Becs. 66, 425. If she commits a tort in his presence and by his coercion, he is alone liable: See Stewart on Husband and Wife, secs. 66, 423; Schouler's Domestic Relations, sec. 75; note to Commonwealth v. Neal, 6 Am. Dec. 105; note to Brazil v. Moran, 83 Id. 776; compare Appeal of Franklin's id.n'r, jost, p. 583; and prima facie, he is alone liable for a tort committed in his pres ence: Sec Stewart on Husband and Wife, secs. 66, 423; Schouler's Domestic Relations, sec. 75; note to Commonwealth v. Neal, 6 Am. Dec. 106; Brazil v. Moran, 83 Id. 772, and note 776; Appeal of Franklin's Adm'r, post, p. 583. If she commits a tort in his presence, and by his direction or with his assistance, but of her own will, both are liable as joint tort-feasors: See Stewart on Husband and Wife, secs. 66, 423; Schouler's Domestic Relations, sec. 75; note to Commonwealth v. Neal, 6 Am. Dec. 107; Handy v. Foley, 23 Am. Rep. 270, 271; Nolan v. Traber, 33 Id. 277, 279; and see Simmons v. Brown, 77 Am. Dec. 66; compare Brazil v. Moran, 83 Id. 772, 773; and they are likewise both liable for a tort committed out of his presence, but by his direction: Stewart on Husband and Wife, sec. 66; note to Commonwealth v. Moran, 6 Am. Dec. 107; note to Brazil v. Moran, 83 Id. 776; Handy v. Foley, 23 Am. Rep. 270. As to her liability, and that of her husband, under modern statutes, see note to Brazil v. Moran, 83 Am. Dec. 777; Martin v. Robson, 16 Am. Rep. 578; Norris v. Corkill, 49 Id. 489; Merrill v. City of St. Louis, 53 Id. 576.

RIFE v. LEBANON MUTUAL INSURANCE COMPANY.

[115 PENNSYLVANIA STATE, 530.]

INSURED IS BOUND ONLY TO GIVE NOTICE TO COMPANY OF ANY CHANGE of which he has knowledge, and by which he knows the rate of insurance will be increased, where the conditions of the policy require him to give notice to the company of any change in the insured or neighboring premises, or in the use or occupation of the same, whereby the risk is increased, so as to increase the rate of insurance.

COVENANT by Jacob Rife against the Lebanon Mutual Insurance Company, of Johnstown, Pennsylvania, upon a policy of fire insurance. The facts are stated in the opinion.

H. M. Graydon and B. F. Etter, for the plaintiff in error.

Mumma and Shoop, for the defendant in error.

By Court, CLARK, J. This action of covenant is upon a perpetual policy of fire insurance, issued by the defendant the 3d of April, 1871, to the plaintiff, in the sum of two thousand four hundred dollars; one thousand dollars thereof upon his dwelling-house, one thousand dollars upon the barn, and four hun dred dollars on the corn-house. The barn and the corn-house were totally destroyed by fire the 12th of March, 1883. The premiums and assessments had all been promptly paid, and

due notice and proofs of loss were given as required by the policy.

Among the printed conditions of the insurance set forth in the policy was the following:

9. "If, during the insurance, any alterations be made on the premises, buildings be erected, or change made in the use or occupation of the same or neighboring premises, or otherwise, whereby the risk or hazard is increased, so as to increase the rate of insurance, it shall be the duty of the insured to give notice thereof to the secretary, pay the additional premium, and obtain the consent of the company thereto in writing, otherwise the insured shall not be entitled to recover for any loss or damage by fire originating in consequence of such change; provided, that in case of any alteration and consequent increase of risk the company may, at their option, terminate the insurance, after notice given to the insured, or his representative, of their intention to do so."

In the year 1881, Michael Schall, who was the owner and operator of a furnace property on the adjoining land, by the order of the court of common pleas of Dauphin County, under act of the 5th of May, 1832, constructed a lateral railroad to connect his furnace with the Pennsylvania railroad; and locomotive engines and cars were placed thereon and used, in transporting coal, ore, and iron, between the points named, a distance of about five hundred yards. This lateral railroad ran within about twelve feet of the corner of the cornhouse, and the jury has found that the fire, which originated in the corn-house, was caused by sparks from the locomotive engines.

The question in the cause arises upon the proper construction of the ninth condition of the policy above quoted. The court submitted to the jury the following questions of fact: 1. Whether by the construction of the lateral road the rate or hazard was increased; and if so, 2. Was it increased so as to increase the rate of insurance? and 3. Did the fire originate from, or in consequence of, the change in the occupancy of the neighboring premises? All of these inquiries were settled in the affirmative, and the verdict under the instructions of the court was necessarily for the defendant.

It must be conceded, we think, that the plaintiff was bound only to give notice to the company of any change of which he had knowledge, and by which he knew the rate of insurance would be increased. He was certainly not obliged to give

notice of a change in the use or occupancy of his own or the neighboring premises, which in the fair exercise of his own knowledge and judgment he believed would not increase the hazard or the rate of insurance; this would be absurd. There may be cases, of course, in which the increase of risk is so palpable and plain that the knowledge of the insured must necessarily be inferred; this inference may be drawn from evidence, direct or circumstantial, as in other cases.

