or real estate. The court tried the case on the theory that there was a total loss, and that the property insured was real estate, or on the theory that, since the adoption of the so-called valued policy law in this state, the statutory provisions for the adjustment of fire losses are the same, whether the property destroyed is personal or real. As we have seen, the evidence tended to show that the building containing the machinery comprising the ice plant and soda pop factory was standing on the right of way of the St. Louis & San Francisco Railroad Company, which had been leased to plaintiff prior to the time of the issuance of the insurance policy in question, and that the boiler, engine, compressor, condensers, brine tank, and pipes, comprising the machinery of the plant were in the frame, metal-roof building insured, and were used for making and keeping ice, and that the bottles, cases, filters, etc., were such as are commonly used in bottling plants. Under the evidence, it is apparent that the relation of the plaintiff to the railroad company was that of a tenant. It is an elementary principle of the common law that land includes houses and buildings standing thereon; and that whatever is affixed to the soil is thereby made a part of it and passes by grant of the land, without other designation. Personal property prepared and intended to be used with the land, having been affixed to it and used with it, becomes a part of it by accession. To this general principle, there are equally well-settled exceptions, under which fall trade fixtures, and as between landlord and tenant, annexations made by the tenant in aid of his trade are, on grounds of public policy, removable by the tenant, because they are not presumed to have been annexed with the intention of making them permanent additions to the realty, and they continue to be personal property. * It is said that there is no precise definition of a trade fixture; but generally, where additions to the realty are to the pecuniary advantage of the tenant, they are probably trade fixtures. 19 Cyc. 1065. In the absence of contract, there are certain limitations on the right of the tenant to remove trade fixtures, occasioned by the nature of the fixture, degree of annexation, the effect of removal from the freehold, and several other restrictions; among others, where the fixture is so incorporated with the realty as to show an intention to make it a permanent addition, or where its removal will seriously injure the realty. In this case, the evidence fails to show any express contract between the railroad company, as lessor, and the plaintiff, as lessee, as to the conditions on which the plaintiff attached the ice plant and soda pop factory to the building; but they were undoubtedly attached for the advantage of the tenant. The evidence was insufficient to warrant the conclusion that the subject-matter of the insurance in this case was other than trade fixtures, as the evidence did not show that the machinery or building were so incorporated with the freehold as to become a permanent part thereof; and hence as between landlord and tenant, the reasonable conclusion is that they remained personal property. * * *

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Section 7030 of the same chapter provides that no company shall take any risk on any property in this state at a ratio greater than three-fourths of the value of the property insured, and when taken its value shall not be questioned in any proceeding. This provision has been held to be a general one, and to apply as well to real as personal property. And a policy on chattels is valued only to the extent of precluding the company from denying their value when the policy was written.

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The court, of its own motion, gave the following declaration of law: The court declares that, as the law prohibits an insurance company insuring property at more than three-fourths of its value, it will be presumed, in the absence of evidence of fraud in such valuation, that the property at the time the insurance was taken was of the value of one-third more than the amount for which it was insured, and, as there is no evidence in this case of any depreciation of value from the time of the insurance until the time of the fire, and no evidence that the property burned was of any value after the fire, and the only evidence as to any change or alteration of conditions, value, or situation of the property insured from the time of the insurance to the date of the fire being the removal from the building of a portion of the property insured, the finding should be for the plaintiff for the amount for which the property was insured, less the pro rata value of the property so removed and not destroyed, as between the policy sued on in this case and the other policies. And the court further declares that an agreement to appoint two persons as arbitrators, one to be selected by each party, and for the two to select a third party as referee, will not preclude a policy holder from suing on the policy, when it appears that the arbitrators cannot agree as to such referee, and have, without any fault or wrongdoing on the part of the plaintiff, entirely abandoned all efforts to arbitrate such loss."

