sue, leaving the underwriters on that policy to recover a rateable sum, by way of contribution, from the underwriters on the *other policy." Reference is there made to Newby v. Reed (1), which was a case of open policies, and the question is whether the same rule applies to valued policies in each of which a different value is stated. If the rule contended for by the defendant is to prevail, this strange consequence will follow, that supposing the plaintiff sued on all the policies except the London one, and recovered their full amount, he would receive upon those policies 3,6251.; and he might then sue upon the London policy and recover 1,375l., being the difference between 3,6251. and 5,000l., the agreed value in the London policy. So that the amount which the plaintiff would be entitled to recover would depend upon which policy he first put in suit. The more rational rule is to take the average value of the four policies, by adding together the several agreed values in each and dividing it by four, which in this case would give 3,600l. as the value of the ship.

POLLOCK, C. B.:

We are all of opinion that the rule ought to be discharged. I think my brother WILLES was quite right in his direction, and that it is fortified by authority and reason. The action is brought on a policy of insurance for 2,400l. effected on a ship valued at 3,2001. It appears that the ship was insured by other policies and that the assured has received on them 3,1267. 13s. 6d. ; and the question is whether he is entitled to recover more than the difference between that and 3,2007., viz. 737. 68. 6d. The plaintiff seeks to recover more, on the ground that the sums which he has received on the other policies ought not to be taken into consideration. The learned Judge who tried the cause did not adopt that view, and I think properly. He considered that, as between the plaintiff and defendant, the value of the vessel must be taken as 3,2001., *and it appears to me that is the correct view. It may happen that when a vessel is insured for a long time or a long voyage, her value may not be the same at the beginning as at the end of the voyage. More freight being

carried might increase her value, or she might have met with an accident and have been so thoroughly repaired that her value might be considerably increased. But in general the value must be taken to be that which is stated in the policy. If that is binding upon the underwriter, so that he cannot give evidence of the real value of the vessel, and so prevent the assured from recovering the amount stated in the policy, the assured is equally

(1) 1 W. Bl. 416.

BRUCE

v.

JONES.

[*776]

bound by the agreed value, and if he has received that amount he has no further claim upon any other underwriter. If he has received less he can only recover on other policies the differUpon these grounds I think that the rule ought to be

ence.

discharged.

MARTIN, B.:

I am of the same opinion. I admit that a judgment given in a matter of this kind is not altogether satisfactory, which arises from the circumstance that courts of law view policies of insurance in one light, whilst the assured views them in a totally different light. Courts of law are obliged to discuss these questions on the principle that the sum to be recovered is an indemnity for the value of the ship, but persons who insure entertain an entirely different notion, so that we have to decide on principles at variance with those of the parties when they enter into these contracts. It is therefore scarcely possible that the decision of a court of law can be satisfactory to them. If the practice between the ship-owner and the underwriter were founded on the principle alluded to by Lord MANSFIELD in his judgment in Lewis v. Rucker (1), viz., "that *the value is fixed in such a manner that the insured means only to have an indemnity," the matter would be plain. But that is not the mode in which ship-owners and underwriters do business. I remember a case respecting a ship the owner of which, who was a witness, proved that he had effected a policy and valued the ship upon a principle which had no reference whatever to its real value. He had opened a debtor and creditor account between himself and the ship, and insured the ship for the balance owing to him. A lawyer would say that a ship-owner had no right to insure on that principle, and that he ought to value the ship on the principle stated by Lord MANSFIELD, to which I have referred.

It seems to me in this case that the view taken by my brother WILLES was in accordance with authority. He considered that, by the agreement between the assured and the underwriters, the value of the ship was to be taken at 3,2007., and that the plaintiff was entitled to recover that sum in respect of the loss of the ship. He then inquired what sum of money the assured had received, leaving out of consideration how he got it, and, finding that he had received 3,1267. 13s. 6d., he treated it as if there had been a salvage of the ship, and the assured had received that amount after the ship was sold. He then placed that amount to the credit of the underwriter as against the 3,2001.; and he entirely dismissed from his consideration what was stated

(1) 2 Burr. 1167, 1171.

as the value of the ship in other policies between the plaintiff and individuals to whom the defendant was a stranger. According to the best judgment I can form on the matter, that is the more correct mode of estimating the damage. It is in accordance with the view taken by courts of law, that insurance is a contract of indemnity against the loss actually sustained. I am not insensible to the *observation that the amount which the assured is entitled to recover may depend upon which policy he first puts in suit; but, in point of fact, each policy is a separate contract, and the assured must deal with each underwriter according to his particular contract.

CHANNELL, B.:

I am of the same opinion. The damages were assessed under the direction of the learned Judge; and an application is made for a new trial on the ground that he misdirected the jury in stating his view as to the measure of damage. The broad question is whether the plaintiff is entitled as against the defendant to damages to a greater amount than he has recovered. If so, there would be ground for granting a new trial; but, being of opinion that the damages were rightly assessed, it is unnecessary to consider whether any other mode of assessment should be resorted to. The plaintiff has recovered from the defendant, not his proportion of the 3,2001., the agreed value in the policy, but his proportion of the difference between that sum and the amount which the plaintiff received on the three other policies. I think that is all the plaintiff is entitled to; and that, when the defendant is sued for his proportion upon a policy in which the ship is valued at 3,2001., that must be taken as the value of the ship for the purpose of his liability; and the question is how far that is lessened by the sums received on other policies. I agree that some inconvenience may result from the rule now laid down; and it is not satisfactory to find that, if the order of suing on the policies had been inverted, a different amount would have been recovered. But I think that is in a great degree attributable to the character of these insurances, as explained by my brother MARTIN; and that, at all events, as the plaintiff has effected an insurance *in which his ship is valued at 3,2007., we must abide by the rule of law that, for the purpose of estimating the liability of the defendant, that amount must be taken. as fixed by the policy.

