meat of every right which the testator intended, and the law can assure them.

"I would therefore reverse the decree, dismiss the petition, and set aside all proceedings at the cost of the appellees."

TRUSTS--STATUTES REGULATING.-There is a very great dif ference between the authority of the legislature over the estate of the trustee and its authority over that of the cestui que trust. The title of the former is not a beneficial or vested interest. He holds it merely that he may perform duties imposed by the trust, and he can, therefore, be divested of it without being divested of any valuable or vested right of property: Monographic note to Tyler v. Herring, 19 Am. St. Rep. 272.

TRUSTS-POWER OF COURTS OVER.-Courts will not interfere with the exercise of discretionary powers by trustees where they are acting in good faith, without fraud or collusion, and without selfish, corrupt, or improper motives; but they will interfere where the exercise of discretion by trustees is infected with fraud or misbehavior, or is thischievously and ruinously exercised, or where they decline to undertake the duty of exercising discretion: Randolph v. East Birmingham Land Co., 104 Ala. 355; 53 Am. St. Rep. 64, and extended note. See Highberger v. Stiffler, 21 Md. RS; 83 Am. Dec. 593; Dennison v. Goehring, 7 Pa. St. 175; 47 Am. Dec. 505.

NATIONAL MUTUAL INSURANCE COMPANY v. HOME BENEFIT SOCIETY.

[131 PENNSYLVANIA STATE, 443.]

INSURANCE-LIFE-FORFEITURE - FAILURE TO PAY PREMIUMS.-If a life insurance company has declared a policy for. feited without authority, and has refused to accept a premium, the fact that the insured subsequently failed to pay premiums as they fell due does not affect the right to recover on the policy.

INSURANCE-LIFEFORFEITURE - FAILURE TO PAY PREMIUMS.-If an insurance company enters into a contract by which it agrees to transfer its membership to another company, and the latter agrees to take such members and reinsure them on the basis of their original applications in the former company on the execution of satisfactory transfer applications, and a member of the former company sends a check for a premium due, and fills out a transfer application, in which he states that he has recently recovered from an attack of pneumonia, but that his health is then fair, the latter company has no right to return his check and reject his application on the ground that it "is not satisfactory on account of physical condition and age," nor to insist that the applicant submit to a medical examination, and his failure to pay a subsequent premium when it falls due does not forfeit the right to recover on the policy.

Assumpsit on a policy of life insurance. Edward O'Brien held a policy of life insurance in the National Mutual Insurance Company of New York. This company entered into a contract with the Home Benefit Society, by which it agreed to transfer its membership to the latter company, and the latter agreed to reinsure said members on the basis of their original applications to the former company and on the execution of a satisfactory trans

fer application. On April 17, 1894, a quarterly premium of seventy-seven dollars and twenty-five cents became due from O'Brien, and he sent this amount to the Home Benefit Society. It sent a transfer application to him, which he filled out, stating that he had recently recovered from an attack of pneumonia, but that his health was then fair. The company returned his check for the premium, and demanded that he be examined by the company's physician. This he refused to do, and did not pay the next premium falling due on July 17, 1894. He died the following August. Judgment for plaintiff, and defendant appealed.

