furniture, and some money in bank, to the amount of $32,231.95. There remains of said estate, after the payment of the funeral expenses and the debts, the sum of about $32,000. The testatrix left, her surviving, the defendant Mary Scott, the defendant Eliza Jane Dumville, and the defendant William K. Mackey, being her only children, and grandchildren, the children of Eliza Jane Dumville, -Lillian Dumville, Florence A. Dumville, and Nettie E. Dumville,— and Luella Scott, the daughter of Mary Scott. The son, William K. Mackey, has no children. The plaintiff claims, as executor, that he should have the control and disposition of the property of the deceased, and pay over to the several life owners during their lives. the use of the one-third of the property given to each. The defendant William K. Mackey claims that his third should be paid to him; that he should control it during his life, without interference from the executor. The children of Eliza Jane Dumville, represented by their guardian, desire that the executor should continue in control of the property, as claimed by him. The executor has given no security for this large amount of property, or any portion of the same. The defendant Mackey contends that, after deducting the $100 for cemetery purposes, and the expenses which should come out of the corpus of the estate, he has a right, under the will, to one-third of the estate, without giving security, and that it is the duty of the executor to pay it over to him. I think the conditions of this will are satisfied by giving the children of the deceased the use of their respective shares. The legacies are in no sense specific, but general, and the executor, under his general powers, unless. otherwise directed by the court, can take control of this fund for that purpose, keep it invested, and pay over the interest to the life owners, thus acting as trustee for both the life owners and the remainder-men. This would, perhaps, be the ordinary course, and would not be interfered with, if we had anything but the personal responsibility of the executor for this large sum of money. The parties all seem to have the utmost confidence in the executor; the deceased evidently had full confidence in him; but many years may elapse before the life owners shall cease to exist, and in the changes and dangers of business affairs it cannot be said that misfortune or harm might not come to this executor, and the fund be lost, or some portion of it. Nor do I feel disposed to compel him to give security if I had the power. The court has undoubted power to direct the executor to pay over to the life owners their respective shares of the estate upon their furnishing adequate security. 2 Woerner, Adm'n, § 456: Tyson v. Blake, 22 N. Y. 558; In re Gillespie, 18 Abb. N. C. 41; Monfort v. Monfort, 11 Wkly. Dig. 543; De Rivas. V. De Herques, 12 Wkly. Dig. 87; Smith v. Van Ostrand, 64 N. Y. 282; Livingston v. Murray, 68 N. Y. 492, 493; Bliven v. Seymour, 88 N. Y. 478. The rule borne out by these cases is thus laid down in Smith v. Van Ostrand, 64 N. Y., commencing at the bottom of page 281, and is as follows:

"When a life estate is bequeathed in a sum of money, with remainder over, the legatee is entitled only to the income, and the principal, subject to thelife estate, belongs to the remainder-man; and, unless otherwise directed by

the will, it is the duty of the executor either to invest the money, and pay the interest to the first legatee during life, and preserve the principal for the remainder-man, or, on paying it over to the legatee, to require security from him for the protection of the remainder-man in respect to the principal."

And again, in Livingston v. Murray, 68 N. Y. 492, 493, the court says:

"When the remainder-man is willing and able to give security for the fund, it has been considered just that he should receive it so that he could manage it and reap all the income he could make, free from the charge of commissions by an executor or trustee. In such case care should be taken to secure the corpus of the fund or estate for the remainder-man, and the security taken should be adequate for that purpose."

