author: HULL, J.

text:
    WILLS — EVIDENCE—TRIAL.
    [Huron (6th) Circuit,
    October Term, 1904.]
    Parker, Hull and Haynes, JJ.
    William E. Moore et al. v. William Caldwell et al.
    1. Testator Must Have Sufficient Mental Capacity to Remember Property, etc.
    A person desiring to make a will must have sufficient mental capacity to remember his property and the proper objects of his bounty, and, without suggestion, to make a testamentary disposition of it; but it is not necessary that he be as strong in mind and body as he ever was, or to have that strength of mind as is required in making a contract.
    2. Delusion of Testator Must be an Insane Delusion to Affect Will.
    A delusion of testator does not constitute mental incapacity unless it is an insane delusion.
    3. Expert and Lay Testimony Must re Considered in Deciding Testator’s Capacity.
    In determining whether or not testator was of sound mind, or was suffering from an insane delusion which influenced him in making and signing a paper alleged to be his will, all the testimony offered on the subject of his mental capacity, both by plaintiff and defendant, must be considered; and in considering the evidence, the testimony of experts should be considered by the jury as any other testimony; and although defendants had no experts, it cannot be said, as matter of law, that the testimony of plaintiff’s experts who never saw testator should outweigh absolutely the testimony of lay witnesses called by defendant who knew testator for several years, and some of whom had business transactions with him, and saw and talked with him every day.
    4. Declaration of one Beneficiary not Binding on Others or Admissible.
    Declarations of one of several beneficiaries under a will as to testator’s unsoundness of mind, etc., are not binding on the other beneficiaries, and are inadmissible against them in a will contest.
    5. Juey, and not Experts, to Decide Testator’s Capacity to Make Will.
    The question propounded to an expert, whether or not testator was in a condition to make such a will as good reason and a normal condition of mind would require, is incompetent. Whether or not testator had sufficient capacity to make a will, is a question altogether for the jury to determine.
    6. Cross-examination as to Conclusions Stated in Affidavit not Permitted, when.
    On cross-examination counsel will not, in a will contest, be permitted to read paragraphs from an affidavit made by witness in a former independent action to the effect that testator was not in good mental and physical condition, and then follow it up with the question, “Is that true?” when such questions are not being asked for the purpose of impeachment. The witness should have been asked the direct question bearing upon the subject-matter of the affidavits, that is, Was testator in feeble condition at such time, etc. Neither can such witness be asked whether he had not made a former statement that testator was crazy.
    7. Faithfulness of Beneficiary to Testator Competent Evidence.
    Evidence of the faithfulness of a beneficiary to testator is competent in a will contest, because one of the questions in such contests always is as to the reasonableness of the will, and whether it is such a one as would have been drawn by testator when in sound mind.

      8. No Right to Cross-examine Witness as to Basis of Opinion until after Examination in Chief.
    Where a witness is called by defendant in a will contest to give his opinion in chief as to the mental capacity of testator, no right exists in favor of plaintiff to cross-examine him upon the facts and grounds upon, which his opinion is based, until after the conclusion of the examination in chief.
    Error to Huron common pleas court.
    O. C. Pinney and A. V. Andrews, for plaintiffs in error.
    Skiles, Green & Sidles and J. R. McKnight, for defendants in -error:
    Testamentary capacity. Page, Wills 114; 25 Am. & Eng. Ene. Law (1 ed.) 970; Redfield, Wills 129; Schouler, Wills (2 ed.) Sec. 68; 1 Schouler’s Jarman, Wills (6 Am. ed.) 63; Thompson, Trial Evidence-Par. 1121; Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43); Wears V. Wears, 15 Ohio St. 90; Haynes v. Haynes, 33 Ohio St. 598 [31 Am. Rep. 579]; Mitten v. Young, 8 Circ. Dec. 391 (18 R. 571); Beresford v. Stanley, 9 Dec. 134 (6 N. P. 38); Kettemann v. Metzger, 13-23 O. C. C. 61; Kime v. Addlesperger, 24 O. C. C. 397; Bewell v. Warden, 24 O. C. C. 344.
    Declarations of one legatee not admissible against rights of other-legatees. Roush v. Wensel, 8 Circ. Dec. 141 (15 R. 133) ; Behrens v. Behrens, 47 Ohio St. 323 [25 N. E. Rep. 209; 21 Am. St. Rep. 820]. Alleged errors in charge to jury. Kuhl v. Reichert, 25 O. C. C. 693.. Insanity, delusions, insane delusions. Thompson, Trial Evidence-Par. 1122; Edwards v. Davis, 11 Re. 876 (30 Bull. 283); Boardman v.. Woodman, 47 N. H. 120, 140; Fraser v. Jennison, 42 Mich. 206 [3 N. W. Rep. 882]; Dunham’s Appeal, 27 Conn. 192; Crum v. Thornley, 47 111. 192; Hall v. Hall, 38 Ala. 131; Cole, In re, 49 Wis. 179 [5 N. W. Rep. 346]; Potter v. Jones, 20 Ore. 239 [25 Pac. Rep. 769; 12 L. R. A. 161]; General Convention v. Crocker, 4 Circ. Dec. 619 (7 R. 327) ; Rappv. Becker, 26 O. C. C. 321; Clark v. State, 12 Ohio 483 [40 Am. Rep. 481],
   HULL, J.

This action was brought in the court below to contest the will of James- A. Moore, late of this county who died in the year 1900. It was tried to the-court and a jury, and the jury returned a verdict in favor of the defendants, finding that the paper writing in question was the will of James A. Moore¡ The motion for a new trial was overruled and judgment -entered upon the verdict and it was to reverse this judgment that a petition in error was filed in this court.

