statute (were it here applicable) would take this case out of the rule of Foster v. Gile. Certainly it would not unless it vested in the original beneficiary, Sarah Given, the absolute right to the insurance money as her separate property or estate. That a statute which, in principle, was like § 2347, did not work such a result, was held by this court in Kernan v. Howard, 23 Wis. 108. Applying the rule of Foster v. Gile to the present case, the death of the wife, Sarah Given, during the life of the insured, abrogated the direction that the insurance money be paid to her, and left it to be paid to the person entitled thereto under the rules and by-laws of the company. That person is the widow of the insured, the plaintiff in this action. It follows that the complainant states a cause of action in her favor, and hence that the demurrer thereto should have been overruled. Rights in a policy of insurance in favor of a married woman, after the death of her husband.-A variety of causes have given great impetus to the business of life insurance within a few years. With many men, it is a favorite mode of providing for those who are dependent upon them. One consequence of the increased favor with which it is regarded, is that many new questions are arising for the consideration of bench and bar. Owing, in part, to the fact that the business is conducted by a vast number of corporations and societies, each of which has features more or less unlike those of every other, and that the policies or certificates of each are peculiar to itself, these new questions are varied in their character. Hence there is difficulty, attended with danger, in attempting to state general principles which are to be taken as applicable to all jurisdictions and contracts. In considering some of the late cases which treat of rights in a policy of insurance on the husband's life in favor of his wife, where he survives her, it is considered more prudent to state them than to attempt to draw rules from them. Olmsted v. Keyes, 85 N. Y. 593, is a leading case on the subject. A policy taken by the husband on his life, was payable to a trustee for the benefit of his wife. No provision was made in it for the contingency of her death previous to his. She died intestate. The insured remarried and at his request, and apparently for value, the trustee made an assignment of the policy to the second wife. She survived her husband, as did several children by the first marriage and one by the second. The court found that the insured paid all the premiums and that his purpose was that his widow should have the avails of the policy if she survived him, and if she did not, that they should go to his children. It was ruled that the policy was the property of the first wife while she lived; that upon her death intestate the title to it vested in the husband as survivor, her trustee becoming his trustee by operation of law; that the assignment vested the title in the second wife, and made her the sole beneficiary. her own use, free from the claims of (Two judges dissented.) It is well established in New York that a person who insures his life in good faith, may, with the insurer's consent, deal with the policy as he could with any other chose in action. And the court say in the case stated that, during her life, the first wife, being the sole beneficiary, could have made a valid assignment of the policy, or could have disposed of her interest in it by will. Though her interest ceased at her death, the policy would have been valid in the hands of her assignee. Her death, therefore, did not affect its validity; neither would her divorce. Having died intestate, her interest went to her husband with all her other choses in action. At common law all the wife's choses in action, which were not reduced to possession during their joint lives passed to the husband upon her death, and this without regard to their nature. By securing the assignment of the policy to his second wife, the husband reduced this chose in action to possession. The assignment was valid as against him and against the world. It was said in Moehring v. Mitchell, 1 Barb. Ch. 264 (affirmed by the Court of Appeals, 4 How. Pr. 292), of a policy procured by the wife upon her husband's life for her benefit, that, after the death of both of them, she having died first, the benefits passed to his representatives. The court also say in Olmsted v. Keyes, that the common-law rights of the husband were not affected, because when the policy was obtained, there was a statute which made it lawful for a wife to cause her husband's life to be insured, and which provided that in case she survived him, the amount of the insurance should be payable to her, to and for his representatives or any of his creditors; and that, if she died | efore he did, it might be made payable after her death to her children. Neither were such rights affected by a statute which prohibits a husband from assigning a policy in favor of his wife during her life. In Kernan v. Howard, 23 Wis. 108, the husband paid the premiums on a policy on his life in favor of his wife or her legal representatives. She