Of the operation of the recent rule upon this question there might be some doubt. But if the reason of it were logically carried out, it would certainly seem, that the creditor may retain, not only the whole payment which he receives from the insurers, but the whole of his claim against the representatives of the debtor.

Where the death of the life-insured was caused by a third party, who was a stranger to the contract, and the insurers paid the loss, and brought an action against this third party, it was held, that the action could not be sustained, on account of the want of any privity between the parties. (s)

If a wife is considered as a feme sole by the law of the State* wherein the policy was made, and she causes her- *481 self to be insured on the life of her husband, the policy is entirely beyond his reach, not only so far that he cannot transfer or cancel it, but it cannot be impeached by proof, derived from his own declarations, that his statements in regard to his health, made at the time of the insurance, were misrepresentations. (t) And if a wife insures the life of her husband, for her own benefit, and dies before the husband, the policy vests at her death in her administrator for the benefit of her children. (tt) A policy of life insurance for the benefit of the widow and child of the insured, cannot be affected by his will. (tu) 2

also Henson v. Blackwell, 4 Hare, 434, Freme v Brade, 2 De G. & J. 582, Knox v Turner, L. R 9 Eq. 155, 167; Central Bank v. Hume, 128 U. S. 195, 209.

(s) Conn. Ins. Co. v. N. Y. & New Haven R. Co. 25 Conn. 265; Insurance Co. v. Brame, 95 U. S. 754.

(t) Fraternal Ins. Co v. Applegate, 7 Ohio State, 292. In Rison v. Wilkerson, 3 Sneed, 565, where a statute provided that any husband might effect insurance on his own life, and the same shall in all cases enure to the benefit of his widow and heirs, without in any manner being

subject to the debts of the husband, it was held, that this did not prevent the husband, who had insured his own life, without saying for whose benefit, from assign ing the policy.

(tt) Swan v. Snow, 11 Allen, 224.

(tu) Gould v. Emerson, 99 Mass 154. [This case was decided under the Massachusetts statute. For a collection of authorities on statutory protection of beneficiaries, see Cooke on Life Insurance, pp. 137-146] See also, as to assignment, Knickerbocker, &c. Ins. Co. v. Weitz, 99 Mass. 157.

1 That, in such a case, the interest descends to her heirs, see Hutson v. Merrifield, 51 Ind. 24. A policy payable to wife and children becomes, if there are no children, the wife's property, and she may exchange it for a paid-up policy even after divorce. Phoenix Ins. Co. v. Dunham, 46 Conn. 79. If children are not mentioned, she has, in Massachusetts, an absolute life interest assignable by her for husband's debts. New. comb v. Mutual Ins. Co. 9 Ins. Law J. 124. Where a wife insured her husband's life for the benefit of herself and children, and she and a child died before him, the latter leaving a child, the grandchild took the interest of its parent. Continental Ins. Co. v. Palmer, 42 Conn 60 - K.

2 In many States by statute a husband's insurance on his life for the benefit of his wife is protected from the claims of his creditors, either wholly or partially.

Even where no such statutes exist, it has been held that the wife may retain the whole of the proceeds of policies on her husband's life made payable to her, though the insurance was effected and the premiums paid by her husband when insolvent. Central Bank v. Hume, 128 U. S. 195. And so dicta in Elliot's Appeal, 50 Pa. 75,

SECTION III.

OF ASSIGNMENT AND TRANSFER.

Life policies are very frequently assigned; and many are made for the purpose of assignment, to enable the insured thereby to give security to his creditor, (u) and the assignee recovers the whole amount insured, and not merely the consideration for the assignment. (v) Policies usually contain rules and provisions respecting assignment, and they are binding on the parties to the contract. If, therefore, these make an assignment of the policy a discharge of the insurers, an assignment would have this effect. (w) Notice and assent are usually required to give effect to an assignment; but any such requirement would be construed the more

strictly against the insurers, because, as has been said by a * 482 court, all the reasons which require * the assent of under

(u) Ashley v. Ashley, Sim. Ch. 149; Godsall v. Webb, 2 Keen, 99; Barber v. Butcher, 8 Q. B. 863; N. Y. Ins. Co. v Flack, 3 Md. 341.

(v) St. John v. American Ins. Co. 2 Duer, 419, 3 Kern 31

(w) In New York Ins. Co. v. Flack, 3 Md. 341, by the terms of a life insurance policy, the company agreed with "the assured, his executors, administrators," to pay the amount to his "legal representa

tives," after due notice and proof of death, and at the foot of the policy were these words "N. B. If assigned, notice to be given to the company," it was held, that the provision to pay to the "legal representative," was designed to apply to a case where the party died without having previously assigned, and was not to be construed as in any sense limiting the power of assignment.

and McCutcheon's Appeal, 99 Pa. 133. Other courts have held the creditors entitled to a return of all premiums paid after the husband became insolvent. Etna Bank v. U. S. Life Ins. Co. 24 Fed. Rep. 770; Pence v. Makepeace, 65 Ind. 345, Holmes v. Gilman, 19 N. Y. Supp. 151. See also Stigler's Ex. v. Stigler, 77 Va. 163 And there are also decisions that the creditors are entitled to the whole proceeds of the policy. Fearn v. Ward, 80 Ala. 555; Pullis v. Robison, 73 Mo. 201; Barry v. Equitable Life Ass. Soc. 59 N Y. 587, 593. The statutes and cases are collected and discussed in 25 Am. L. Rev. 185.

