumpsit against an insurance company on its contract
to pay the loss upon a policy of fire insurance, to the plain-
tiffs; brought to the Superior Court. Demurrer by the
defendants, and reservation upon the pleadings for the
advice of this court. The case is sufficiently stated in the
opinion.

The case was argued at a former term by B, Eicks^ in
support of the demurrer, and 0. E. Piatt and J. P. Piatt
contra. The judges having ordered a re-argument, it was
argued at the present term by jR. Bick$ for the defendants,
and J. P. Piatt for the plaintiffiB.

Cabpekter, J. This is an action on a fire insurance
policy issued to the owner of the property, the loss being
payable to the mortgagees, who bring the action in their own
name. The declaration contains two counts. The first is
on the policy alone, and is in the usual form, except that it
is not brought by the insured. The second count recites
the policy, and also a cojatract with the plaintiflfe relating to
the policy, known as a mortgage agreement. That agree-
ment is as follows: ^^In consideration of one dollar
received to its fuU satisfaction, the Home Mutual Fire In-
surance Company, of Stafford Springs, doth hereby agree
with the Meriden Savings Bank, of Meriden, Connecticut,
that all policies of insurance which have been or may be
issued by the said Home Mutual Fire Insurance Company,
and which, with its consent, have been or may be assigned,
or losses under which are made payable to the said Meriden
Savings' Bank, as mortgagee, shall not, as to the interest of
the said mortgagee only therein, be invalidated by any act
or neglect of the mortgagor or owner of the property in-
sured, by any sale or alienation, by non-occupation or occu-
pation of the premises for purposes more hazardous than
are permitted by the policy. And it is further agreed be-
tween the parties hereto, that the mortgagee shall notify
said company of any change of ownership or increase of
hazard which shall come to its knowledge, and that every
increase of hazard not permitted by the policy to the mort-



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898 NEW HAVEN COUNTY.

Meriden Savings Bank v. Home Ins. Co.

gagor or owner shall be paid by the mortgagee on reason-
able demand, according to the established scale of rates, for
the use of such increased hazard during the current year.
And it is further agreed between the parties hereto, that
whenever the said Home Mutual Fire Insurance Company
shall pay to the said mortgagee any sum for loss under any
policy assigned as above, and shall claim that, as to the
mortgagor or owner, no liability therefor existed, the said
Home Mutual Fire Insurance Company shall at once be
legally subrogated to all the rights of the mortgagee under
all the securities held as collateral to the mortgage debt to
the extent of such payment, or at their option may pay to
the mortgagee the whole principal due or to grow due on
the mortgage, with interest, and shall thereupon receive a
full assignment and transfer of the mortgage and all other
securities held as collateral to the mortgage debt ; but no
such subrogation shall impair the right of the mortgagee to
recover the full amount of claim."

This contract was signed and sealed by the president and
secretary of the insurance company. The declaration then
avers a performance of all the conditions of the policy by
the insured in the usual form.

The defendants demurred, and the case is reserved for
the advice of this court. We will consider only the second
count, as the plaintiffs claim nothing under the first.

The second count is not on the policy, which is a con-
tract with the mortgagor, but is on the contract made with
the plaintiffs. That the two instruments together consti-
tute a contract with the plaintiffs is hardly denied. The
controversy relates to its nature and validity.

The defendants claim that it is simply a waiver of certain
conditions contained in the policy. The plaintiffs claim
that it is an independent contract of insurance with them.
We are inclined to take a somewhat different view of it
from that taken by either of the parties. It is something
more than a waiver. The policy contains a promise from
the defendants upon a consideration moving from Guiott,
the mortgagor, to pay to the plaintiff, in case of loss, the



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DECEMBER TERM, 1882. 899

Meriden Sayings Bank v. Home Ins. Co.

amount of their mortgage. As the plaintifb are not a
party to the policy there is no privity (in respect to it
alone) between them and the defendants; so that they
could not sue on the policy alone, it being a sealed instru-
ment, even though it may be that the promise was made for
their benefit. Woodbury Savings Bank v. Charter Oak Fire
and Marine Ins. Co.^ 29 Conn., 374. But by another instru-
ment under seal, referring to the policy, (and the two in-
struments must be construed together,) the defendants
agree, in consideration of one dollar, and in further con-
sideration that the plaintifife are, in a certain contingency,
to give notice to the defendants and are to pay extra pre-
miums, and, in a certain other contingency, are to convey
the mortgage debt, when paid by the defendants, and aU
securities held by them, to the defendants, to be held by
them as a valid claim against the mortgagor, that certain
enumerated acts by the mortgagor or owner of the property,
which acts are prohibited by the policy, shall not, as to the
interest of the mortgagees only, invalidate the policy.