I have reached the conclusion that if the owners of the life estate give adequate and satisfactory security, to be approved by a justice of this court, to those entitled to the remainder, within three months from the entry of the judgment herein, they should be respectively entitled to take one-third of the estate, deducting the $100 mentioned in the first clause of the will, the expenses of the executor, and any taxes which may have been assessed or may have been paid by the executor, together with such fees as the executor may by law be entitled to receive, into their own care and control. In the case of William K. Mackey, a bond should be executed to his sister Mrs. Dumville and her children, and also another bond to Mrs. Scott and her daughter; and in case he should have a child, who would be entitled to take under the will upon his decease, that he shall also execute a bond as security to such child, in such amount, in such form, and under such conditions as the court may hereafter prescribe. That the security to Mrs. Dumville and her children shall be equal to double the amount of one-half of the property received by him from the executor, and the security to be given to Mrs. Scott and her daughter shall be double the amount of the remaining half received from the executor. That the security given by the other life owners, respectively, Mrs. Scott and Mrs. Dumville, to the persons entitled to take the remainder of their estates, shall be in double the amount received by them, respectively, That each instrument of security shall be executed by at least two sufficient sureties, who shall be freeholders within this state, and each shall justify in a sum equal to the amount of the bond. That any party interested in the estate can at any time apply to the court to increase such security, or to substitute other sureties upon the bond, or any of them. That each of said bonds shall be in substance, and to the effect, that said owner of the life estate shall carefully preserve the property by him or her received, and only have and receive the use thereof, so that at the decease of the life owner the principal of the estate received by him or her shall be unimpaired and complete, and not diminished or decreased by any act of the said life owner. I do not assume to indicate the exact form of these bonds, but they may be prepared and submitted to the court for approval. Any of the persons entitled to the use of this property for life may permit his or her share to remain with the executor, and in that event the executor will keep the share secured

properly and safely invested at interest for the benefit of the parties interested, and pay over to the life owner the interest or use of the property invested. The order may be entered, confirming the ref eree's report herein, and carrying out the views and purposes herein expressed. If the parties interested cannot agree upon a proper order to be entered, settlement of this order may be made upon eight days' notice. Ordered accordingly.

(75 Hun, 83.)

RADEMACHER v. GREENWICH INS. CO. OF CITY OF NEW YORK. (Supreme Court, General Term, First Department. January 12, 1894.) 1. OPINION EVIDENCE-VALUE OF GOODS.

In an action on a fire policy covering household goods, plaintiff, who is shown to have been for many years engaged in housekeeping, and familiar with the prices of similar articles, may testify what, in her opinion, the articles destroyed were worth.

2. INSURANCE-ACTION ON POLICY-PROVISION FOR ARBITRATION.

The appraisers appointed to determine the amount of a loss, as provided by the policy in case of a dispute between the parties, were unable to agree. For the purpose of choosing an umpire, defendant's appraiser sent four names to plaintiff's appraiser, who, after a delay of some days, rejected them all, and proposed three names to defendant. Defendant refused to accept any of those proposed by plaintiff, on the ground that their standing was not good. Held, that the question whether plaintiff acted in good faith was for the jury.

Appeal from circuit court, New York county.

Action by Caroline Rademacher against the Greenwich Insurance Company of the City of New York. From a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER, JJ.

Robinson, Bright, Biddle & Ward, (E. Randolph Robinson and Henry Galbraith Ward, of counsel,) for appellant. Louis Cohen, for respondent.

O'BRIEN, J. Chapter 488 of the Laws of 1886 provides for a uniform policy of insurance, known as the "Standard" policy, and makes its use compulsory upon insurance companies. Such a policy the defendant issued to the plaintiff on wearing apparel and household goods, some of which, it is claimed, were totally, and some partially, damaged by a fire occurring on the 23d day of February, 1891. The policy contained the usual clauses to be found in standard policies, requiring the insured, if a fire occurred, to give immediate notice of any loss, and the further clause providing for an arbitration in the event of disagreement as to the amount of such loss. Upon these clauses, and the fact that the plaintiff claimed $627.66 as her damage, the questions presented upon this appeal turn.

The plaintiff alone testified as to value, and not only her competency, but the question of the weight to be attached to her evi

dence, is presented by proper exceptions. It was insisted on the trial, as it is upon this appeal, that there was a fraudulent statement of the amount of loss, that it did not exceed $70.53, and that the verdict of the jury was erroneous in awarding $400, as was the ruling in refusing to dismiss the complaint. The evidence, though slight and unsatisfactory upon the question of value, was, we think, sufficient for presentation to the jury. Although not a dealer in the articles injured, it nevertheless appeared that the plaintiff for a number of years had been engaged in housekeeping, and had from time to time purchased similar articles, and was familiar with the prices at which they sold. This property consisted of wearing apparel and household goods, and an expression of her opinion as to their value, coupled with the basis upon which such opinion was predicated, showing that she took the cost of such property, and deducted for depreciation 25 per cent., was some, and we think competent, evidence upon the question of value. On the part of the defendant the experts testified that the property partially damaged was not worth more than $140, and that the damage thereto was but $70; and these experts expressed the belief that this was the extent of the injury to plaintiff, for the reason that they did not think, from the character of the fire and the appearance of the property in the house where the fire occurred, that any property was totally destroyed. The value of property destroyed, the plaintiff had placed at over $200; and the questions were before the jury whether any property had in point of fact been destroyed, and, if so, how much, which, together with the partial damage sustained, would be the amount the plaintiff was entitled to recover. Whatever our personal views as to the credibility to be attached to the different versions, we think that where, as here, there was not that clear preponderance in favor of the defendant which would have justified a direction in its favor, the verdict of the jury thereon is conclusive, as it is upon the cognate question of overvaluation.