died a few hours before he did, without leaving children by this marriage; the husband left two children by a former wife. Prior to his knowledge of the death of his wife, he made a nuncupative will, directing that the avails of the policy be divided be tween his children and a stepchild, in equal parts, "provided my wife does not live." His right to so do was sustained. A certificate in the nature of a policy on the husband's life was payable to his wife or her legal representatives. She died first, and the instrument remained unchanged at his death. It was ruled (one judge dissenting) that the benefit was intended for the wife alone, and upon her death resulted to her husband. "Legal representatives," as used in the certificate, signified persons appointed either by will or by law, to administer upon the estate of a person deceased: Washington B. E. Ass'n v. Wood, 4 Mackay (D. C.), 19. If the constitution of the organization which issued a certificate or policy on the life of a member in favor of his wife, provides that he may hold, dispose of, and fully control the benefit to be derived therefrom, or change the beneficiary, no rights thereto pass to the representatives of the wife, she dying before her husband, and both dying without issue: Richmond v. Johnson, 28 Minn. 447; Tafel v. Supreme Commandery, 12 Cin. Law Bul. 35 (in the Superior Court of Cincinnati). In the case last cited, the husband died without having made any other designation. It seems that this was the fact in the other case, but it is not quite clear from the report of it. The Minnesota court say: "With the right at all times to hold, dispose of, and control, his mere designation of some person to receive the benefit would be revokable. It would not prevent his subsequently designating some other person to receive it. While, in case of his death without having revoked his appointment of his wife, she would have been entitled to receive the benefit, yet, during her life, because of the power of revocation, all that she had was a mere expectancy, dependent on his will and pleasure. That expectancy was not property, not estate. The expectancy terminated when she died, and did not pass to her administrator." The case in the Superior Court of Cincinnati is rested upon the same ground. A certificate on the husband's life in favor of his wife, was issued by a society whose object was to accumulate a fund to be paid to the legal representatives of a member at his death. The husband survived his wife, and died without making a change in the certificate, though the by-laws allowed a change to be made. His legal representatives were held to have a right superior to hers, though it was admitted the case was not free from doubt: Expressmen's Aid Society v. Lewis, 9 Mo. App. 412. The court says that while this case is not parallel to the case of a legacy, or of a donation mortis causa, there is an analogy between them. It is not to be presumed, because insured made no change in his certificate, that he desired the heirs of the beneficiary to receive the benefit if she died. Furthermore, the meaning of the provision that the fund was to be paid to the legal representatives of a member, is that, if at his death, there is no appointee named by him, alive and capable of taking, it is to go to his next of kin. A previous case in Missouri hed decided that a husband, who survived his wife and who had insured his life for her benefit, the policy being payable to her or her legal representatives, could, after her death, with the insurer's consent, make it payable to his second wife and others: Gambs v. Covenant Mut. Life Ins. Co., 50 Mo. 44. This policy was issued and the wife died prior to the enactment of the statute which authorized policies on the lives of husbands, in the name of and for the separate use of their wives. The court say: "The only ground upon which the policy could be sustained when issued, is the fact that the wife had a right to look to the husband for support. It was taken out for the purpose of securing her support after his death. The premiums were paid by him, and the whole thing was instituted and carried on for this laudable purpose. This object being forever lost, was the husband bound to continue the policy for the benefit of her representatives? Could he not surrender it, or, by failing to pay further premiums, let it lapse? or could he not, with the consent of the company, change the beneficiaries? He must be held to have had that right." In Olmstead v. Masonic Mutual Benefit Society, 37 Kan. 93, the husband was a member of said society. Its professed object was to give aid to the widows, orphans, and dependents of deceased members. The certificate issued on the husband's life was payable to his wife or her legal representatives. She predeceased him and left several children surviving. He died without other heirs than those in being when she died. Before death he executed a will, in which he undertook to bequeath the proceeds of the certificate to his children, giving to one of them about one-half thereof, and to the several others the balance in unequal shares. No change was made in