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of distributions then in force. Voorhees v. Singer, 73 N. J. Eq. 532, 534, 68 Atl. 217. See, also, section 7 of the act in relation to wills of real and personal estate in Public Laws of Rhode Island of 1844, which section remained in effect until 1896.

[5] We are of opinion that question 4 should be answered in the affirmative. Whether or not the power "to change investments from time to time as they may think necessary or expedient" has continued since the arrival of the time for distribution, it is not necessary to decide, inasmuch as the power to sell enough of the trust property to equalize its division is implied, when the trustee is directed to distribute it to and among different persons, and cannot

make the division or distribution otherwise. Ames v. Ames, 15 R. I. 12, 22 Atl. 1117; National Bank v. Smith, 17 R. I. 244, 21 Atl. 959; Pearce v. Rickard, 18 R. I. 142, 26 Atl. 38, 19 L. R. A. 472, 49 Am. St. Rep. 755; Smith v. Hall, 20 R. I. 170, 37 Atl. 698.

A form of a decree in conformity with this opinion may be submitted for approval.

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1. INSURANCE 574(5) FIRE INSURANCE -AWARD-SETTING ASIDE.

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of a loss under certain fire insurance policies issued by the defendants. The object of this bill in equity is to set aside an award made by appraisers appointed under the policies to appraise the loss. The bill sets forth substantially that previous to November 15, 1916, William B. Shepard was the owner of and Louis F. Bell the mortgagee of a dwelling house, barn, and storehouse situated in Wickford, R. I., and insured in the above-mentioned companies in the following aggregate sums: $11,000 on dwelling house; $500 on barn; $750 on storehouse. On November 15, 1916, a fire destroyed the barn and storehouse and partially destroyed the dwelling house.

Plaintiffs brought separate actions at law The bill was brought in aid of three ceron three fire policies alleging, among other tain actions at law which are being prosethings, the invalidity of the award of apprais-cuted against the same defendants severally ers. Thereafter they filed a bill in aid of such actions in the same court to set aside the award. by Shepard and Bell to recover the amount Defendants severally pleaded the general issue in the three actions, but by agreement of counsel such plea was withdrawn, and special pleas of tender filed. Defendants paid into court the amount of the award together with interest and costs pursuant to Gen. Laws 1909, c. 288, § 6, providing that defendant in every action grounded upon express or implied contract shall have the right to make and plead a tender and leave to bring into court the money which he shall acknowledge to be due, and that plaintiff shall have a right to take the same in full or in part satisfaction of the demand made in such action, and section 7, providing that, if plaintiff shall receive the same in part satisfaction only, and shall proceed further in the same action, and it shall be determined that no more is due, plaintiff shall not recover costs. The payment was accompanied by said pleas, which amounted to a confession that plaintiffs were entitled to recover the amount paid into court and left open to further determination the question as to whether plaintiffs were entitled to recover any more. Plaintiffs received and retained the amount in part satisfaction. Held, that complainants were not bound by the award and precluded from seeking to have it set aside because before hearing or decision upon their actions at law, or their suit in equity, they withdrew and retained the amount paid into

The Proofs of loss were duly submitted. parties disagreed as to the amount of the loss, and the matter went to an appraisal. The companies appointed Michael J. Houlihan; the complainants appointed Vere W. Beck; these two selected Henry L. Evans as third appraiser or umpire. The two appraisers being unable to agree upon the amount of loss and damage to the dwelling house, Henry L. Evans, as umpire, and Michael J. In bill in aid of actions at law under fire Houlihan together signed an award. The enpolicies to set aside award of appraisers, evidence held to warrant conclusion that award tire controversy between the parties is in rewas unjust, inequitable, and grossly inadequate, gard to the amount of loss suffered by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

court.

2. INSURANCE 574(7) - FIRE INSURANCE -AWARD-SETTING ASIDE EVIDENCE.

damage by fire to the dwelling house. Hen- | provisions of chapter 288. § 6, of the General ry L. Evans and Michael J. Houlihan rendered an award, estimating the total loss at $6,525, of which $4,970 was estimated as the loss to the dwelling house. Vere W. Beck refused to sign the award.

ferred to in said bill. Said pleas, except as to
the names of the companies and the amounts
stated, were in the following form:
""The
Company, comes and defends the
wrong and injury when, etc., and as to all the
supposed promises and undertakings in said dec-
laration mentioned excepting the sum of $
parcel of the said several sums of money in said
declaration mentioned, says that it did not un-