The record is very voluminous containing some 1,500 pages. We have given it sufficient examination to familiarize ourselves with the testimony. We have specially examined the testimony of plaintiffs in error, the testimony of experts called by them and the testimony of other witnesses called by them. We have also examined the testimony offered by the defendants sufficiently to gather the full import thereof.

There was no substantial dispute in the argument of the ease as to what the testimony was, that is, the general trend of it.

Several physicians were called by the plaintiffs and none, or but one on the part of the defendants, and he did not claim to be an expert on the subject of mental diseases. The evidence of experts upon hypothetical questions put to them by counsel for plaintiffs was, that in their judgment, at the time the will was made, James A. Moore was of unsound mind. Other witnesses who were not called as experts, testified substantially that in their judgment, from what they could observe* he was of unsound mind.

The defendants only called one physician, Doctor Garber, who had. been Mr. Moore’s physician in the latter months of his life. He testified that in his opinion, Mr. Moore was of sound mind at the time the will was made.

A large number of lay witnesses were called by the defendants,— some twenty or twenty-five, who had known Mr. Moore, many of them, for a great many years, fifteen, twenty, twenty-five and thirty years, and the most of them lived in the village of Plymouth where Mr. Moore resided for many years, and at the time of his death — and these witnesses testified in behalf of the defendants, stating the facts upon which they based their opinion — that in their judgment, Moore was of sound mind at and about the time the will was made.

An important question in the case, as in most will cases is as to whether or not the verdict was sustained by the evidence, or whether it was against the evidence.

The plaintiffs claim that Mr. Moore was of unsound mind and of insufficient capacity — mental capacity — to make a will at the time this paper was executed.

They also claim in their petition that the will was brought about by undue influence, but this was abandoned at the trial. It was probably not necessary to plead the ground upon which a will was asked to be set aside. The question is, whether it was the will of the testator, or not. But the claim as to undue influence was formally abandoned so that it left only the claim of mental incapacity, and that claim of the plaintiffs, according to the argument and the testimony in the case, was based upon the claim that he was suffering, at the time he made the will and had been for some time prior thereto, from an insane delusion in regard to his wife who was living at the time the will was made, in 1900, but who died two or three days before Mr. Moore died, she having died on Saturday and Mr. Moore on the following Monday.

This alleged insane delusion concerning his wife, as claimed, was a false belief on his part, a belief not sustained by any facts, that she was guilty of unfaithfulness and of improper conduct with other men, —flirting with other men and conducting herself in an improper manner toward them, he believing that she was guilty of infidelity — and it is claimed that this influenced him in making his will to such an extent that the paper was not his will, but was the product of this delusion.

As I before stated, the first and most important question in the case is, whether the-verdict was sustained by the evidence. We will not attempt to go into the testimony in detail.

The members of the household, a sister of Mr. Moore’s wife and a niece, Nellie Wilcox, and some others testified to toward conduct on the part of Mr. Moore, showing these suspicions of his wife, or this belief that she was untrue to him, and various instances and circumstances are testified to tending to show things which it is claimed he said when men passed the house, or when men and boys came to the house; many instances are testified to by witnesses tending to show that he had these suspicions of his wife.

He gave his wife, by the will, the use of all his real estate during her life, so long as she remained his widow — all the real estate except eighty acres of land that he gave to William Caldwell, there being some two hundred and forty acres all together — and besides that he gave her the use of several thousand dollars worth of personal property, some of it being in money, the proceeds of life insurance policies, so that she could use it, if necessary, during her life; and he gave her the use of the residence in Plymouth, the household furniture and everything except a few special bequests to others. He gave to William Caldwell, the man who had been employed by him upon his farm about ten years, eighty acres of land absolutely, he to select that eighty acres from the two hundred and forty; and he made other special bequests — quite a number of them disposing of china, stocks, personal property of various kinds, jewelry, etc.

Mr. Moore was an eccentric man and had been to some extent for many years, perhaps all his life. His business was that of an insurance adjuster who traveled about over the state. He had accumulated property, at the time of his death, to the amount of about $21,000. He came in contact with a great many people as an insurance adjuster.

As I have already stated, some twenty or twenty-five witnesses were called in behalf of the defendants upon this question of his mental capacity, — many old acquaintances, men who had done business with him for twenty-five years, some even longer than that, and some who had known him all their lives, — who testified to his conduct with them, his transactions and relations with them, and basing their opinions upon the facts, as stated by them, they testified that, in their judgment, at the time the will was made and prior thereto, he was of sound mind. He was irritable, as testified to by many witnesses on both sides and peculiar, and sometimes seemed to be under the impression that he was liable to get poor, and might go to the poorhouse. That is a feeling which some people have as they grow old who are. not insane or of unsound mind.

He had three strokes of paralysis, or rather apoplectic strokes. The last one was about a year and a half before the will was made and from that he never recovered physically and perhaps, in fact, he never did have the strength of mind that he had -had before. His mental powers were somewhat weakened by this stroke or by these strokes; there is no question about that. He was not as quick mentally as he had been before; but he continued to do business to some extent and to act for the insurance companies for quite a time after these strokes, but finally, on account of his infirmities he was “laid off,” as it was said, upon- a salary of $100 per month, where formerly he had been getting $300 per month. It was after this stroke or these strokes, when his powers of body and mind had been somewhat impaired, and his earning capacity had been lessened, only earning $100 per month where he had been earning $300 per month, and it appeared as though his time for accumulating property had passed, — I say it was then — that this feeling on his part, that he might get poor some time, or go to the poorhouse, especially manifested itself; and it is said that from being very careful and particular in his dress, he became careless as to what he wore. It may be said of that, that he, having reached this condition in health and being of this peculiar temperament, it might have occurred to him that there was a probability of his becoming poor before his death, and being in this state of health, he naturally would not be so particular as to his dress and things of that character, as he was before.