J. G. Johnson, N. Heblich, and E. L. Mooney, for the appellant.

J. Ryon and G. W. Ryon, for the appellee.

448 MCCOLLUM, C. J. There is nothing in the allowance of the amendments complained of which furnishes ground for reversing the judgment. The use plaintiff is the beneficiary named in the policy issued by the National Mutual Insurance Company on the life of her husband. But for the contract of March 28, 1894, her right to maintain an action against the insurer for the amount of the policy could not be questioned. If the insurer had unjustly declared the policy forfeited, and thereupon refused to accept from the insured the premium proffered in accordance with its terms, it could not, while insisting upon the forfeiture, set up the failure to tender the next quarterly premium as a bar to his suit for the enforcement of his rights: Girard Life Ins. Co. v. Mutual Life Ins. Co., 86 Pa. St. 236. In the case cited the company declared the policy forfeited for nonpayment of a quarterly premium on the day it was due, and, on tender of the same two days thereafter, declined to accept it. This occurred more than a year before the death of the insured, and there was no payment or tender of quarterly premiums after the rejection of the one above mentioned. It was held in an action against the company by the administrator of the insured that "where the company has declared a policy forfeited and refused to accept a premium the fact that the insured subsequently failed to pay premiums as they fell due will not affect the right to recover on the policy." That which is not a bar to an action on the policy by the insured or his administrator is not a bar to a suit against it by the beneficiary named in it. If, therefore, the defendant in this case was bound by its contract with the National Mutual InEarance Company to reinsure Edward O'Brien on the basis of his original application to, and the terms of his insurance with, the latter, his failure to tender the July premium cannot operate as a

defense. Its denial that it was bound to reinsure him and its refusal to accept the April premium rendered a tender of the next quarterly premium unnecessary. We cannot find in the evidence anything which operates as a release of the defendant from any liability imposed by its contract. The respective rights of O'Brien and the defendant under the contract were not extinguished or qualified by anything said or done by either of them. The case was tried in the court below on the apparently mutual theory of the parties 449 to it that the plaintiff was entitled to recover the amount of the policy or nothing. No claim or suggestion appears to have been made by either of them that there might be a recovery for a less sum. It was the existence of the liability claimed by the plaintiff and denied by the defendant, and not the extent or measure of it, that was in dispute.

The National Mutual Insurance Company agreed "to transfer, or cause to be transferred, to the best of its ability," the membership of it to the defendant. It could do no more in this direction because the New York statute under which the contract was made expressly conceded the right of every member of it, on giving the required notice to elect to be transferred to or reinsured by another company. The defendant agreed to reinsure the members of the National Mutual Insurance Company upon execution of satisfactory transfer applications on the basis of their original applications to it, and to rate them at the same amount with premiums payable at same dates as they were then paying in it. What effect has the requirement of a satisfactory transfer application upon the liability of the defendant? Does it warrant the refusal of the defendant to reinsure a member on the ground that his application for transfer "is not satisfactory on account of physical condition and age?" This is the distinct ground on which the defendant refused to reinsure O'Brien. If it is tenable ground for refusal, the agreement respecting the basis of reinsurance and the rating of members amounts to nothing, because the defendant may reject the transfer application of any member whose age or health may appear to it as presenting an undesirable risk.

The contract as construed by the defendant fails to afford to the membership of the National Mutual Insurance Company the protection contemplated by the statute under which it was made. It was not so construed by that company when its members were requested to approve it. On the contrary, their approval was obtained on the express assurance that they would be transferred without examination as at the age of entry in the National Mutual Insurance Company, and at the same rates and dates of payments as with it. This assurance was warranted, we think, by the

terms of the contract. The words "satisfactory transfer application, etc.," considered in connection with what precedes and follows them, do not mean that the defendant 450 will reinsure the applicant for transfer on condition that his age and health are satisfactory to it. To attribute to them this meaning is to defeat the obvious purpose of the contract and of the statute which authorized it. The paramount purpose of the contract was protection to the members of the National Mutual Insurance by reinsurance with the defendant. In our view of the contract, it bound the latter to reinsure the members of the former who elected to have their insurance transferred in accordance with its provisions. The defendant sent an application for transfer to O'Brien who fully and correctly answered all the questions propounded in it, and signed it as instructed. It neither disclosed nor concealed anything which released the defendant from its obligation to him. It must therefore be regarded as a "satisfactory transfer application" within the meaning of the contract. Thenceforth the defendant was liable for the amount of his policy with the National Mutual Company on his compliance with its provisions respecting premiums and the payment of them. As we have already seen, his failure to tender the July premium is not a bar to this action. The views herein expressed are in accord with the able opinion filed by the learned court below on discharging the rule for a new trial.

We infer from the record that the defendant was not allowed a credit for the April and July premiums, amounting to one hundred and fifty-four dollars and fifty cents. If this inference is in accordance with the fact, we direct that the court below cause a credit to be entered on the judgment for that amount.