Laws of Rhode Island 1909, the sum of, to wit, $4,970, being the amount of the award referred to in said bill of complaint, together with interest and costs thereon to the date of payment into court, said payment being accompanied by a plea filed in behalf of each defendant in the several actions at law in aid of which the presThe complainants charged that the dwell-ent bill in equity is brought, and which are reing house was damaged to the amount of $9,000. This the defendant denied, and averred that the damage did not exceed $4,970. Thereafter the complainants asked for a second appraisal on the ground that the pretended award by Houlihan and Evans was void on grounds set forth in the bill, and this demand was refused by the insur-dertake or promise in manner and form as the ance companies. The complainants alleged, among other things, that the appraisers failed to take into consideration and failed to allow any amount for the loss occasioned to certain items of construction in the dwelling house, and that they were not impartial and disinterested.

The respondents admitted that the dwelling house was partially destroyed, that the loss was covered by the policies, that a second appraisal had been demanded and refused by them, but denied that the appraisers had either omitted any essential items in their appraisal, or that they were unfair or prejudiced in their action in making the award.

"And as to the said sum of $

said plaintiffs have thereof complained against
it, and of this it puts itself upon the country.
parcel
of the said several sums of money in said declar-
ation mentioned, the said defendant says that
the said plaintiffs ought not further to have or
maintain their aforesaid action against it to
recover any more or greater damages than the
said sum of $ because it says that it now
is ready to pay the said plaintiffs the said sum
of $
parcel of the said several sums of
money in said declaration mentioned together
with the plaintiff's lawful costs heretofore ac-
and it now asks leave
crued, a total of $-

to bring the same into court, and now brings
and pays the same into court, here ready to be
paid to the said plaintiffs if they will accept
the same, and this the defendant is ready to
verify.

"Wherefore it prays judgment if the said plaintiffs ought further to have or maintain their said action against it to recover any more or greater damages than the said sum of $ parcel of the several sums of money in said declaration mentioned. By Its Attorneys.'

"(2) On the 17th day of September, A. D. 1917, the complainants (plaintiffs in said ac tions at law) took and received said sum so paid into the registry of the court by the respondents (defendants in said actions at law), and said complainants gave, and the clerk of said court received, a receipt therefor in the following form: 'Received of W. Herbert Caswell, clerk of the superior court for Washington county, the amount of one thousand one hundred and eighty-nine and 58/100 ($1,189.58) dollars, being the amount paid into the registry of the said court by the Springfield Insurance Company in the case entitled William B. Shepard et al v. Springfield Insurance Company, under its Said amount is taken and replea of tender. ceived by us in part satisfaction only of the demand made by us in the above-entitled action, and without waiving any rights or remedies to recover the full amount due and owing us as alleged in the declaration.'

The three actions at law upon the three policies above referred to were brought in the superior court in Washington county, by writs dated March 21, 1917, and were duly entered on the return day, March 31, 1917, and therein allegations were made setting forth the plaintiffs' claims as to the invalid ity of the award above mentioned. These suits were brought and entered within the time limited in the several policies for bringing suits at law. The bill in the case at bar in aid of these actions at law was filed in the same court April 4, 1917, and the joint and several answer of the respondents was filed in said court July 27, 1917. It appears that on or about this last date the defendants severally pleaded the general issue in the three actions at law, and that thereafter, in September, 1917, by agreement of counsel they withdrew these pleas of the general is"(3) The complainants have not repaid or resue and filed certain special pleas of tender, stored or offered to repay or restore to the remore particularly set forth below. The spondents or to any of them the sum so receivfacts with regard to the several pleas of ten-ed by the complainants or any part thereof, but der and to the withdrawal by plaintiffs of have retained and still retain the same. sums of money paid into the law court by defendants in the actions at law are set forth by stipulation filed in this court as follows:

"Stipulation.

"In the above-entitled cause it is hereby stipulated that in addition to the facts set forth in the bill of complaint and in the answer of the respondents the following facts have been established since the filing of said bill of complaint:

"(1) On the 12th day of September, A. D. 1917, the respondents, each contributing its several proportion, paid into court under the

"(4) That on the 17th day of September, A. D. 1917, the complainants filed in the above actions at law pending in the superior court for Washington county, R. I., a replication in each of said cases which, except as to the names of the companies and the amounts, are as follows:

"Now come the plaintiffs, and for replication to the defendant's plea of tender filed in the above-entitled action say that they accepted the sum of two thousand six hundred and nineteen and 93/100 ($2,619.93) dollars paid into the registry of the court by the defendant in part satisfaction of the plaintiff's claim against said defendant, but say that at the time of the making of said tender in said plea alleged there