We shall not undertake to go into the testimony upon that subject in detail. These changes wére noticed in him, but he continued to meet his friends and acquaintances and to do business with them, paid all his bills by checks and so far as disclosed by the record, never made an error in a check that he issued.

He was sometimes very irritable, almost violent perhaps, and became very angry at his niece* Nellie Wilcox, finally ordering her out of the house. He disapproved, it seems, of a young man who showed her attentions about that time.

The will was made in March, 1890, and was drawn by Hon. W. W. Skiles, an attorney of Shelby, who had known Mr. Moore for some time but was not very intimately acquainted with him. Moore came to Skiles’s office and told him how he wanted to dispose of his propery. He seemed to remember his property fully — the various pieces of his property. He had stock and other personal property and he remembered his relatives and his friends to whom he wished to give his property. He made some slight errors in the names of some of his relatives.

The will was drawn up without any suggestion on the part of anyone except by Mr. Moore himself. It was dictated tb a stenographer in his presence and then drawn off on a typewriter and read to him again, and- he pronounced himself satisfied with it in every respect, and he thereupon executed it, signed it, and it was witnessed.

Taking all the testimony together, — I have not undertaken to discuss or refer to all of it — it is our judgment that.the finding of the jury in favor of this will was not and cannot be said to be against the weight of the evidence.

It is said that the testimony of the defendants did not reach the real issue in the case, whether he was possessed of this delusion as to his wife; but after all, the question in the case was whether he had mental capacity to make this will, and although he may have had this belief as to his wife, even if it was unfounded, unless it was an insane delusion, it would not constitute mental incapacity, and the jury were warranted in finding from this evidence, whatever there was of that, that it did not constitute an insane or fixed delusion.

He may have been mistaken about it. There is no evidence here that his wife was not a pure woman. He may have been led to believe these things from some things he had seen or heard or suspicioned and his belief based upon these things. He may have been entirely mistaken about it as he undoubtedly was, and yet, not insane or suffering from delusion; and the jury may have found and properly so that, whatever this belief was, it did not influence him in making this will, or influence him in the provisions that were made for his wife.

She was his second wife. He had been married once before. He had no children by her. There had been a' good deal of trouble. She had twice brought suit against him, once for alimony and once for divorce and alimony and he had been bitter toward her.

It was a natural desire on his part that his property, which he .had accumulated himself, in the end, should go to the members of his own family; but when he came to make his will, he gave her a life estate of the property, of the real estate, and the personal property as far as it was necessary for her to use it for her maintenance and support. He provided for her quite bountifully under all the circumstances, giving her the use of 160 acres of land and the use of this personal property and the home in Plymouth so long as she remained his widow, besides leaving $3,000 in life insurance.

It was not an unnatural desire on his part that the property which he had accumulated should not go tp the benefit of some man that she might thereafter marry. So we say, taking all these things into consideration, the fact that he had had these troubles with his wife and all these things that I have mentioned, the jury would be warranted in finding that, whatever his belief or suspicion was as to his wife, whether founded or unfounded, it did not influence him in making this will to such an extent that it should be set aside, on that ground; and the testimony of all these people who had known Moore this great length of time and had been so intimate with him, was, that in their judgment, he was perfectly sane and competent to transact business. That testimony must be considered also upon the question of this alleged delusion which it is said he had.

All the testimony that was offered upon the subject of his mental capacity both by the defendants and by the plaintiffs, must be considered in determining whether or not at the time he made this will, he was of sound mind and whether he was suffering from any insane delusion that induced him to make and sign a paper that was not in fact his will.

No medical experts were called by the defendants, the defendants’ witness, Doctor Garber, making no claim to be an expert. The testimony of experts goes to the jury to be considered by them as any other testimony, and although the defendants had no experts, it cannot be said that the testimony of the expert witnesses called by the plaintiff should outweigh absolutely the testimony of the lay witnesses called by the defendants; in fact, the testimony of lay witnesses, of sound common sense, practical business men and neighbors who saw this man from day to day on the streets, in their houses and in all the walks of life, who talked with him and observed his conduct, in our judgment, is entitled to as great consideration as the testimony of experts who never saw him and knew nothing of him except as stated in hypothetical questions.

As is often said in the books, it is not necessary for a man to make a will to be as strong in mind and body as he ever was;. in fact, as is often said, it is not necessary for him to have that strength of mind required in making a contract; but he must have sufficient mental capacity to remember his property and the proper objects of his bounty, and without suggestion, to make a testamentary disposition of it.

It seems to us that Colonel Moore clearly had such mental capacity at the time he made this will.

Mr. Skiles who .drew the will who is now dead but whose testimony is in the record, was not intimate with him; was not familiar with his property or with Mr. Moore’s relatives; so, without suggestion, as I have said, from Mr. Skiles or any one else, Mr. Moore gave to Mr. Skiles who drew the will, all of its details.

He had said to many or to some at least, before the will was made, how he intended to dispose of his property to some extent: that he did not intend to give any of his property to Nellie Wilcox. He had said to many that he intended to reward liberally William Caldwell who had been a trusted and tried friend and a faithful employe on his farm. He told others, after the will was made, that he had given property to Caldwell and none to Nellie Wilcox and he told others that he had given a ring mentioned in the will to a man in Dayton and why he gave it. In speaking of Nellie Wilcox, he stated why he gave her nothing. He had evidently planned and purposed this will, before it was drawn and knew what disposition he had made of his property in the will and stated it to others, showing that he understood what he had done.