It will be seen from this declaration of law that the court held that, because there was no evidence of the depreciation of value of the property insured between the date of the insurance and the time of the fire, and because there was no evidence that the property burned was of any value after the fire, and no showing that the situation of the insured property from the date of the insurance to the date of the fire was changed, the plaintiff should recover the full value for which the property was insured, less the pro rata value of the property removed. This was a trial of the case on the theory that the property insured was real estate. But, as the property insured was personal property, it was erroneous to declare that it devolved upon the defendant to show the actual value of the property at the time of the loss, as the policy provided that the damage should be ascertained and estimated in accordance with the actual cash value, with proper deduction for the depreciation, however caused. In such case, it devolved upon the plaintiff to show the actual cash value of the property insured at the time of the fire and his consequent loss by reason of its destruction; but, as evidence of the value of the property at the time of the loss, he would have a right to show that, the property having been insured for three-fourths of its value under section 7030, its value at the time of the fire was four-thirds of the amount of the insurance; and the defendant company would be estopped from denying that such was not the true value of the property on the date the policy of insurance was issued. The effect of this statute is very clearly stated in Stevens v Fire Ins. Co., 120 Mo. App., loc. cit. 107, 108, 96 S. W. 684, as follows: "It does not command that for all the years of the risk covered by the policy and during its life the goods shall remain at the value of $800, or of any other amount. It operates only to fix the value at the time of the issuance of the policy, and denies the right of the insurance company to thereafter say that at that time they were not of the value mentioned. *** That the whole theory of insurance is based upon the idea of indemnity only is

fundamental, and, except something more than this is affixed by the statute or policy, the insurer, as a matter of common justice, has the right always to settle on the basis of indemnity for the loss suffered. * * * The section of the statute quoted renders the policy on chattels valued only in so far as it precludes the company from denying their value as mentioned when the insurance was written, and, aside from this, it does not influence the question in the least."

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The defendant subsequently introduced as a witness Joseph Raskilly, who qualified as an expert in the sale and erecting of ice machinery, and who stated that on December 10th and on January 11th he was familiar with the cost and value of ice machinery, and was familiar with the machinery that F. W. Wolf & Co. of Chicago manufactures and puts up. After having thus qualified as an expert as to his knowledge of machinery similar to that of the plaintiff, he was asked this question: "At the time named, December 24, 1910, state to the court the value of one of such plants of six-ton capacity, installed and ready to run at Thayer, Mo.?" He was also asked whether he was able to state at that time what it would cost to purchase and install one of Wolf's plants, such as had been described to him, after he had stated that he knew the value of such a plant. The answers to the above questions were objected to by the plaintiff and sustained by the court. As the cash value of the plaintiff's property at the time it was destroyed by fire on December 10th was in issue, we think the evidence was competent and admissible; its probative value to be determined by the triers of the fact.

The legal definition of what constitutes a "total loss," as these words are used in the statute concerning valued policies, has no application to cases of insurance of personal property and the adjustment of losses thereunder. The plaintiff's evidence tended to show that the fire did not cause a total loss of the property covered by his policy of insurance. The plaintiff, as a witness, testified that, while the brine tank. was warped by the heat, it could be repaired by sending for a man and having the tank taken apart and re-riveted; that, as to the condensers, the solder on the ends was melted, and, while they would be useless for making ice, they could probably be repaired, but that they would have to be sent elsewhere to be tested; that, as to the engine, it could be repaired so as to be used for a sawmill and cheap purposes. As to the condition of the boiler, no evidence was offered. If any of the property insured, after the fire, was suitable for any purpose, and by reason thereof had a market value, such value should be taken into consideration in ascertaining plaintiff's actual loss, or the damage he had suffered.

As this case is to be retried on the theory that the subject-matter of the insurance was personal property, it is suggested that plaintiff amend his petition so as to conform to that theory, and that his petition should state the value of the property at the time of the fire, what pecuniary interest he had in it, and that the loss was due and payable. We are of the opinion that the case was tried on the wrong theory, and the judgment is accordingly reversed, and the cause is remanded. for a new trial. All concur.

(a) IN LIFE INSURANCE

AMERICAN MUT. LIFE INS. CO. v. MEAD.