(11) Did Appraiser Houlihan and Umpire Evans consider the cause and origin of the fire in reaching the amount of damage to the frame dwelling house?

was, and still is, a larger sum than two thou-, of their honest and deliberate judgment and sand six hundred and nineteen and 98/100 ($2,- without prejudice or partiality? 619.93) dollars due and owing to the defendant as set forth in the plaintiffs' declaration against the defendant; and said plaintiffs further say that said sum of two thousand six hundred and nineteen and 98/100 ($2,619.93) dollars was not tendered to them before the commencement of this action, and of this they put themselves upon the country. By Their Attorneys.' "(5) And it is hereby further stipulated that the court may consider the above facts and their bearing upon the liability of the respondents herein and the rights of the parties hereto in the same manner and with the same effect as though said facts had been set up by way of plea and supplemental bill filed and said pleas set down for hearing."

This cause came on to be heard before Mr. Justice Barrows upon bill, answer, replica tion, proofs, and the aforesaid stipulation. Issues of fact were framed and agreed upon by the parties, and the last or twelfth issue was abandoned by the complainants during the hearing.

A large amount of testimony was submitted by the complainants in support of these issues of fact. At the close of the proof offered by the complainants the respondents, having offered no testimony, except the award itself, which appears on file as their Exhibit A, moved to dismiss the bill of complaint upon the following grounds:

(1) That the facts established by the stipulation aforesaid show an election on the part of the insured to accept the award.

(2) That the proof offered by the complainants was not such as to warrant a decision in their favor upon any of the material issues of fact.

The motion to dismiss was granted; the

The following constitute the issues of fact trial court adopting as the reasons for so submitted to the trial court:

(1) Was the frame dwelling house described in the fifth paragraph of the bill of complaint damaged to the extent of $9,000?

(2) Did the damage to the frame dwelling house exceed the sum of $4,970?

(3) Did the defendants or any of them refuse to furnish the plaintiff, Shepard, with a copy of the award described in the bill of complaint?

(4) Were Appraiser Houlihan and Umpire Evans disinterested, and did thy act with impartiality in making their appraisal?

(5) Did Appraiser Houlihan and Umpire Evans refuse to take into consideration certain items of damage to the frame dwelling house in making their appraisal of the loss sustained and in making their award?

(6) Did Appraiser Houlihan and Umpire Evans refuse to take into consideration loss and damage to that certain portion of the construction of the frame dwelling house known as double sheathing in making their appraisal and award?

(7) Did Appraiser Houlihan and Umpire Evans refuse to make any allowance for the loss arising from the damage to that portion of the construction of the dwelling house as set forth in issue 6 in making their appraisal and award?

(8) Did Appraiser Houlihan and Umpire Evans refuse to take into consideration in estimating the sound value of the dwelling house betterments which had been made to the dwelling house since the purchase there of by the plaintiff Shepard?

(9) Was the amount of $4,970 allowed by Appraiser Houlihan and Umpire Evans known by them to be insufficient to pay the loss sustained by the plaintiff from the damage to the dwelling house?

(10) Was the amount of $4,970 fixed by the umpire, Henry L. Evans, and Appraiser Michael J. Houlihan arrived at in the exercise

doing both of the grounds urged by the respondents. The present proceeding is the complainants' appeal from the decree dismissing the bill of complaint.

[1] The questions raised are two:

(1) Are the complainants bound by the award and precluded from seeking to have it set aside by reason of the fact that before hearing or decision upon their actions at law, or their suit in equity, they withdrew and have retained the amounts paid into court?

(2) Are the complainants entitled to have the award set aside upon the proof offered by them?

Upon careful consideration of both questions this court is of the opinion that the trial court erred in its determination of each of them.

As to the first question, it is to be noted that the pleas of tender in the three law cases were filed (after withdrawal of pleas or the general issue which they had at first filed) as special pleas to declarations which expressly allege the invalidity of the award upon several grounds substantially as set forth in the bill in equity filed and prosecuted in aid of the actions at law. Since this court had previously determined that under our prac tice, which has always preserved the distinction between actions at law and proceedings in equity, it was not possible to impeach an award under an insurance policy in an action at law on the policy (Early v. Providence & Washington Ins. Co., 31 R. I. 225, 76 Atl. 753, 140 Am. St. Rep. 750), and since this court had also determined that a bill in equity in aid of an action at law, filed after the action at law had been instituted on an insurance policy, is a proper proceeding for the purpose of setting aside an award under an insurance policy so as to enable the insured to recover in excess of the award (Hirsch v. Home Ins. Co., 38 R. I. 189, 94 Atl. 722), the

procedure in the case at bar up to this point | satisfaction when in fact the plaintiffs have is in accordance with our decisions.