It was a question for the jury under this evidence, whether the testator had sufficient capacity to make a will at the time it was made and an investigation of this kind usually takes in, as in this case, his whole life, and the jury considering all the testimony, find whether or not the paper is his will, and we think in this case that the finding of the jury was unquestionably correct.’ ,

It is complained by plaintiffs in error that they were not given the right to cross-examine lay witnesses called by the defendants before they gave their opinions as to Colonel Moore’s mental capacity; that is, they were not permitted to cross-examine them upon the facts and grounds upon which they based their opinion, but the court permitted, counsel for defendants to examine the witnesses in full and to ask their opinions as to Moore’s mental condition and then they were turned over to counsel for plaintiffs for cross-examination. In this, we think there was no error.

Some authorities are cited by plaintiffs in error tending to support their proposition; but we think the great weight of authority is against it and the best reasoning is against it. It is not only in eases where mental capacity is involved but there are many cases of opinion, evidence and matters of reputation.

¥e have never, in practice, known of a party being permitted as a matter of right to cross-examine along this line, before a witness has finished his testimony in chief. In matters of value, opinions are often asked and when the foundation is laid an opinion is permitted to be given and then the other side is permitted to cross-examine the witness.

We think it would lead to confusion and an. undue prolongation of a trial to permit a cross-examination of this character, of witnesses of this kind.

Where there is a question as to the competency of a witness or whether the matter is privileged, such as the evidence of a physician, or a lawyer or priest, or whether a conversation occurred between husband and wife in the presence of third parties, cross-examination is permitted before the testimony of such a witness upon the real question is admitted. But it has never been the practice, to our knowledge, to permit this where an opinion is about to be offered, as in eases of this character.

There is a long line of exceptions in the record on this point. It is claimed that in one or two instances, lay witnesses were permitted to give their opinion as to Mr. Moore’s soundness or unsoundness of mind without stating the facts upon which they based that opinion. Pages 572 and 730 of the record are referred to, but upon examination, we think those witnesses very largely stated the facts before they were asked to give their opinion based upon those facts. But there were interruptions due to objections and arguments and finally the question was renewed simply by asking the witnesses to state his opinion but it was understood, of course, that the opinion was based upon the facts already stated and there was no error in the action of the court.

Testimony as to the faithfulness and fidelity of William Caldwell to the testator was objected to and admitted over the objections. In our judgment, this was proper testimony in this case, as will cases are tried. This is the question always, as bearing upon the validity of the instrument. Is the will reasonable; was it such a will as the testator would have drawn had he been in sound mind? Caldwell was one of the main beneficiaries under the will, and it was proper to account for this that it might not appear unreasonable and a fraud. The will itself now, as in Hamlet’s time, is to a great extent “the thing.”

As I have said, Caldwell was given eighty acres of land and it was sought to show his relations with Colonel Moore — that Colonel Moore liked him; that Caldwell had been faithful to him upon the farm and in all their relations, etc., — as bearing upon the reasonableness of the will and the condition of Mrv. Moore’s mind at the time the will was made. In our judgment, this testimony was admissible. If Caldwell had been an enemy or an entire stranger to Moore, and no reason had existed why he should give him any of his property, it would have been perfectly proper for the plaintiffs to have shown these things and we think this testimony in behalf of the defendants to sustain the will was entirely admissible.

' A question put to Doctor Yan Norman by plaintiffs in his deposition was ruled out. It appears on page 89 of the record. We think it was properly excluded. The question was asked Doctor Yan Norman, whether in his judgment Colonel Moore was in a condition to make such a will as good reason and a normal condition of mind required. A long ^ hypothetical question is put to him which cites many facts and he was asked this question, as I have stated.

In our judgment, it was not proper to ask the doctor whether Moore was in a condition to make such a will as good reason and a normal condition of mind required. It came too near asking the witness whether in his judgment, Colonel Moore was competent to make this will, which was a question for the jury.

William Caldwell was placed upon the witness stand by the plaintiffs for cross-examination and was the first witness called in the case. It appears from the record that in one of the alimony cases brought by Mrs. Moore against her husband, affidavits had been filed on the part of Colonel Moore to the effect that he was not in good mental and physical condition for the purpose of showing that he was not capable of earning money, and among these affidavits was that of Caldwell, and counsel for plaintiffs read to Caldwell paragraphs from his affidavit, he being then on the witness stand for the purpose of cross-examination, and asked him whether that was true, or whether he made affidavit to that and he said he did; then he was asked whether that was true. This was excluded. He was asked many questions along that line and finally counsel for plaintiffs asked Caldwell the direct questions bearing upon the subject-matter of the affidavit. Was he in feeble mental condition at such time, etc., and those questions were permitted to be answered by the court.

We are of the opinion that all the plaintiffs were entitled to, was finally admitted by the court; we are of the opinion that it was not proper to ask this witness if he did not say that in his affidavit — if he did not say such and such things in his affidavit — and then follow it up with the question, “Is that true?” He was not being asked these questions for the purpose of impeachment; he had not yet been upon the witness stand and it added nothing to the testimony, that he had made affidavit upon these subjects. The question was not whether the things he made affidavit to, were true or not, but he could be asked the direct question as to the facts, which was asked by counsel and the testimony admitted by the court.

As I have already stated, all that counsel was entitled to, Caldwell answered, of these questions and he did not attempt to dodge, as far as we can discover, the effect of the testimony. He seems to have been a frank witness. We think there was no error in refusing to permit the examination upon the affidavit.

Then Caldwell was asked whether he had not made a statement to a man by the name of Waite, that Moore was crazy, and this was refused by the court, and we think properly so. He was not on the stand for the purpose of impeachment.

There.were other beneficiaries under the will and Caldwell’s declarations out of court could not bind other legatees or devisees under the will, and that class of testimony, it has been held, is not admissible in will contests. The question was before this court in Roush v. Wensel, 8 Circ. Dec. 141 (15 R. 133) and discussed in the opinion delivered by Judge Parker. _ '

Wills cannot be set aside by the admissions of different beneficiaries under the 'will. There might be legatees with only a small interest, and it is very clear that it would be improper to admit their declarations out of court against another beneficiary under the will who might have a much larger interest. Of course, a man’s interest does not affect a rule of law, and I only speak of this to show what the admission of such testimony might lead to. We think the action of the court was correct.