If a policy, originally payable to the husband, is assigned to his wife by him when insolvent, it is generally admitted that his creditors may set the transfer aside and secure the full amount of the policy. Stokoe v. Cowan, 29 Beav. 637; Freeman v. Pope, L. R. 9 Eq. 206, L. R. 5 Ch. 538; Stokes v. Coffey, 8 Bush, 533; Thompson v. Cundiff, 11 Bush, 567; Catchings Manlove, 39 Miss. 655; Elliott's Appeal, 50 Pa. 75. 1 An assignment of a life policy, valid in its inception, to one having no insurable interest, has been held invalid in Warnock v Davis, 104 U. S. 775; Missouri, &c. Ins. Co. v. Adams, 81 Ky. 368; Michigan, &c. Assoc. v Rolfe, 76 Mich. 146; Stevens v. Warren, 101 Mass 564; Franklin Ins. Co. v. Sefton, 53 Ind. 380, Same v Hazzard, 41 Ind. 116; Guardian Ins. Co. v. Hogan, 80 Ill. 35; Swick v. Home Ins. Co 2 Dillon, 166, Lewis Phoenix Ins. Co. 39 Conn. 100; Singleton v St Louis Ins. Co 66 Mo. 63, and valid in Fitz Patrick v. Hartford Ins. Co. 56 Conn. 116; Martin v Stubbings, 126 Ill. 387, 403, Rittler v. Smith, 70 Md. 261; Mutual Life Ins Co. v. Allen, 138 Mass. 24; Murphy v. Reed, 64 Miss. 614; Olmsted v. Keyes, 85 N. Y. 593, 599, 601; Eckel v. Renner, 41 Ohio St. 232; Clark v. Allen, 11 R. I. 439.

writers to make assignments of fire policies valid, do not apply to life policies. (x)

In life policies, there is sometimes a clause to the effect, that an assignment, duly notified and assented to, shall protect the assignee against acts of the insured which would have discharged the insurers had the policy remained in the hands of the insured. (y) It has been held, that without such express provision, whatever would be a forfeiture of the policy if it remained in the hands of the insured, would operate equally after the assignment. (z).

A delivery and deposit of the policy for the purpose of an assignment, would operate as such without any writing. (a) But indorsement on the policy, with notice to the insurers, has not the effect of an assignment, so long as the policy remains in the possession of the insured; because delivery of the policy is requisite. (b) This, however, is not necessary, where the assignment is by a separate deed, which deed is delivered. (c) And a mere promise to assign, founded on a valuable consideration, might be good against the insured, and perhaps against his assignee in bankruptcy. (d) Any such promise would be strengthened by notice to the insurers, and assent by them.

From some cases it might be inferred, that life insurers have no delectus personarum, or rather, that this right has less force

341.

(x) New York Ins. Co. v. Flack, 3 Md.

(y) Cook v. Black, 1 Hare, 390; Moore Woolsey, 4 Ellis & B. 243, 28 Eng. L. & Eq 255.

(2) Amicable Society v. Bolland, 4 Bligh (s. s.), 194.

(a) In re Styan, 1 Phillips, Ch. 105; Cook v. Black, 1 Hare, 390; Moore v. Woolsey, 4 Ellis & B. 243, 28 Eng. L. & Eq. 248; Wells v. Archer, 10 S. & R. 412; Harrison v. McConkey, 1 Md. Ch. 34; N Y. Ins. Co. v. Flack, 3 Md. 341. The voluntary payment of premiums on a policy of life insurance, gives to the payer no interest in the policy. Burridge v. Row, 1 Younge & C. Ch. 183.

(b) Palmer v. Merrill, 6 Cush. 282.

(c) Fortesque v. Barnett, 3 Mylne & K. 36.

(d) Tibbitts v. George, 5 A. & E. 107. See Williams v. Thorp, 2 Sim. 257; Gibson v. Overbury, 7 M. & W. 557. It is held in Louisiana, that one who has effected insurance on his life, may assign the policy, or a part of it, to a bond fide creditor; but such assignment will be without effect as to third persons, creditors of the insured, where there was no proof of notice to the assurers before the death of the assured, nor of the acceptance of the assignment by the transferee before that date, and the policy remained in the possession of the assignor. Succession of Risley, 11 Rob. La. 298.