The pleas of tender in the three actions at law above referred to were filed under and pursuant to Gen. Laws R. I. c. 288, §§ 6, 7, which read as follows:

"Sec. 6. The defendant in every action grounded on an express or implied contract that may be pending before any court shall have the right to make and plead a tender, or may have leave to bring into court the money which he shall acknowledge to be due on such contract, * together with the plaintiff's lawful costs up to the time of the tender made or pleaded, or the bringing of the money into court; and the plaintiff shall have a right to take the same in full or in part satisfaction of the demand made in such action.

"Sec. 7. If the plaintiff in either of the above cases shall receive the same in part satisfaction only and shall proceed further in the same action, and the court or jury who shall finally assess the damages in such case shall determine that no more was due on the demand made in such action than was tendered or brought into court, as aforesaid, at the time the same was tendered or brought in, the plaintiff shall not recover costs, but shall be obliged to pay the costs accruing after such tender or after the money was brought into court as aforesaid, as the case may be.'

It may be noted, in passing, that these pleas of tender do not expressly claim to be made under and for the purpose of carrying out the award, since the award is not mentioned in them and the several sums brought into court do not together aggregate the amount of the award. Apparently, however, this point is waived by the terms of the stipulation, and the pleas are to be treated as if they expressly referred to the award. The defendants, with full knowledge of all these claims on the part of the plaintiffs in regard to the invalidity of the award, with notice given by allegations of invalidity both in the declarations at law and in the bill in equity, having seen fit to bring into court the amount of the award and to admit by their pleas that they are liable at least to that amount, by the very terms of their special pleas raise only the issue which is tendered in the final clause thereof. "Wherefore it prays judgment if the said plaintiffs ought further to have or maintain their said action against it to recover any more or greater damages than the said sum of $ parcel of the several sums of money in said declaration mentioned."

These pleas amount to a confession that the plaintiffs are entitled to recover the amount paid into court, and by their very terms leave open to further determination the question whether or not they are entitled to recover any more. The terms of section 6 and section 7 plainly authorize the plaintiffs to take what is paid into court in part satisfaction and to proceed further to determine whether or not they are entitled to recover more. We are of the opinion that the terms of the statute are quite applicable to the cases here under discussion and are too plain for argument, and that the contention of the defendants that the plaintiffs' actions at law are

done only what the statute plainly authorized them to do is entirely without support. No cases are cited on either brief which have any application in support of this contention or any application to the construction and effect of this statute; we assume that, if there had been any such cases, counsel would have found them and submitted them to us.

Counsel for defendants argue that because there was an award, and because in the law suits it was impossible for the award to be set aside, the plaintiffs could only recover at law the amount of the award, and that the acceptance of the amounts paid into court was an acceptance of the award and conclusive of the rights of the plaintiffs to recover anything more. In this argument counsel ignore the very purpose of the whole procedure, which includes this bill in equity as an auxiliary proceeding to set aside the award as a necessary preliminary to further proceedings at law. It cannot be successfully argued that plaintiffs have accepted the award in view of the whole procedure which assails it and in view of the plain terms of the statute above quoted. Such a conclusion would nullify the statute.

[2] We come now to the second question, viz: Are the complainants entitled to have the award set aside upon the proof offered by

them?

The only testimony offered on behalf of the respondents is the paper headed "Agreement for Submission to Appraisers," which we find on file marked "Respts'. Ex. A." In that agreement, dated November 17, 1916, which seems to be in the common printed form used by insurance companies and to be in substantial accord with the terms of the policies, it is agreed:

"That Vere W. Beck for assured and Michael J. Houlihan for the companies shall appraise and estimate the loss upon the property damaged and destroyed by the fire of November 15, of disagreement the said appraisers shall select 1916, as specified below: Provided, that in case a third, who shall act with them in matters of difference only. The award of said appraisers, or any two of them, made in writing, in accordance with this agreement, shall be binding upon both parties to this agreement.