There are some other questions made upon the admission and exclusion of evidence which we shall not especially refer to. In our judgment, there were no prejudicial errors committed by the court in the admission or exclusion of evidence during the trial of the case, which extended over a period of some fifteen days. No exceptions were taken to the charge. The judgment of the court of common pleas will be affirmed.

Parker and Haynes, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    WILLS — PARTITION—TI ME.
    [Hamilton (1st) Circuit Court,
    February 16, 1905.]
    Jelke, Swing and Giffen, JJ.
    Henry W. Steinman v. Anthony C. Steinman et al.
    1. Provision in Wm that Testator’s Estate Shall not be Partitioned until two Years after Death of Life Tenant is Yalid.
    A provision in a will that testator’s estate shall be kept intact for two years after the death of his' wife, to whom a life estate therein was devised, is valid, and will operate to prohibit a partition of the property until the expiration of that time; and a suit therefor brought before the two years have elapsed is premature and cannot be maintained.
    2. Equity having Acquired Jurisdiction in such Case to Grant Certain other Relief will Retain Action and Grant Partition after Time has Elapsed.
    Under these circumstances, an action praying for partition at the earliest possible time, and also for an- accounting and other equitable relief is maintainable in a court of equity for such other purposes; and the court, having thus acquired jurisdiction, will retain the action for the purpose of affording complete relief, and decree partition after the expiration of the time limitation of the will.
    Appeal from Hamilton common pleas court.
    C. J. Hunt and O. W. Bennett, for appellants.
    Tugman & Baker, for appellees:
    On the question of partition. Rammelsberg v. Mitchell, 29 Ohio St. 22, 58; Perry v. Richardson, 27 Ohio St. 110; Eogg v. Beerman, 41 Ohio St. 81 [52 Am. Rep. 71]; Fryman v. Fryman, 6 Cire. Dec. 377 (9 R. 91); 4 Kent’s Commentaries *126, *129: Spaulding v. Woodward, 53 N. H. 573 [16 Am. Rep. 392]; Van Zile, Eq. PL & Pr. See. 412; Gage v. Reid, 104 111. 509; Eillens v. Brinsfield, 108 Ala. 6P5 [18 So. Rep. 604]; Freeman, Co-ten. & Par. Sec. 449; Scott v. Guernsey, 60 Barb. 163; Eosford v. Mervin, 5 Barb. 51; Rosier v. Griffith, 31 Mo. 171; Dameron v. Jameson, 71 Mo. 97; Barnard v. Pope, 14 Mass. (13 Tyng) 434, 436 [7 Am. Dec. 225]; King v. Longworth, 7 Ohio (pt. 2) 231; Olcott v. Bynum, 84 U. S. (17 Wall.) 44; Gordon y. Steinmetz, 71 Ohio St. 372; Anderson v. Gary, 36 Ohio St. 506 [38 Any Rep. 602; Washburn, Real Prop. (6 ed.) See. 143.
   SWING, J.

This was an action for an account of rents and profits and other equitable relief, including partition of certain real estate. The petition was filed May 20, 1903. The real estate in question formerly belonged tq Louis E. Steinman, who died in 1896 testate. By his will,, said Stein-man devised said real estate to his wife for life with remainder to his children. The widow of said Steinman died July 22,- 1902.

The ninth clause of the will is as follows:

“It is my desire that my estate be kept intact and undivided for a period of two years from and after the death of my said wife, or in the event that she do not survive me, then for a period of two years from the date of my decease; I do not intend, however, that this desire shall operate to prevent any sale or other disposition of any part of my estate which all my children should deem advantageous or desirable during the period of two years above specified, but simply advise that no haste be exercised in the closing up of the estate, leaving the ultimate division of the same until the termination of the period of two years aforesaid. During said period of two years I hereby direct, authorize and empower my two sons, Anton Gottlieb and Edward Frederick to collect and receive all rents and other income from my estate, accounting therefor in a proper manner to the parties legally entitled thereto.

Plaintiff alleged in his petition that he is entitled to the one-fifth part of the real estate left by his father and that the defendants, his two brothers and two sisters, are each entitled to the one-fifth part thereof. He further alleged that none of the defendants object to a partition of the property before the expiration of the two years mentioned in said item nine of said will. This allegation of the petition, however, was denied by Amelia M. Wicker, one of the children of said Louis E.' Stein-, man, and one of the defendants in the action. So that the question was directly raised by this answer as to the right of the plaintiff to file a petition asking for partition before the expiration of the two years from the death of the widow, Marie C. Steinman.

We are of the opinion that this provision of the will is valid, and that it prohibited a partition of the real estate left by testator until two years after the decease of his widow, Marie C. Steinman; and following the ease of Hill v. Jones, 65 Ala. 214, we are inclined to the opinion that any suit brought to partition the real estate before the expiration of said two years could not be maintained, for the reason that the same was prematurely brought, and that plaintiff had no subsisting cause of action.

But the petition of the plaintiff in this case was something more then a suit for partition. It was a suit for an accounting and other equitable relief, and also for a partition at the earliest possible time. It is true that in the decree in the court of eommon pleas only a decree for partition was entered, but all other matters were retained for the further decree of the court.

We see no reason to question the right of the plaintiff to maintain his action for an accounting and the other equitable relief asked, nor do we see any reason to question the right of the court to grant the equitable relief asked by the executors in said action upon the answer and cross petition filed by them. Therefore the action of plaintiff was properly brought, and applying the principle that when a court of equity once gets jurisdiction of a subject-matter it will afford complete relief, we are of the opinion that the court of common pleas had the right in this action, after the expiration of two years, to order a decree of partition.

