By the Court, Potter, J.
It shall be sufficient, in the review of this case, to examine only the two questions presented as objections to the recovery :
1st. That the plaintiff had no interest or title to the property insured, and was not, therefore, a party in interest entled to recover. And 2d. that the persons named as “ heirs and representatives” had no title to the property or interest in the property. The whole policy is not set forth in the case, but it sufficiently appears from the findings of fact, which are uncontvoverted, that one Marilla Kirk held the insured property as a testamentary trustee and executrix for the “ heirs and representatives ” of one Andrew Kirk, deceased, and that the policy of insurance was issued by the defendants to the said Marilla Kirk for the benefit of such “ heirs and representatives.” ° That by the terms of the will the said Marilla held the said real estate in trust with power of alienation, and to hold the proceeds in trust, with the rents [50]*50issues and income, and with directions to divide the estate among the heirs of the testator.
As such trustee, she had an insurable interest in the said property, and the issuing of the said policies to her by such •designation) the property would, if it remained real estate, be properly represented by her as trustee, and if sold under the conferred power in the will, would still be represented by her until divided, as the proper legal owner and representative of said heirs or cestue que trust. The form of the policies is presumptive evidence that the insurers had knowledge of the character and title of the property they insured, and that they insured it accordingly.
The substitution of a new trustee by a judicial exercise of power did not increase the hazard or change the title to the property, and did not affect the representative character of the insured or the interest therein. This objection, therefore, has no merit.
2d. The judge found as a fact that during the term of insurance and previous to the fire, that Manila Kirk, the trustee, sold certain real estate which included the grist mill (the property insured) for the sum of $8,000 to one Henry 0. Arnold without any change of possession, and took back a mortgage for $7,000 to herself as executrix for so much of the purchase money at the time; that the policy of insurance was not assigned; that the defendant had no notice of the sale, and that no consent to the same was indorsed upon the policy, and that the insured property was worth about $4,000.
There is a provision in the policy in the following words : “If the property be sold or transferred, or if any change takes place in title or possession, whether by legal process of judicial decree, or voluntary transfer, or conveyance, * * *
this policy shall be void.” Upon this condition the defense rests, claiming a breach. The specific objection or exception to the finding of the court in this particular is, that it did not find ; that the deed and transfer of the title to the [51]*51property to Henry 0. Arnold, without the consent of the company, was a sale and transfer of the property, and-a change in the title thereof by voluntary conveyance, and that ft rendered the policy void. The-point of the appellant in this regard is confined to his exception as made. This court will not feel called upon to discuss the point upon any broader ground than that presented by the case to the court below and by the argument presented here.
The meaning and intent of insurance contracts, like all others, is to be obtained first from the language employed, and if by settled rules of construction the intent is not clear from the language itself, then the surrounding circumstances existing at the time the contract was entered into may be resorted to to solve the difficulty and to dispel any obscurity. (Dwarris, 177, 178, Amer. ed.) The trustee of the beneficiaries of the insured property was authorized (by the testator) to insure it for the beneficiaries. The form of the insurance implies, on tire part of the defendant, knowledge of this power and of the parties in interest. This interest of the beneficiaries was in the trust fund whether it remained in the real estate or became personal by alienation. This fund, or the lien which secured it, was the property insured. So long as this fund remained in the hands of the trustee, whether in real or personal estate, the trustee, as such, had an insurable interest therein. Insuring property to one for “ heirs and representatives” by necessary implication carnes the knowledge that the beneficial interest was in other than her whose name was used as the representative. The language, in its ordinary and popular sense, expresses that idea, and this made it a correct description of the insurable interest that "was insured.