Now the legal effect of this arrangement is to bring the
mortgagees into contract relations with the insurers. The
mortgagees thereby become privy to the promise to pay the
loss to them, and thereby the obstacles to a maintenance of
a suit by them on that promise — ^want of privity, and want
of a consideration moving from them — are removed. Sast-
ings et ah v. WestcT^ster Fire Ins. Co.^ 78 N. York, 141.
We do not however, at this time and in this qase, go quite
so far as that case seems to go, and hold that the mortgage
agreement is a distinct and independent contract of insur-
ance. It is rather an agreement relating to an existing
policy, by which certain conditions are dispensed with, and
certain privileges are secured to the insurers which they
would not otherwise have, and the plaintiffs are made a
party to the contract of insurance.

The mortgage contract attached to this policy distinguishes
this case from the Woodbury Savings Bank v. Charter Oak
Insurance Co.^ supra^ and vests in the mortgagees a legal as
well as an equitable interest in the promise to pay the mort-



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400 NEW HAVEN COUNTY.

Meriden Savings Bank v. Home Ins. Co.

gagees contained in the policy. To describe the relations of
the parties to each other more specifically, we should say
there is but one policy and that runs to the mortgagor ; he
is the insured, the premiums were paid by him, the lien for
assessments is on his property, he is personally liable for the
assessments, and he is entitled to the remainder of the
policy after the mortgagees are paid. The defendants
agreed in case of loss to pay $1,000. Of that sum, and as
a part of it, they agreed to pay the amount of the plaintiff'
claim to the plaintiffs, and voluntarily placed the plaintifiEs
in a position to bring a suit on that promise in their own
names.

But the defendants insist, notwithstanding the mortgage
agreement, that no suit can be brought except in the name
of the mortgagor. That claim mistakes the position of the
parties. For all the purposes of this case we may concede
that if a suit is to be brought on the policy alone it must be
brought in the name of the mortgagor. But this suit is not
brought on the policy ; it is brought on a contract with the
plaintiffs, of which contract the policy forms a part. On
this contract nC suit can be brought by the mortgagor
because he is not a party to it, and it was not made for his
benefit. If he should bring a suit on the policy it is very
clear that he could not set up the agreement with the plain-
tiffs as an answer to any defence that might be set up, and
for the reason that he is a stranger totthat contract. If the
plaintiffs should bring a suit in the name of the mortgagor
that suit must be brought on the policy alone, because that
is the only contract he has made ; and in such a suit it is
difficult to see how the plaintifGs could avail themselves of
the mortgage agreement. Indeed we can hardly conceive
how it is possible, in case any of the grounds of defence
enumerated in the mortgage agreement are relied on, for the
plaintiffs to avail themselves of that agreement except by
bringing a suit in their own names as they have done.

But the defendants insist that this being a mutual com-
pany, it cannot insure the plaintiffs on terms differing from
the terms on which policies issue to other members. The



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DECEMBER TERM, 1882. 401

Meriden Sayings Bank v. Home Ins. Co.

yiew we have taken of this case is not inconsistent with
that position, therefore we have no occasion to controvert it.

For the same reason the defendants say that the company
has no power to waive any of the conditions in the policy
issued to Guiott and thereby place this policy on a different
footing from the others. We have no occasion to consider
that question now, for it does not arise on this demurrer.
The declaration alleges ^' that the said John Guiott kept,
observed, performed and fulfilled all the conditions, stipu-
lations and things contained in said writing or policy of
insurance on his part to be observed, fulfilled and kept."
The demurrer admits that entire allegation to be true, so
that, as the case stands before us, the company issued a
policy to John Guiott, the building burned, whereby the
loss became payable, the insured had observed all the con-
ditions and stipulations of the policy, and the company has
no defence. Now if the suit is properly brought in the
name of the plaintiffs, as we think it is, no reason appears
on the face of the declaration why the defendants should
not pay the loss as agreed.