This doctrine of equity is thus stated by Van Zile, Eq. Pl. & Pr. 630:

“But where a court of equity has obtained jurisdiction of the cause upon some clear, equitable ground of jurisdiction, it will retain the cause irrespective of the question of ouster or adverse possession, and do complete justice, though it may involve partitioning the property. This is but following out the theory that obtains in every equity cause; a court having once obtained jurisdiction will retain it until the whole controversy at issue between the parties is settled. ’ ’

In Freeman, Cotenancy & Partition 598, it is said:

“Hence, when a suit is rightfully in equity, and from the adjudication there made it appears that the parties are co-owners and entitled to partition, a decree for such partition may be made irrespective of the question whether the plaintiff is seized or disseized. Thus, where the defendants were in possession claiming under a will, and the complainants filed a bill to have the will construed, and for an accounting and partition, the court held that having acquired jurisdiction for the purpose of construing the will, it had authority to do complete justice between the parties by compelling an accounting and partition.”

And further says:

“When the questions are such as belong to a court of equity, there can be no reason for suspending the proceedings short of complete justice between the parties.”

The same author, on page 599, in discussing “partition” adds this general remark:

“In truth, the limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action is becoming irresistible.”

In the case of Scott v. Guernsey, 60 Barb. 163, 178 the court say:

“There can be no doubt that the- accounting ordered between these tenants in common was proper in this case. This is not the statutory proceeding for partition, but a suit in equity; and therefore, as the court has jurisdiction of the subject-matter and the parties in interest, it is in accordance with a well-established rule, that it should do complete justice between the parties, by disposing of all question's between them in relation to the land and its use. In the language of Judge Story, ‘the -jurisdiction having once rightfully attached, it shall be made effectual for the purpose of complete relief.’ * * * Besides, this action is brought for a partition and account, and in such case the latter will be decreed. ’ ’

To the same effect is the language of the court in Hosford v. Mervin, 5 Barb. 51, 52, where it is said:

“A court of equity will not entertain a bill for partition when the legal title is disputed or doubtful; because a court of law is the proper tribunal to determine such questions. But when the questions are such as belong to a court of equity, it will not suspend the proceedings without doing complete justice between the parties. ’ ’

Partition will be decreed.

Jelke and Giffen, JJ., concur.


author: HENRY, J.

text:
    EMBLEMENTS — FIXTURES.
    [Lorain (8th) Circuit Court,
    May 8, 1905.]
    Marvin, 'Wineli and Henry, JJ.
    Frank Garrett v. Samuel Brant.
    Manure is a Fixture, but Hay and Straw are Generally Treated as Chattels.
    Manure made on a farm is, at the common law, classed as a fixture; but with, respect to bay and straw, they are not, as a general rule, classed as sucb, although it is common practice in leasing farms to expressly covenant that they shall he treated as if in the same category; hut in the absence of such express covenant, they retain their character as chattels, and may he removed by the tenant at the expiration of his term.
    Appeal from Lorain common pleas court.
    E. G. & H. C. Johnson and Q. A. Gillmore, for plaintiff.
    J. F. Wilson and Metcalf & Cinniger, for defendant.
   HENRY, J.

This is an appeal from the Lorain county common pleas court. Plaintiff rented defendant a farm, September 1, 1902, for a term ending November 1, 1905, by written lease providing among other things that “the straw and manure is to be used on the farm.” Later they quarreled, and a written “settlement” was executed by the parties June 4, 1904, stipulating that the term should end December 1, 1904*, that meanwhile defendant shall “conduct the farm as provided in the lease,” “in a husbandlike manner;” that he should “harvest his crops or remove the same on or before December 1, 1904,” and that “this settlement shall take the place of said lease.” This agreement has been carried out, but the defendant on quitting the premises threatened to take the straw with him, and plaintiff brought this action to enjoin his doing so.

The case turns wholly on the construction of the writings. At common law manure made on a farm is a fixture, and it is common practice in leasing farms to covenant expressly that hay and straw shall be treated as if in the same category, in order to preserve the fertility of. the soil by returning these products untimately to the ground from which they have sprung.

Without such a covenant hay and straw are of course not fixtures. The covenant in the original lease on this subject is not free from doubt. Instead of providing that the straw shall be left on the premises, it stipulates that it shall be used on the premises. If the lease terminated in the spring the question would be less uncertain. The contract of settlement moreover expressly abrogates the lease, except as to the manner in which defendant shall conduct the farm. It stipulates nothing as to his duty when -the time comes for him to cease- conducting the farm, except that he is to harvest his crops or remove the same on or before December 1, 1904. It is manifest that the tenant could not well use all the straw on the farm before that date, and his right to remove it then is not so clearly overruled by the writings in evidence that we can enjoin him from so doing. He had the right to remove the straw unless the parties had expressly agreed otherwise. This we find they failed to do in the final agreement. The petition is therefore dismissed.