In addition to the question of the extent of the loss, the defendant, at the close of plaintiff's testimony, and again at the close of the defendant's testimony, moved to dismiss upon the following grounds: (1) That it is a condition precedent of the plaintiff's right to recover under the policy that her loss should be ascertained by appraisal, and, in case the appraisers disagree, by the decision of an umpire; (2) that the policy provides that proofs of loss should be furnished within 60 days of the fire, and the plaintiff has shown that they were not served until the expiration of 90 days. Upon the law there can be no doubt that the furnishing of proofs of loss, and, in the event of a disagreement, the undertaking, in good faith, to have an appraisal of the property, are conditions precedent to a right to recover, and a breach thereof, unless waived, constitutes a defense. Quinlan v. Insurance Co., 133 N. Y. 357, 31 N. E. 31. The difficulty to be found in the questions presented upon this appeal is not in the law, which we regard as settled, but in its application to the facts here appearing. In determining, therefore, the strength of these objections, the testi

mony relating thereto must be referred to. Immediately after the fire the defendant was duly notified, and sent a person to examine the premises, and, although it is not apparent just how it arose, the parties disagreed as to the extent of the loss. The policy required that, in the event of such a disagreement, the loss should be determined by appraisal, each party selecting one appraiser, and, in case such appraisers disagreed, by the decision of an umpire. The agreement of arbitration, signed by both parties, bears date the 2d day of April. These appraisers could not agree, and undertook to select an umpire, the defendant's appraiser selecting four names, which were forwarded to plaintiff's appraiser, and upon which the latter did not act until he had received a letter from defendant's appraiser calling attention to the names submitted, and requesting an answer, which was sent on the 13th of April by the plaintiff's appraiser, who, without objecting in his letter to the names submitted by defendant, proposed three other names. To this the defendant's appraiser responded, stating that he had made an examination of the standing of the parties submitted to act as umpire, and that he could not accept any of them, because he had ascertained that they were not furniture dealers, or in any way competent to act in a loss of the kind, and that he would like to hear from the plaintiff's appraiser as to whether he accepted or declined the parties offered by him. In addition, the plaintiff's appraiser testified that he had suggested the names of furniture men, naming one firm, and that he was unable to agree with the other side upon an umpire. The motion to dismiss upon this branch was necessarily placed upon the ground that upon this showing by plaintiff the court was bound, as a matter of law, to hold that the plaintiff had not complied with this condition of the policy in obtaining an appraisal.

In Uhrig v. Insurance Co., 101 N. Y. 365, 4 N. E. 745, it was said:

"Under the arbitration clause it was the duty of each party to act in good faith to accomplish the appraisement in the way provided in the policy; and if either party acted in bad faith, so as to defeat the real object of the clause, it absolved the other party from compliance therewith; and if either party refused to go on with the arbitration, or to complete it, or to procure the appointment of an umpire, so that there could be an agreement upon an appraisal, the other party was absolved. The claimant under such a policy cannot be tied up forever, without his fault and against his will, by an ineffectual arbitration."

And, as further said in the opinion in that case:

"Upon all the evidence, it was a question of fact for the jury to determine whether there was any breach of this clause in the policy."

So, here, we think it was, upon the evidence, a question of fact proper to be submitted to the jury, because plaintiff's want of good faith was not so clear as to have justified the court in ruling, as a matter of law, that the plaintiff had violated this condition. Had the defendant requested to go to the jury upon this question, it would undoubtedly have been entitled to do so, as, upon all the evidence, a question of fact was fairly presented whether or not the