1 Delivery is requisite to place the assignee in the assignor's position so as to recover the full debt due See Hartford Ins Co. v. Davenport, 37 Mich. 609. The sending to the insurer's agent, with a request to keep for a person named, is a good delivery. Marcus v. St. Louis Ins. Co. 68 Ñ. Y. 625. If a husband in writing requests his wife to take a policy, and promises it to her if she keeps it up, it is a good equitable assignment. Swift v. Railway, &c. Ass. 96 Ill. 309. But a mere declaration in a letter that life insurance was made for the person to whom it is addressed, without any delivery of the policy, is no assignment. In re Webb, 49 Cal. 541. See Alletson v. Chichester, L. R. 10 C. P. 319. That as between creditors and a beneficiary in possession of the policy the latter will hold the funds, see Worthington v. Curtis, 1 Ch. D. 419; as well as his estate, see Smedly v. Felt, 43 la. 607. — K.

with them than with marine or fire insurers. If this be so, the principal reason for holding insurers discharged by an as*483 signment* without their leave, in the absence of all provisions about it, would not apply to life policies. (e)

SECTION IV.

OF THE TIME WHEN A POLICY ATTACHES OR TERMINATES.

It would seem that a policy may take effect, if the bargain be completely made, although before any delivery of it the lifeinsured has died, and delivery was withheld in consequence. It need not be added, that the evidence must be very clear, and the circumstances very strong, to give effect to such a policy. (f)

English life policies are sometimes made for a short time,perhaps a single year, with a right of renewal. In this country, such a provision is certainly not common. In an English case, where the original insurance for a year expired on the 24th of February, and the insured had the right of renewal for another year, and on the following 4th of May he died, and in ignorance of this fact application for a renewal was made by his rep* 484 resentatives, * and assented to by the insurers on the 31st

of May, the insurers were held liable. (g) In the renewed insurance no time was stated for the beginning or the termination of the policy.

All life policies are of course terminated by the death of the life-insured. But it is sometimes difficult to determine the time of his death, or whether he died while it covered his life or after it had expired. The burden of proof is necessarily upon the representatives of the insured, to show that the death occurred within the policy. (h) Undoubtedly, after a certain period of absence and silence, there arises, by the common law of England and of this country, a presumption of death; or, to speak more accurately, the presumption of life ceases. This period is very generally said to be seven years; (i) and this is adopted in the legislation of some States. (j) It must remain true, however, that when a party rests his case upon the fact of death, he must satisfy the jury of that fact by relevant and admissible evidence, strengthened by whatever presumptions the law would make and we should have no doubt that proof as to the health and strength or habits of the person, or his probable place, or exposure to peril, would come in as a part of this evidence.

The presumption of life after seven years of absence and silence, ceases, but it is not replaced by a presumption *485 that death occurred at any one time more than another.

It has been said that the presumption of life continues to the end of seven years, and then only gives way to a presumption of death;

(g) Philadelphia Life Ins. Co. v. American Life Ins. Co. 23 Pa. 65. The second policy contained a statement, that, if the declaration made by the secretary of the company, obtaining the reinsurance, was false, the policy should be void. This declaration stated, that the secretary believed the age of the life-insure did not exceed thirty years, and that "he is now in good health This declaration was dated May 31. See also Foster v. Mentor Life Ass. Co. 3 Ellis & B. 48, 24 Eng. L. & Eq. 103.

(h) See Lockyer v. Offley, 1 T. R. 260, Willes, J.

(i) In Loring v. Steineman, 1 Met. 211, Shaw, C. J., said: "The only remaining question is a question of fact upon the evidence. It is a well-settled rule of law, that upon a person's leaving his usual home and place of residence for temporary purposes of business or pleasure, and not being heard of, or known to be living, for the term of seven years, the presumption of life then ceases, and that of his death arises. 2 Stark. Ev. 457; Doe v. Jesson,

6 East, 85. See Hancock v. American Ins. Co. 62 Mo. 26; Tisdale v. Conn. Ins. Co 26 Ia. 170. Davie v. Briggs, 97 U. S. 628. But this presumption may be rebutted by counter-evidence, Hopewell ". De Pinna, 2 Camp. 113; or by a conflicting presumption, The King v. Twyning, 2 B. & Ald. 386. This presumption is greatly strengthened, when the departure of an individual was from his native place, the seat of his ancestors, and the home of his brothers and sisters and family connections; and still further, where it was to enter upon the perilous employment of a seafaring life; and when he has not been heard of, by those who would be most likely to know of him, for upwards of thirty years." See also McCartee v. Camel, 1 Barb. Ch. 455; Smith v. Knowl ton, 11 N. H. 196; Cofer v. Flanagan, 1 Kelly, 538. This presumption does not arise where the party, when last heard from, had a fixed and known residence in a foreign country. McCartee v. Camel, supra; In re Creed, 1 Drury, Ch. 235.

(j) See 2 N. Y. Rev. Stats. c. 34, § 6.