As mortgagee of the same estate the trustee had the same insurable interest in the fund, as personal, as when it consisted of real estate. (Gordon agt. Mass. & F. V. Ins. Co., 2 Pick., 249.) With this presumption of knowledge by the defendants of the real ownership of interest in the fund, the [52]*52fund was the property insured; and this becomes the apt and appropriate description of the property, and is clear evidence of what is the meaning and intent of the parties, and truly indicates what property or interest was intended to be insured. (Springfield F. and M. Ins. Co. agt. Allen, 43 N. Y., 395.) And it was not necessarry, under the circumstances stated, that the interest insured should be more spefically stated. (Id. 396.) The policies were made and accepted with reference to this knowledge. So, too, it is held in a case where the description of the property insured was general, if a sale is made, and the vendor agrees to stand as trustee for the vendee, his insurable interest remains. (Per Lord Arbinger, in Powels agt. Innis 11, Mees, and W., 13.) And so where the sale is either conditional, or the vendor retains an insurable interest as mortgagee or guarantor, (1 Phil, on Ins., § 90,) and where the insurance is for the benefit of ■another who has an insurable interest in it, and the insurance in terms imports that it is for the benefit of such other. (Id., § 91.) This insurable interest has. never ceased. This interest was never transferred. It was in a fund constituted of real estate ; it remained an interest in the same estate.
The case of Hitchcock agt. N. W. Ins. Co., 26 N. Y., 68, settles the rule that in cases where there is no special clause-in the policy to the contrary, that no transfer of interest will work a forfeiture which does not entirely deprive the assignor of a policy or an insurable interest therein. In that policy was the following clause: “The interest of the assured in this policy or in the property insured is not assignable unless by the consent of this corporation manifested in writing, and in case of transfer or termination of any-such interest of the assured, either by sale or otherwise, without such consent, this policy shall from thenceforth be void and of no effect. The vessel insured was sold upon a contract retaining a lien for .$4,000, and the policy retained as security for such lien ; but no consent of the insurance company was obtained. How does that condition differ from the one [53]*53in the case at bar %
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By the Court, Potter, J.
It shall be sufficient, in the review of this case, to examine only the two questions presented as objections to the recovery :
1st. That the plaintiff had no interest or title to the property insured, and was not, therefore, a party in interest entled to recover. And 2d. that the persons named as “ heirs and representatives” had no title to the property or interest in the property. The whole policy is not set forth in the case, but it sufficiently appears from the findings of fact, which are uncontvoverted, that one Marilla Kirk held the insured property as a testamentary trustee and executrix for the “ heirs and representatives ” of one Andrew Kirk, deceased, and that the policy of insurance was issued by the defendants to the said Marilla Kirk for the benefit of such “ heirs and representatives.” ° That by the terms of the will the said Marilla held the said real estate in trust with power of alienation, and to hold the proceeds in trust, with the rents [50]*50issues and income, and with directions to divide the estate among the heirs of the testator.
As such trustee, she had an insurable interest in the said property, and the issuing of the said policies to her by such •designation) the property would, if it remained real estate, be properly represented by her as trustee, and if sold under the conferred power in the will, would still be represented by her until divided, as the proper legal owner and representative of said heirs or cestue que trust. The form of the policies is presumptive evidence that the insurers had knowledge of the character and title of the property they insured, and that they insured it accordingly.
The substitution of a new trustee by a judicial exercise of power did not increase the hazard or change the title to the property, and did not affect the representative character of the insured or the interest therein. This objection, therefore, has no merit.
2d. The judge found as a fact that during the term of insurance and previous to the fire, that Manila Kirk, the trustee, sold certain real estate which included the grist mill (the property insured) for the sum of $8,000 to one Henry 0. Arnold without any change of possession, and took back a mortgage for $7,000 to herself as executrix for so much of the purchase money at the time; that the policy of insurance was not assigned; that the defendant had no notice of the sale, and that no consent to the same was indorsed upon the policy, and that the insured property was worth about $4,000.