Marvisi and Winch, JJ., concur.


author: COOK, J.

text:
    BANKS AND BANKING — DEPOSITS—RECEIVERS.
    [Guernsey (7th) Circuit Court,
    April Term, 1905.]
    Cook, Burrows and Laubie, JJ.
    P. S. Baker v. R. V. Orme and David Okly as Receivers of the Commercial Bank Company.
    Deposit with an Insolvent Bank — When Same can be Charged upon the Fund in the Hands oe Receiver.
    Where a general deposit is made in a bank which at the time is hopelessly insolvent which insolvency is known to the cashier who is the general manager of the bank and unknown to the depositor, the other officers taking no control over the business whatever, and immediately after such deposit the bank fails and goes into the hands of receivers, the fund coming into the hands of the receivers being much more than the amount of such deposit, and increased by the amount of the deposit: Held, that the depositor has a right by a suit in equity against the receivers to charge such deposit upon the fund in the hands of the receivers, and have the same paid in preference to the general creditors.
    Appeal from Guernsey common pleas court.
    Mathews & Mathews, for plaintiff:
    The knowledge of Patterson, as the cashier of the Commercial Bank Company and as the general manager of the business of this bank, that this bank was hopelessly insolvent for a long time prior to the receiving of plaintiff’s deposit, is imputed to and becomes the knowledge of the bank. Patterson’s knowledge of the bank’s insolvency was acquired through a long series of transactions as cashier of the bank, but it makes no difference how he acquired this knowledge, if he had it prior to the time plaintiff made his deposit and held out the bank to plaintiff and to the public as solvent. Cragie v. Hadley, 99 N. Y. 131 [1 N. E. Rep. 537; 52 Am. Rep. 9]; St Louis & S. F. By. v. Johnston, 133 U. S. 566 [10 Sup. Ct. Rep..390; 33 L. Ed. 683]; Manhattan Bank v. Walker, 130 U. S. 267 [9 Sup. Ct. Rep. 519; 32 L. Ed. 959]; Holden v. Bank, 72 N. Y. 286.
    The fact that Patterson, the cashier, and Barber, the vice president, who had knowledge that this bank was hopelessly insolvent, concealed its condition from the other officers and directors of the bank does not bring the bank, as a principal, within the exception to the rule as to knowledge as stated in 2 Pomeroy, Equity See. 675, p. 122, so as to relieve the bank of being charged with such knowledge, even though the insolvent condition of the bank were caused chiefly by loans made by the'bank to Patterson and Barber,- and to various corporations with which they were connected.

      The Commercial Bank being insolvent at the time it received plaintiff’s deposit, which was during the last hour that the bank was open for business, and its insolvency being known to two of its officers, each of whom was also a director, the receipt of plaintiff’s deposit was a fraud upon him; no title passed to the bank, and he can reclaim and recover the whole amount of his deposit. Gragie v. Hadley, supra; St. Louis & S. F. By. v. Johnston, supra; Beal v. Somerville (City), 50 Fed. Rep. 647 [1 C. C. A. 598; 5 U. S. App. 14]; Wasson v. Hawkins, 59 Fed. Rep. 233; Philadelphia v. Eckels, 98 Fed. Rep. 485; Philadelphia v. Aldrich, 98 Fed. Rep. 487; Bichardson v. Coffee Go. 102 Fed. Rep. 785; Bichardson v. Bedemption Co. 102 Fed. Rep. 780.
    Plaintiff’s deposit consisted of two checks and cash. One of the checks came into the hands of the first receiver appointed, and was collected by him. The other cheek was forwarded to the Commercial Bank’s correspondent on the day it was deposited, and the amount thereof credited to the account of the Commercial Bank, and afterwards the amount of this check was paid to the receivers.
    Plaintiff having traced the proceeds of these checks into the receiver’s hands, is entitled to recover the amount thereof. Beal v. Somerville (City), 50 Fed. Rep. 647; St. Louis & S. F. By. v. Johnston, 133 U. S. 566 [10 Sup. Ct. Rep. 390; 33 L. Ed. 683]; Gragie v. Hadley, 99 N. Y. 131 [1 N. E. Rep. 537; 52 Am. Rep. 9] ; Philadelphia v. Eckels, 98 Fed. Rep. 485.
    The cash deposited by plaintiff was mingled with the bank’s money within less than an hour before the bank closed on the last day it was open for business, and the amount of plaintiff’s cash deposit was only a small percentage of the cash in the bank when it closed, which amount was placed in the receiver’s hands. It is conceded by defendants that the rqoney which came into their hands, as receivers, was increased by the amount of plaintiff’s deposit; but it is claimed that he is not entitled to recover his cash deposit, unless he can trace the identical money into their hands, and that, since this cash deposit was mingled with the bank’s funds before the receivers took charge and possession of the funds and property of the bank, its identity has been lost and plaintiff cannot recover the amount thereof.
    ‘ ‘ The fact that the money was not marked, and, by a mingling with other'funds of the bank, lost its identity, does not affect the right to recovery in full, if it can be traced to the vaults of the bank, and it appears that a sum equivalent to it remained continuously therein until removed by the receiver.” Massey v. Fisher, 62 Fed. Rep. 958.
    “It is not essential to the right of the depositor to recover his deposit from the receiver” of an insolvent bank money deposited after'it was known by its officers to be insolvent, “that he should be able to trace the identical money deposited into the receiver’s hands, but it is sufficient that the amount which went into his hands was increased by the amount of the deposit.” Richardson v. Redemption Co. 102 Fed. Rep. 780.
    “Where money and checks are unsuspectingly deposited in a bank, which is known by its managing officer to be hopelessly insolvent, a few minutes before closing hour on the last day on which it does business, and the checks are subsequently collected by the bank’s clerk, the whole of the deposit is charged with a trust, and an equal amount may be recovered from the receiver, who retains the specific money among the general mass of the bank’s funds.” Wasson v. Hawkins, 59 Fed. Rep. 233.
    F; L. Rosemond, R. T. Scott and C. S. Turnbaugh, for defendants:
    The deposit was not for collection, nor a special deposit, but was a general one, and the relation of debtor and creditor, and not a trust, arose. Covert v. Rhodes, 48 Ohio St. 66 [27 N. E. Rep. 94]; Railway v. Bank, 54 Ohio St. 60 [42 N. E. Rep. 700; 31 L. .R. A. 653; 56 Am. St. Rep. 700]; 1 Morse, Banks Secs. 186, 573, -575.
    Even if it had been a deposit for collection the fund cannot be followed because of the indistinguishable mingling of the funds. Reeves v. Bank, 8 Ohio St. 465; 2 Morse, Banks Sec. 629.
    Baker can get relief only by actually or in effect obtaining a rescission, and the only basis suggested is fraud. Mere insolvency and not disclosing it are not enough; there is no presumption of fraud, and plaintiff must prove it. 2 Morse, Banks Secs. 629, 589; Quin v. Earle, 95 Fed. Rep. 728, cited 2 Morse, Banks Sec. 629.
    There is no allegation of misrepresentation; the complaint is of silence only; and silence affords no ground for relief unless there were both knowledge and duty to disclose. Baker dealt with Scott, a mere employe, and knowledge on Scott’s part of insolvency is neither shown nor claimed. The knowledge which plaintiff must show is that of the board of directors. Balbach v. Frelinghuysen, 15 Fed. Rep. 675.
    Notice to one director is not enough. 1 Morse, Banks Sec. 112; Story, Agency See: 140c; East Cleveland Ry. v. Everett, 10 Circ. Dec. 493 (19 R. 205).
    Knowledge of Patterson, cashier, and of Barber, vice president, does not bind the bank as to this transaction because (a) prior to this deposit both had absconded and their official connection with the bank had ended, and (b) because the insolvency was caused by their own frauds upon the bank, in violation of their duty, and concealed by them. Instead of giving information to the bank company they deceived it, and filed after ruining it. 1 Morse, Banks Sec. 104a; Story, Agency See. 210; 2 Pomeroy, Eq. Jurisp. Sec. 674; Akers v. Rowan, 10 L. R. A. 705, 706, note. “Exceptions to rule as to imputed notice.”
    The only decisions of the Supreme Court relate to the deposits for collection only, and the question made seems to be covered by no special case.
   COOK, J.