The defendants further say that if this suit may be main-
tained, they may be vexed and harassed by two suits on the
same contract. We reply that the defendants have made
two contracts with two different parties relating to the same
subject matt^. They have voluntarily placed themselves
in a position in which they are subject to two suits. Should
there be two suits they have no cause of complaint.

For these reasons we are of the opinion that the declara-
tion is sufficient, and the Superior Court is so advised.

In this opinion the other judges concurred.

[KoTB. This case was heard some time after the regular term, when all
the judges were present.]

Vol. l.— 26



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402 NEW HAVEN COUNTY.



Bristol V, Atwater.



Loins H. Bbistol, Tbustbb, vs. Chablbs Atwateb

AND 0THBB8.

A testator, leaving a large real and personal estate, made the following
bequest: — ** I give one fifth to my daughter 8, the interest to be paid over
to her semi-annually during her life; and in case of her death I give the
same in fee simple to her«diildren, if she leave any, but if none then to
my other children or their issue in equal shares, the children or grand-
children to take the share which the deceased parent would take." 8
survived the testator and afterwards died leaving no issue. After the
death of the testator and before that of 8, C, a son of the testator, went
into bankruptcy and the settlement of his bankrupt estate was not yet
closed. Held —
I 1. That the contingent gift to the other children on the death of 8 without
issue was good only as an executory devise.

2. That the interest of C vested only on the death of 8,

8. That no interest passed to Cs assignees in bankruptcy.

Hie persons to take the contingent interest on the death of 8 without issue
being the ** other children of the testator or their issue," were not ascer-
tainable until the death of 8f and therefore the interest could not vest
in them.

Suit for the settlement of the construction of a will;
brought to the Superior Court. The plaintiff was a trustee
under the will.

The complaint alleged that the testator, Charles Atwater,
Sen., of the city of New Haven, died in J^uary, 1866,
leaving a large estate, both real and personal, and a will,
duly executed, by which, after making provision for his
widow and giving certain legacies, he directed that the
residue of his estate be divided into five equal shares, of
which he gave one each to his two sons Charles, Jr., and
Henry. The will then proceeded as follows : —

" Fifth : One other fifth part I give and devise to my said
executors in trust for my daughter, Sarah Denman, the wife
of Matthias B. Denman, as follows, namely : to pay over
semi-annually to said Sarah during her natural life, for her
sole and separate use, the income which may arise from that
portion ; ^ovided that in ca8_e. JUttAHSar ah should ^ in the
judgment of said trustees, need any p ortion of th eprincipal



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DECEMBER TERM, 1882. 408

Bristol V. Atwater.

for her comfortable and prop er support, said trustees may,
^rom time to time^ advance to her so much of the jgriiifiipftl
as jaay u l their judgment be~neces8ary therefor ^^ and her
separate receipt shall be suMcTent discharge to said trustees
for any payment made to her, whether of principal or inter-
est ; and in case of the death of said Sa rah Penman, eithe r
b efore or after m y decease , I give said fifth part to the
children of saicTSarah in fee simple if she leave any surviv-
ing her, to be equally divided among them ; but if she leave
no children, then to my other children or their issue in equal
shares, the children of such as are deceased, whether of
children or grandchildren, to take the share which their
deceased parent would have had." *

The executors and trustees named in the will were Charles
and Henry Atwater, sons of the testator, and Henry White.
The executors had settled the estate in probate and the
property was now held wholly under the trust. Louis H.
Bristol, the plaintiff, had by the death or resignation of the
original trustees, become, by appointment of the probate
court, the sole tnistee. Charles Atwater, Jr., on resigning
his trusteeship in 1879, failed to pay over to Mr. White,
then his co-trustee, a portion of the trust fund that had been
in his hands, and remains indebted to the estate for the same,
except as paid in part as below stated.

Charles Atwater, Jr., went into bankruptcy, under the
bankrupt act of the United States, in 1877, and the plaintiff
and Hobart B. Bigelow were appointed his assignees in
bankruptcy. The schedules filed in bankruptcy made no
mention of any interest existing in him under the will of
his father. The claim of the trust estate against him as
trustee was proved against his bankrupt estate and a divi-
dend of $3,280.31 was paid by the latter estate to the trust



* The wUl then gives another fifth to the testator's daughter Lucy R.
Ehnes, and. the remaining fifth to his daughter Elizabeth Chamley. The
advice of the court was asked and is given as to certain questions with
regard to these legacies, but as they are not discussed in the opinion and
are of no general interest, the reporter has thought it best not to occupy
the space with a statement of them.