The judgment, subject to the above direction, is affirmed.

INSURANCE-LIFE-PREMIUM - FORFEITURE FOR NONPAYMENT--WAIVER.--The right to declare a forfeiture of a policy for the nonpayment of premiums may be waived, and the waiver may be manifested by conduct as well as by words: Phenix Ins. Co. v. Tomlinson, 125 Ind. 84; 21 Am. St. Rep. 203, and note. See Meyer v. Knickerbocker Life Ins. Co., 73 N. Y. 516; 29 Am. Rep. 200, and extended note. If a life insurance company wrongfully refuses to accept a premium and determines the policy, the insured may treat the policy as determined: McCall v. Phoenix Mut. Life Ins. Co., 9 W. Va. 237; 27 Am. Rep. 558. See Marden v. Hotel Owners' Ins. Co., 85 Iowa, 584; 39 Am. St. Rep. 316, and note; Appleton v. Phoenix Mat. Life Ins. Co., 59 N. H. 541; 47 Am. Rep. 220. Where an insurer, after loss, relies upon a specified defense alone, and so notifies the assured, he will not be permitted to retract it and set up a new and different defense, where the assured has relied upon the defense announced to his prejudice: Western etc. Pipe Lines v. Home Ins. Co., 145 Pa. St. 316; 27 Am. St. Rep. 703. See, also Stylow v. Wisconsin Odd Fellows' etc. Ins. Co., 69 Wis. 224; 2 Am. St. Rep. 738, and note.

COMMONWEALTH V. EISENHOWER.

[181 PENNSYLVANIA STATE, 470.]

MURDER-KILLING BY MISTAKE.-The fact that a person otherwise guilty of murder in the first degree killed another than the person intended does not in any degree lessen his guilt.

MURDER-CAUSE OF DEATH.-A person otherwise guilty of murder cannot escape by showing that the death was the result of an accident occurring in an operation made necessary by his felonious

act.

JURIES.-JURORS WHO HAVE BEEN "STOOD ASIDE" are properly recalled in the order in which they have been "stood aside,” and the accused is not thereby deprived of any right, nor does he suffer any injury.

TRIAL-ORDER OF-DISCRETION.—The general conduct of a trial, as well as the order in which it shall proceed, is largely within the discretion of the trial court, and it is only when abuse of such discretion is clearly shown that the appellate court may interfere.

MURDER-CROSS-EXAMINATION OF THE ACCUSED.-If the accused in a murder trial has testified in his own behalf, he may be recalled for cross-examination during the time that rebuttal evidence for the prosecution is being offered.

MURDER-APPELLATE

PRACTICE.-IMPROPER REMARKS OF COUNSEL for the prosecution in a murder trial cannot be reviewed on appeal when attention was not called to them on the trial, and they are not part of the record, although they were embodied in grounds for a new trial.

MURDER-SEPARATION OF JURY-PRESUMPTION-REBUTTAL.-In cases of conviction of murder, the separation of the jurors further than is necessarily required to enable them to perform their duties as such, and under the care of a sworn officer, creates a presumption of improper influence, but this presumption may be rebutted by the prosecution by clear and convincing proof.

MURDER--CONDUCT OF TRIAL-PRIVATE COUNSEL.— The action of the trial court in permitting private counsel to close the case for the prosecution in a murder trial is not ground for the reversal of the verdict and judgment.

Indictment, trial, and conviction for murder in the first degrce. Defendant appealed.

C. N. Brunn and G. Dyson, for the appellant.

F. W. Bechtel, district attorney, and J. F. Whalen, for the appellee.

475 PER CURIAM. A careful consideration of the voluminous record in this case has convinced us that there is no error therein of which the prisoner has any just reason to complain. The trial appears to have been so conducted by the learned president of the eighth judicial district, who specially presided thereat. as to secure for the accused a fair and impartial trial. We find nothing in any of his rulings that would justify us in reversing the judgment of the law pronounced on the verdict; nor is