But the proper question for the consideration of the jurors was, not as the learned judge of the court below seemed to suppose, whether or not, according to their judgment under the evidence, the risk was so increased as to increase the rate, but whether, from all the facts in the case, the plaintiff knew that it was so increased. If he did, he was bound, by the express terms of his contract, to give notice of the fact to the company; if he did not, he was not. The exact question in this case was considered and decided in Lebanon Mut. Ins. Co. v. Losch, 42 Leg. Int. 416, 109 Pa. St. 100, where our brother Paxson, in his construction of a policy containing the same clause, says: "Had the condition of insurance required the insured to give notice to the company of any change in the surroundings, it would have been his duty to give notice of the erection of the carriage factory. Such, however, was not the condition. The notice was only required in case the change was such as to increase the risk or hazard, 'so as to increase the rate of insurance.' Under this clause, it is manifest that the insured must be shown to have knowledge that the building would not only increase the risk, but that it would also enhance the rate of insurance. The conditions of the policy must be construed most strongly against the company. We are not to assume, when the plaintiff below seeks to recover on his policies for what at least appears to be an honest loss, that he knew the factory building would increase the risk to such an extent as to increase the rate of insurance. There was nothing upon the face of his policy or in the conditions attached, had he read carefully every word of both, which could have given him this information. It was a fact, the solution of which must be found outside this policy. There was not a word of evidence to show that the insured knew that the carriage factory would increase the risk to the extent specified in the policy, nor indeed to any extent."

The judgment is reversed, and a venire facias de novo awarded.

CHANGE IN INSURED PROPERTY, WHEN AVOIDS POLICY WITHIN MEANING OF CONDITION: See Padelford v. Providence M. F. Ins. Co., 67 Am. Dec. 496, and note; Calvert v. Hamilton M. Ins. Co., 79 Id. 744; Gilliat v. Pawtucket M. F. Ins. Co., 91 Id. 229; Commonwealth v. Hide & Leather Ins. Co., 17 Am. Rep. 72; Breuner v. Liverpool etc. Ins. Co., 21 Id. 703.

APPEAL OF FRANKLIN'S ADMINISTRATOR.

[115 PENNSYLVANIA STATE, 534.]

MARRIED WOMAN, OR HER ESTATE, IS LIABLE FOR WRONGFUL CONVERSION OF GOVERNMENT BONDS, constituting a trust fund, to the interest of which she was entitled during her life, where the bonds were delivered to her by the trustees, who took a receipt from her by which the interest was to be retained by her, and the bonds returned, and where, afterwards, she converted them into money, and gave another receipt, in which her husband joined, acknowledging their conversion, and promising that the proceeds should be returned at her death.

WIFE IS PERSONALLY LIABLE FOR TORT COMMITTED BY HER, unless her husband was both present and directed the doing of it at the time. His presence furnishes evidence, and raises a presumption of his direction, but it is not conclusive, and the truth may be established by competent evidence.

APPEAL by George M. Franklin, administrator de bonis non cum testamentum annexo of the estate of Mrs. Anne Franklin, deceased, from a decree of the orphans' court of Dauphin County, sustaining exceptions to the report of the auditor, distributing the estate. Mrs. Franklin died in 1853. A codicil to her will provided as follows: "I direct the executors of my said will to retain three thousand dollars of the proceeds of the sale of my aforesaid house and lot of ground, in trust; that they pay the annual interest and income thereof to my two daughters, Anne and Elizabeth, during life, and to the survivor of them during the life of the survivor; and also in trust, that the said executors shall, at the request of my said daughters, or the survivor of them, invest said sum, or any part thereof, in the purchase of real estate for the use of my said daughters, and the survivor of them, during life; and at the decease of the survivor of them, my said daughters, then in trust that said principal sum, or any part thereof not invested as aforesaid, and the proceeds of the sale of any real estate purchased and then held in trust as aforesaid, and which real estate I order and direct the said executors of my said will, or the survivor of them, to sell and convey to the

purchaser in fee, shall be divided and distributed among my surviving children and the issue of any then dead, in such manner and proportions as is directed in my said will in respect to the residuum of my estate." The will and codicil were duly probated, and letters testamentary were issued to the executors therein named. The executors invested three thousand dollars in the purchase of real estate under the will. Anne E. Franklin afterwards married Amos S. Henderson, and her sister, Elizabeth R. Franklin, made her home with her, thus rendering the real estate unnecessary as a home for the sisters. The executors accordingly sold the property, under order of court, and invested the three thousand dollars, in three onethousand-dollar United States seven-thirty treasury notes. The executors subsequently delivered these notes to Mrs. Henderson and Miss Franklin, taking the following receipt, signed by them: "Received, Lancaster, May 1, 1865, from the executors of the will of Anne Franklin, deceased, three one-thousand-dollar seven-thirty treasury notes, which they invested under the provisions of said will, and the interest of which is to be retained by us, the bonds to be returned to the said executors by the survivor of us, as directed by said will." Miss Franklin died shortly afterwards, and Mrs. Henderson retained the notes until August 5, 1881, when she obtained payment thereof from the government. On the same day, Mrs. Henderson and her husband executed a paper, which, after reciting the above receipt, provided: "And whereas Elizabeth R. Franklin is now deceased, and the investment in said three thousand dollars in seven-thirty treasury notes has been changed, now the said Anne E. Henderson, and her husband, Amos S. Henderson, acknowledge that we have in our hands the sum of three thousand dollars, the interest on which is to be retained by the said Anne during her life for her own use, and the principal on her decease is to be returned to the said executors, to be distributed according to the provisions of the said will of Anne Franklin, deceased." Henderson died in January, 1885, and his wife died in June following, leaving a will by which Clara Franklin was appointed residuary legatee. The account of the executor of Mrs. Henderson's will showed a balance of $9,181.11 for distribution, which appeared to have been almost entirely made up of the proceeds of a policy of insurance on the life of her husband. The auditor awarded three thousand dollars to the administrator of Anne Franklin. To this exceptions were sustained, and