Wyman v. Prosser

36 Barb. 368, 1862 N.Y. App. Div. LEXIS 57

Opinion

By the Court,

Johnson, J.

Policies of insurance are not deemed, in their nature, incidents to the property insured. They are mere special agreements with the person insuring against such loss or damage as he may sustain. They do not cover any interest which another person may have in the same property, as heir, grantee, mortgagee or creditor, unless such other has a valid assignment of the policy. (Carpenter v. The Providence Washington Ins. Co., 16 Peters, 495.)

The promise here is, in terms, to the assured, his executors, administrators and assigns. In just such a case as this, where the assured died, and the property insured descended to the heir, who had no assignment of the policy, and a loss happened afterwards, it was held that the loss was payable to the executor, and not to the heir. (Mildmay v. Folgham, 3 Ves. 472. Angell on Ins. 403, § 389.) The same rule is laid down by most if not all of the writers on the subject of insurance. Indeed, it results necessarily from the nature of the contract. It being a mere personal contract, in no way attached to, or running with, the real property insured, it does not pass with it, either to the grantee or the heir. The executor, or administrator, is the only one who can take it and enforce it.

The judgment must therefore be affirmed.