the certificate, which remained in the member's possession during his lifetime. It did not appear that there was any authority in the rules of the society for changing the beneficiary. A statute which prescribes the manner in which an insured person may designate a beneficiary, where the one appointed has died, was not complied with. It was ruled that the benefit was payable according to the terms of the certificate. The prescribed mode of making a change not having been pursued, none was made. "The assured had no interest in the benefit resulting from his membership. In no event was it payable to him, nor could it become a part of his estate; and having no interest in the fund, what was there for him to bequeat?" In Ricker v. Charter Oak Life Ins. Co., 27 Minn. 193, a policy on the husband's life was payable at his death to his wife E., if she survived him; if not, to his children. The consideration for the policy was all paid during her lifetime. He and his children survived her. On his remarriage, he surrendered the policy without their consent and took a paid-up one conditioned like the original, except that it was for the benefit of his then wife. It was ruled that the children's rights could not be thus taken from them. See Allis v. Ware, 28 Id. 166. In Continental Life Ins. Co. v. Ham ilton, 41 Ohio St. 274, a policy on the husband's life was payable to his wife, her executors, administrators, or assigns, and if she died before her husband, to their children. Before the wife was entitled under the terms of the policy to surrender it and obtain a paid-up policy, she died intestate, without children, leaving her husband surviving. He paid the premiums as they became due, and the company dealt with him for a number of years as though he was the beneficiary. In a contest between him and the wife's representatives, it was ruled that they could not claim a paid-up policy, and that the insurer was estopped from denying the husband's right to sue therefor. In Anderson's Estate, 85 Pa. St. 202, the policy was on the husband's life in favor of his wife, her executors, administrators, or assigns. She predeceased him, leaving one child, and no will. The husband died intestate and insolvent, without having made any disposition of the policy. It was ruled that the proceeds went to the wife's estate. The same rule was applied to a case where the certificate was payable to the wife, her heirs or assigns, she dying intestate without having made an assignment: Mutual Aid Society v. Miller, 107 Id. 162. In Lee v. Murrell, 7 Ky. Law Rep. 598 (Kentucky Superior Court), it was ruled that a policy applied for by the husband for the benefit of his wife, while she was living, inured to the use of her children although it was not issued until after her death. It is provided by statute in Kentucky that a policy on the life of any per son, expressed to be for the benefit of any married woman, shall inure to her separate use and that of her children. The case stated was ruled under that act, as was Lee v. Page, 8 Id. 602, where the husband assigned a policy payable to his personal representatives or assignee to his wife. The benefit of it passed, on her death, to her children, and no part of it to her husband. In Simmons v. Biggs (Supreme Court of N. C., February 27, 1888), a wife in whose favor, and in favor of whose children, policies on the husband's life had been written, died intestate, he and her children surviving. In an action between their guardian and the husband's administrator, Supreme Court of Pennsylvania. PENNSYLVANIA RAILROAD CO. v. MARCHANT. The word injury" (or "injured") as used in ? 8, Art. xvi of the Constitution of Pennsylvania, means such legal wrong as would be the subject of an action for damages at common law. A "consequential" inju y is an injury to a man's property, the natural and necessary result of the construction or enlargement of its works by a corporation; of such certain character that the damages therefor can be estimated and paid or secured in advance, as provided in the Constitution. A railroad company, constructing and operating an elevated steam railroad in a city, upon property owned by it in fee simple, and fronting on one side of a street, is not liable, without negligence, under the Constitution of Pennsylvania, or otherwise, for the depreciation in the value of private property fronting upon the opposite side of the street (no part of which was taken or used in the erection or construction of the road), in consequence of the noise, smoke, cinders, dirt and jarring necessarily resulting from the lawful operation of the railroad. ERROR to the Court of Common Pleas No. 3, of Philadelphia County. Wayne Mac Veagh (George Tucker Bispham, A. H. Wintersteen, and James A. Logan with him) for plaintiff in error. M. Hampton Todd (George H. Van Zandt with him) for defendant in error. PAXSON, J. April 9, 1888.-This case is admittedly upon all fours with Pennsylvania Railroad Company v. Lippincott, 116 Penna. St. 472. If that decision is to stand, the present case will have to be reversed, as they are in direct conflict. It is only VOL. XXXVI.-49 ente p |