There is a provision in the policy in the following words : “If the property be sold or transferred, or if any change takes place in title or possession, whether by legal process of judicial decree, or voluntary transfer, or conveyance, * * *
this policy shall be void.” Upon this condition the defense rests, claiming a breach. The specific objection or exception to the finding of the court in this particular is, that it did not find ; that the deed and transfer of the title to the [51]*51property to Henry 0. Arnold, without the consent of the company, was a sale and transfer of the property, and-a change in the title thereof by voluntary conveyance, and that ft rendered the policy void. The-point of the appellant in this regard is confined to his exception as made. This court will not feel called upon to discuss the point upon any broader ground than that presented by the case to the court below and by the argument presented here.
The meaning and intent of insurance contracts, like all others, is to be obtained first from the language employed, and if by settled rules of construction the intent is not clear from the language itself, then the surrounding circumstances existing at the time the contract was entered into may be resorted to to solve the difficulty and to dispel any obscurity. (Dwarris, 177, 178, Amer. ed.) The trustee of the beneficiaries of the insured property was authorized (by the testator) to insure it for the beneficiaries. The form of the insurance implies, on tire part of the defendant, knowledge of this power and of the parties in interest. This interest of the beneficiaries was in the trust fund whether it remained in the real estate or became personal by alienation. This fund, or the lien which secured it, was the property insured. So long as this fund remained in the hands of the trustee, whether in real or personal estate, the trustee, as such, had an insurable interest therein. Insuring property to one for “ heirs and representatives” by necessary implication carnes the knowledge that the beneficial interest was in other than her whose name was used as the representative. The language, in its ordinary and popular sense, expresses that idea, and this made it a correct description of the insurable interest that "was insured.
As mortgagee of the same estate the trustee had the same insurable interest in the fund, as personal, as when it consisted of real estate. (Gordon agt. Mass. & F. V. Ins. Co., 2 Pick., 249.) With this presumption of knowledge by the defendants of the real ownership of interest in the fund, the [52]*52fund was the property insured; and this becomes the apt and appropriate description of the property, and is clear evidence of what is the meaning and intent of the parties, and truly indicates what property or interest was intended to be insured. (Springfield F. and M. Ins. Co. agt. Allen, 43 N. Y., 395.) And it was not necessarry, under the circumstances stated, that the interest insured should be more spefically stated. (Id. 396.) The policies were made and accepted with reference to this knowledge. So, too, it is held in a case where the description of the property insured was general, if a sale is made, and the vendor agrees to stand as trustee for the vendee, his insurable interest remains. (Per Lord Arbinger, in Powels agt. Innis 11, Mees, and W., 13.) And so where the sale is either conditional, or the vendor retains an insurable interest as mortgagee or guarantor, (1 Phil, on Ins., § 90,) and where the insurance is for the benefit of ■another who has an insurable interest in it, and the insurance in terms imports that it is for the benefit of such other. (Id., § 91.) This insurable interest has. never ceased. This interest was never transferred. It was in a fund constituted of real estate ; it remained an interest in the same estate.
The case of Hitchcock agt. N. W. Ins. Co., 26 N. Y., 68, settles the rule that in cases where there is no special clause-in the policy to the contrary, that no transfer of interest will work a forfeiture which does not entirely deprive the assignor of a policy or an insurable interest therein. In that policy was the following clause: “The interest of the assured in this policy or in the property insured is not assignable unless by the consent of this corporation manifested in writing, and in case of transfer or termination of any-such interest of the assured, either by sale or otherwise, without such consent, this policy shall from thenceforth be void and of no effect. The vessel insured was sold upon a contract retaining a lien for .$4,000, and the policy retained as security for such lien ; but no consent of the insurance company was obtained. How does that condition differ from the one [53]*53in the case at bar % “ If the property be sold or transferred, or any change takes place in the title or possession, whether by legal process or judicial decree or voluntary transfer or conveyance, * * * the'policy shall be void.”
In a very recent case of Kitts agt. The Massasoit Ins.. Co., decided at general term in the fifth judicial district, (56 Barb., 3 77,) it was held “ That the sale of property and taking back a mortgage to secure the purchase money, does not change the title within the meaning of a policy of insurance, that in case of any change of title in the property insured the policy shall.cease and determine.” See also Van Deusen agt. Charter Oak and Marine Ins. Co. (1 Robt., 55.)