"It is expressly understood that this agreement and appraisement is for the purpose of ascertaining and fixing the amount of sound value and loss and damage only to the property hereinafter described, and shall not determine, waive, or invalidate any other right or rights of either party to this agreement.

the loss or damage is to be determined is as "The property on which the sound value and follows, to wit: Dwelling, $11,000 on story frame building and additions while occupied only as a private dwelling, including plate and ornamental glass in doors and windows, decorations on walls and ceilings, chandeliers, electric and gas fixtures and fittings, piping and plumbing work and fixtures, apparatus and fixtures for heating and cooking," etc. tion of property insured in the policies). appears to be in the same terms as the descrip

(This

Then follows this concluding paragraph: "It is further expressly understood and agreed that in determining the sound value and the

mentioned the said appraisers are to make an, pointment. It is only when we examine the estimate of the actual cash cost of replacing testimony of Mr. Beck in this cause that we or repairing the same, or the actual cash value thereof, at and immediately preceding the time of the fire; and in case of depreciation of the property from use, age, condition, location, or otherwise, a proper deduction shall be made

therefor."

find that Beck and Houlihan did examine the property together and did make their figures regarding the loss and damage, and that they were unable to agree, and that Evans, acting as umpire did finally agree with Houlihan's figures, and thereafter sign

The agreement was executed by W. B. Shepard and the agents of the three insured the award with him, Beck refusing to ance companies November 17, 1916. On the back of the same sheet appears the engagement of the two appraisers Beck and Houlihan under oath:

"That we will act with strict impartiality in making an appraisement and estimate of the sound value and the loss and damage upon the property herein before mentioned, in accordance with the foregoing appointment, and that we will make a true, just, and conscientious award," etc.

Following that is the "Selection of Third Appraiser," wherein the said Beck and Houlihan select and appoint Henry L. Evans "to act as the third appraiser to settle matters of difference that exist between us," etc.; then the "Qualification of Third Appraiser" under oath, wherein said Evans accepts the appointment as third appraiser, and swears

that he "will act with strict impartiality in

all matters of difference only," etc. Then follows the "Award of Appraisers," which

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1st Item. Main house and ell.. $13,000 00 2d Item. Barn, etc. 1,372 00 870 00

3d Item, Garage

Loss.
$4,970 00
824 00
731 00

Total sound value and loss $15,242 00 $6.525 00 "Witness our hands this 2d day of Dec., 1916.

"[Signed] Henry L. Evans, Umpire.
"Michael J. Houlihan,
Appraisers."

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We have been thus particular in reciting the terms of this submission and award because the respondents appear to claim that the award is valid upon its face and is entitled to the presumption that it is correct, and that it is not to be set aside except for very grave reasons and upon very strong testimony, and that respondent therefore need offer no testimony except the award itself.

sign because he deemed the award grossly inadequate and because certain items of loss were entirely omitted. Since, therefore, we find that the award is not valid upon its face because it does not show that the appraisers and the umpire acted strictly in accordance with their duties under and in the manner provided by the submission, and since we can only determine just what was done by the appraisers and the umpire from the testimony, we can give very little weight to the award as testimony, particularly in view of the fact that the award simply fixes certain total sums as the loss, but gives us no details or methods by which those sums were determined by them, does not state what items of loss were allowed to make up

the sum of $4,970, and furnishes no means

of comparison with the testimony offered on the part of the complainants. The court is in the situation of having before it the testimony adduced by the complainants with practically no defense offered except the award itself, which amounts, as we have shown, to a mere statement that the amounts claimed by the complainants are greater than they should be.

After a careful examination of all the testimony offered by the complainants, we find that there is ample evidence to support several of the issues which have been heretofore set forth. Complainants examined Mr. Beck at length as to the details of the appraisal, and his testimony, given in great detail and with apparent frankness and sincerity, convinces us that the award of $4,970 as the loss upon the dweiling house (being the only amount disputed) was grossly inadequate. He testified that the cost of replacing the dwelling house in as good condition as it was at the time of the fire would be about $9,400, and was examined in great detail as to items of loss which went to make up that amount. He was a builder of long [3] In our opinion the award is not valid experience and undoubted and undisputed upon its face. It is signed only by one ap-qualifications, and we do not find that his praiser and by the umpire. It does not testimony was shaken or materially weakendisclose that any "matters of difference" ed upon a long and searching cross-examinahad arisen between Beck and Houlihan which Evans the umpire was called upon "to settle." For all that appears upon the face of the award, Beck did not act at all as an appraiser with Houlihan. He might have been absent or dead or ill and unable or unwilling to act. So far as the face of the award shows, it is the act of Houlihan and Evans acting without Beck, and not at all

tion. He also testified, in partial explanation of the discrepancy between his figures and those of the other appraisers, that they refused to make any allowance for certain important items of loss which undoubtedly occurred. It appears that there was upon the roof of the main portion of the dwelling house a balustrade extending all the way around the roof just back of or upon the jet,

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