Rule discharged.

1863.

Jan. 30.

1863.

Jan. 27.

[ 782 ]

[ *783 ]

BANCROFT r. GREENWOOD.

(1 H. & C. 778-782; S. C. 32 L. J. Ex. 154; 9 Jur. N. S. 160; 11 W. R. 349; 7 L. T. N. S. 719.)

[Obsolete practice.]

ATTORNEY-GENERAL r. BRACKENBURY.

(1 H. & C. 782-797; S. C. 32 L. J. Ex. 108; 9 Jur. N. S. 257; 11 W. R. 380; 8 L. T. N. S. 822.)

In the absence of a contrary intention apparent on the face of a will, a general residuary bequest operates as an exercise of a general power of appointment, of which the testator is the donee, although the residuary legatees are the persons who would be entitled, in default of appointment, under the instrument creating the power.

If in such case the testator has in the first instance charged his residuary estate with the payment of debts and legacies, it is not competent for the residuary legatees to disclaim the fund under the appointment, and elect to take under the gift to them in the original instrument.

Quare, whether the disclaimer by an appointee operates to vest the fund appointed in the persons entitled in default of appointment ?

A. by will bequeathed his residuary personal estate, on the death of his daughter B., unmarried, to trustees, for such purposes as she should by will appoint, and in default of appointment in trust for his brother C. and his sister D. B. died unmarried, having bequeathed her residuary estate (subject to the payment of debts, funeral and testamentary expenses, legacies and annuities) to her uncle C. and her aunt D.; Held, that B.'s will operated as an exercise of her power of appointment, and that C. and D. were liable to pay duty on the fund appointed at the rate of 5 per cent. and not 3 per cent., the rate at which they would have been liable if they could have taken directly under A.'s will.

INFORMATION in equity by the Attorney-General, as follows:

1. The object of this information is to obtain from the defendants, who are the acting executors of the will of Harriette. Mary Brackenbury, deceased, payment of the legacy duty in respect of certain property, which under the will of her father, James Blackledge Brackenbury, deceased, and in the event (which happened) of her death without having been married, she had power to dispose of as she might think fit, and which she did in fact dispose of by her will.

2. The said James Blackledge Brackenbury by his will, dated the 5th day of June, 1843, appointed his brother the defendant Ralph Brackenbury and his sister Hannah Brackenbury, *and his brother-in-law John Hobson, to be executors and trustees for the purposes thereinafter mentioned. And after making certain pecuniary and specific bequests he devised all his real estates unto his said trustees upon trust to sell the same, and he directed that the money to arise by sale thereof should form part of the residue of his personal estate, and he also bequeathed to his trustees all his personal estate not therein before disposed of, and authorized them to convert the same into money; and he directed his trustees to invest the net proceeds of the monies

arising from the sale of his real estates, and from the conversion of his personal estate, in manner in his said will mentioned, and to stand possessed thereof and of the securities for the same upon certain trusts which, so far as it is necessary for the purposes of this suit to state the same, were in effect as follows, that is to say, upon trust to pay the net income thereof to his daughter the said Harriette Mary Brackenbury during her life, but so that in case of her marriage the same should be for her separate use. And after her decease in trust, as to the capital thereof, for her children or other issue as she should by deed or will appoint, and in default of appointment for such of her children as should attain the age of twenty-one years or marry under that age, and if more than one in equal shares. And in case (which happened) his daughter should not marry, then after her decease the said trust funds and the annual income thereof were to remain and be upon and for such trusts, intents and purposes as his said daughter by her will should direct or appoint; and in default of such direction or appointment, or so far as any such, if incomplete, should not extend, in trust for his said. brother and sister, their executors, administrators and assigns, in equal shares.

3. The testator afterwards died without revoking or altering his said will, which was on the 4th of December, 1844, *duly proved in the Prerogative Court of the Archbishop of Canterbury.

4. The testator's daughter Harriette Mary Brackenbury survived him, and by her will, dated the 23rd of July, 1859, gave various pecuniary legacies and annuities. And after and subject to the payment of her debts, funeral and testamentary expenses, and the legacies and annuities therein before given, she gave all the residue of her property, both real and personal, unto and equally between her uncle the defendant, Ralph Brackenbury, and her aunt, the said Hannah Brackenbury, their heirs, executors, administrators and assigns. And she appointed the defendants Ralph Brackenbury and Edward Lewis, and also Thomas Tomlinson (who renounced probate), executors of her will.

5. The said Harriette Mary Brackenbury afterwards died without having ever been married, and without revoking or altering her said will, which was, on the 20th of June, 1861, duly proved by the defendants, Ralph Brackenbury and Edward Lewis, in the principal registry of her Majesty's Court of Probate.

6. The will of the said Harriette Mary Brackenbury operated as an exercise of the general power of appointment to which, in the event, which happened, of her death without having been married, she became entitled, under her father's will, over the whole of his residuary estate. And thereupon legacy duty under