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404 NEW HAVEN COUNTY.

Bristol V. Atwater.

fond. At the time of the bringing of the present suit
Charles Atwater, Jr., was hopelessly insolvent, and there was
a balance due from him to the trust fund of $12,856.25.

The plaintiff as trustee now held in his hands $43,500
applicable to the uses and trusts created by the fifth section
of the will.

Sarah Denman died in May, 1882, leaving no children or
lineal descendents. There survived her, her brother Charles
Atwater, Jr., her sister Lucy R. Elmes, five children and a
child of a deceased child of her sister Elizabeth Chamley
deceased, and five children of her brother Henry Atwater.

The questions as to which the plaintiff sought the advice
of the court were the following : —

1. Whether Charles Atwater, Jr., is entitled to any portion
of the trust fund created by the fifth section of the will, and
if so, to what share thereof.

2. Whether the plaintiff and the said Bigelow, as trus-
tees in bankruptcy, are entitled to any portion of that trust
fund, and if so, to what share thereof.

8. Whether the sum of $12,856.25, due from Charles
Atwater, Jr., is to be set off equitably or otherwise as
i^inst that share of the fund to which he would have been
entitled, if not bankrupt, if it shall be held that his trus-
tees in bankruptcy are otherwise entitled to receive that
share,

4. To whom such portion of the fund as shall be found
by the court to be equitably due to Lucy R. Elmes is to be
conveyed.

5. To whom such portion of the fund as shall be found
by the court to be equitably due to the children of Elizabeth
Chamley is to be conveyed.

The allegations of the complaint were found true and the
case was reserved for the advice of this court.

X. jET. Bristol^ for the plaintiff.

O. jR. Ififfersollf for the assignees in bankruptcy of Charles
Atwater.



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DECEMBER TERM, 1882. 405

Bristol V. Atwater.
S. E. Baldwin^ for Charles Atwater.

J. S. Beach, for the children and grandchildren of Elisa-
beth Charnley.

W. B. Wbostery for Lucy R. Elmes and heirs of Heniy
Atwater.

Pabk, C. J. The first question presented in this case
for our consideration and advice is, "whether Charles
Atwater, Jr., is entitled to any portion of the trust fund
created by the fifth section of the will of Charles Atwater,
and if so, to what share thereof? "

The fifth section of the will is as follows: " One other
fifth part I give and devise to my executors in trust for my
daughter, Sarah Denman, as follows, namely : to pay over
semi-annually to said Sarah during her natural life, for her
sole and separate use, the income which may arise from that
portion ; provided, if said Sarah should, in the judgment of
said trustees, need any portion of the principal for her com-
fortable and proper support, said trustees may from time to
time advance to her so much of the principal as may in
their judgment be necessary therefor, and her separate
receipt shall be sufficient discharge to said trustees for any
payment made to her, whether of principal or interest ; and
in case of the death of said Sarah Denman, either before or
after my decease, I give said fifth part to the children of
said Sarah in fee simple, if she leaves any surviving her, to
be equally divided among them; but if she leaves no
children, then to my other children, or their issue, in equal
shares, the children of such as are deceased, whether of
children or grandchildren, to take the share which their
deceased parent would have had."

Mrs. Denman died in the month of May, 1882, leaving
no children or lineal descendants.

In the month of April, 1877, Charles Atwater, Jr., was
duly adjudged a bankrupt under the laws of the United
States, and assignees of his estate were duly appointed,



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406 NEW HAVEN COUNTY.

Bristol V. Atwftter.

whose schedules in bankruptcy made no mention of any
interest existing in him under the will in question. The
bankrupt estate is now in process of settlement.

The testator died in the month of January, 1866, seized
and possessed of a large estate in real and personal
property.

These are the principal facts regarding the first question
presented for our consideration.

We think it is clear that the contingent interest over to
the other children of the testator or their issue, in the event
oi the death of Mrs. Denman without children surviving
her, is good only as an executory devise. This is made cer-
tain by a long list of authorities that might be cited. We <
will refer to but a few of them. Morgan v. Morgan^ 6 Day, ■
617 ; Cotich v. Qorham^ 1 Conn., 36 ; Alfred v. Mark%^ 49



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