These cases are easily distinguished from Lappin and Charter Oak, &c., Ins. Co. (58 Barb., 325.) There the whole title was changed, and nothing was left to bring the case free from the express conditions.
Unless, then, the clause in the policies before us operates as a forfeiture, the case comes within Hitchcock agt. The N. W. Ins. Co., and Kitts agt. The Massasoit Ins. Co. supra.
This is the real question in the case. I think the only question. If, as we have already cited eases to show it was the trust fund that was intended to be secured by insurance, there has been no transfer of that property or interest, and the judgment is right.- See authorities in cases last cited, which go still further. But it is claimed that the language of the condition in the case at bar is much stronger and more full than in Hitchcock agt. The N. W. Ins. Co., in having in it the words, “ or any change takes place in title or possession,” but in this it hardly differs from the case of Kitts agt. Massasoit Ins. Co.,. And see Ayers agt. Hartford Ins. Co., (17 Iowa, 477,) and same title, (21 Id., 185,) same title (Id., 193.) which, in effect, hold the same rule. Forfeitures are never favored in law or equity, and a contract under which a forfeiture is claimed is to be most strictly construed. This is one rule. There is no reason why it is not applicable to [54]*54this case. Vattd, in his 19 rules or-maxims of construction, lays down this for the construction of agreements: “ It
(the construction) ought to be made in such a manner that all the parts appear consonant to each other, that which follows with that which went before, unless it manifestly appears that by the last clauses something is changed that went •before.”'
Rutherford lays down the rule as follows: “When we explain a doubtful part of an agreement by the help of some other part of it, the clause which we make use of for this purpose is a circumstance which is connected with the clause to be explained, * * as they both came from the same hand, and are both formed together in the same writing. If these are sound rules, as I think they are (2 Kent, Com., 555), we find another clause in- the same policy which must be read in connection with the clause upon, which the defendant relies for his defense, which, read in the light of the above rules of construction, so qualifies and explains the condition set up as a defense, as to bring it into harmony with the rules above laid down and in cases cited from the courts. This other clause follows the condition claimed, and is in the-following words: “When property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured herein named has- ceased this- insurance on such property, shall immediately terminate.” Reading this last clause in connection with the clause set up as far as a defense: “ It so qualifies and explains the former as to take away not only the force claimed for it by the defendant, but also to make it consistent with'the law as laid down in the decisions we have above cited. It certainly becomes a necessary inquiry by the court to say, for what purpose these latter words are made a part of the agreement 1 By every rule of construction they are to be given some meaning. They cannot, upon examination, be found to add anything to the former clause. Every possible change and disposition of the property is in that provided for, [55]*55and transfer is intended by the previous clauses. But if used by way of explanation they are reasonable, consissistent, harmonious and full of meaning. They clearly explain, what kind of change which makes the policy void, viz.: one that divests the insured of all insurable interest in the property insured. The whole conditions of the policy are to be viewed and compared in all their parts, so that every part of them may be consistent and effectual. (2 Kent Com., 555.) The best interpretation is always made by the antecedents and the consequents. (2 Inst., 317.) Ex antecidentibus el consequentibus fit optima interpretation (Brown’s Maxims, 249.)
Thus construing this contract would be giving to every part of it a meaning, and that meaning consistent with every other part of the contract, and consistent also with established law. If I am right in these views of construction the contract of insurance is made a plain, simple and intelligible contract, easily understood, all its parts made to give it effect, and is taken without admitting of arbitrary, forced and technical resorts to aid in its destruction. The interpretation I have given it is a construction most conformable to the principles of natural justice; it is obtained without even resorting to the principle that one’s own covenant shall be taken most strongly against himself. It can stand without that upon a basis of good sense, having good faith to support it, as well as the moral aid of holding that agreement should be enforced, undertakings executed and promises performed.
I think the judgment should be affirmed.
Daniels and Parker, J.J., concured.