(Appellate Court of Indiana, 1906. 39 Ind. App. 215, 79 N. E. 526.) * * The only facts pleaded * * MYERS, C. J. * * show that appellee applied to appellant, an Indiana corporation doing a general life insurance business on the assessment plan, for a policy of insurance on the life of Mrs. Hammond, his mother-in-law; that a policy on her life on such application was issued to him by appellant; that appellee paid the membership fee and all assessments or premiums as they became due on account of said policy. In our judgment, these facts affirmatively show appellee's lack of a monetary interest in the life insured, and are prima facie sufficient to show that the policy was void ab initio. This conclusion is affirmed by the well-settled rule that an insurable interest in the life of another is founded upon a pecuniary interest, not satisfied by the relationship shown to exist between Mrs. Hammond and appellee.

BROGI v. BROGI.

(Supreme Judicial Court of Massachusetts, 1912. 211 Mass. 512, 98 N. E. 573.)

Action by Anni Brogi, administratrix, against Mary Brogi, alias Mary Roache. Verdict for defendant, and plaintiff brings exceptions. HAMMOND, J. The policies, being based upon the interest of the assured in his own life, were supported by an insurable interest, and so far as respects this matter were valid.

The beneficiary named was "Mary E. Brogi, wife" of the assured. It is argued by the plaintiff that the defendant was made a beneficiary in her capacity as a wife and not as an individual; that she was not the lawful wife of the assured and hence was not a legal beneficiary. But this position is untenable. The defendant had been through two ceremonies with Brogi in the state of New York, which even if void here by reason of our statutes, were nevertheless valid in that state and hence valid everywhere except in this commonwealth. And while we may not recognize the validity of the marriage when she is here seeking the rights of a wife under our laws, we must not close our eyes to the fact that there has been a marriage ceremony between

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her and Brogi; that at the end of that ceremony they stood side by side as lawfully wedded husband and wife under the laws of the state of New York and of every other state except Massachusetts. At the time the policies were procured the parties were living together as husband and wife in reliance upon the marriage ceremonies. In the interpretation of the language of the policy we are not to determine whether in this state the beneficiary was the legal wife of the assured, but whether by the term "wife" he meant her; and there can be no doubt that he did. She was the person named as the beneficiary. whatever may have been her relation to him.

It is next argued that the defendant not being recognized as the legal wife of the beneficiary had no beneficial interest in the life of the assured, and that consequently she was not a lawful beneficiary. It may be doubted whether under the peculiar relation she sustained to her reputed husband she had not an insurable interest in his life. But we have not found it necessary to consider that question.

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Whether an assignee or a beneficiary must have an insurable interest in the life insured is a question upon which there is an irreconcilable conflict among the authorities. The law in this commonwealth has been settled, and it is now held, in accordance with what seems to be the great weight of authority, that in the absence of any evidence indicating that the transaction was intended as a wagering contract it is not necessary that the beneficiary or assignee should have an insurable interest. * * * There was no evidence in this case that a wagering transaction was intended by the parties. The validity of the designation of the beneficiary is not affected by her want of an insurable interest in the life insured. She was the legal beneficiary even if she had no insurable interest. Exceptions overruled.

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(b) IN FIRE INSURANCE

LA FONT v. HOME INS. CO.

(Springfield Court of Appeals, Missouri, 1916. 193 Mo. App. 543, 182 S. W. 1029.)

The plaintiff conveyed to his wife an undivided half interest in premises and took a fire insurance policy in his own name. After loss and refusal of the insurance company to pay, the plaintiff brings action against the insurance company for the amount named in the policy. From a judgment for plaintiff, defendant appeals.

ROBERTSON, P. J. * * At the very outset, we are met with the insistence in behalf of the defendant that the plaintiff should not, as a matter of public policy, be allowed to insure the undivided one-half interest in the property owned by his wife and collect the insurance thereon, and that no waiver or conduct on the part of the defendant could legalize such insurance. We concede that proposition to be true, and we have held that a party cannot collect insurance upon property in which he has no insurable interest.

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The judgment is reversed, and the cause remanded.