This action is for the purpose of charging the claim of plaintiff upon the fund in the hands of defendants, R. V. Orme and David Okey, as receivers of the Commercial Bank Company, and to order the same paid out of the fund as a preferred claim.

The Commercial Bank Company is a corporation organized under the' general corporation act of, the state.

There is very little, if any, dispute about the facts in the case which are substantially as follows:

On June 13, 1904, plaintiff who for a long time had been a customer of the bank deposited money in the sum of $99 and two checks obtained from his customers, one for the sum of $169 drawn on the old Citizens Bank of Zanesville and the other for the sum of $15 on the National Bank of Cambridge. The money and checks were credited as one item in the pass book of plaintiff and passed to his credit, in the bank, he at that time having a credit in the bank of $100 which made a balance in his account .of $383. This deposit was made in the usual course of business of depositors nothing being said about collecting the checks for plaintiff and.no doubt it was a general deposit and the relation of debtor and creditor immediately took place.

The deposit was received by an employe of the bank who was authorized to receive the same. He had been acting as assistant cashier for about a year but was never elected as such by the board of directors.

In less than an hour after the deposit was made the bank failed and closed its doors. The money was immediately placed among the other money of the bank and became indistinguishably mingled with the same. The check on the old Citizens Bank of Zanesville was placed to the credit of the Commercial Bank Company by it making a balance in favor of the same of $583.55 which was paid over to the receivers by said old Citizens Bank and by them placed in the fund in their hands. The check for $15 was collected by the receivers from the National Bank of Cambridge and placed in tbe fund in their hands. There was on hand in money in the bank at the time of its failure including the deposit of $99 made by plaintiff the sum of $3,026.16 which went into the hands of the receivers.

The evidence further shows that at the timé of the deposit and of the failure, the bank was hopelessly insolvent and had been for at least several months previously and that the cashier and vice president had full knowledge of such insolvency and that plaintiff had no knowledge of such insolvency whatever.

H. C. Patterson was cashier of the bank at the time of its failure and had been such cashier from the time of its organization some three years previously. He was not only the cashier but had the general management of the bank; making all loans and discounts and doing all its business. H. O. Barber was the vice president. He was the brother-in-law of Patterson but gave the affairs of the bank practically no attention whatever, as was the ease with the president, and all the directors’ except Patterson.

Patterson, the cashier,' and Barber, the vice president, were largely engaged in outside enterprises, organizing and building street railways, electric plants, shoe manufactories and other concerns and were also largely interested in two other banks which were tributary to the Commercial Bank Company.

The failure of the bank was entirely through the overdrafts of Patterson and Barber, the money being used in bolstering up their outside enterprises. The money was drawn out upon their checks or obtained on debit slips all of which were charged up in their accounts and the books of the bank showed the condition of their accounts open to any one of the officers or directors desiring to examine the accounts. The overdrawing of their accounts had been going on almost from the organization of the bank. Neither Patterson nor Barber informed the president or any of the directors of the insolvency of the bank and they had no knowledge of such insolvency whatever.

Under these facts is the claim of plaintiff preferred and entitled to be paid out of the fund in the hands of the receivers in preference to the general creditors?

Two reasons are strenuously urged, by attorneys for the recéivers, why the same should not be so ordered:

First. That the insolvency of the bank was due to the act of the cashier and vice president in using the funds of the bank in bolstering up their outside enterprises which was a fraud upon the bank and therefore their knowledge of the insolvency arising from such cause was knowledge obtained in a fraudulent act of their own and such knowledge being withheld from the other officers and directors of the bank, then the bank is not chargeable with such knowledge.

Second. The money having been mingled with the other moneys of the bank before the bank failed and closed its doors and not being distinguishable, and one of the cheeks having gone to the credit of the bank and the other being collected by the receivers and also indistinguishably mingled with the funds of the bank, the same cannot be recovered back in kind and therefore the same cannot be charged upon the fund in the handjs of the receivers.

As to the first reason. There seems to exist an exception to the general rule that knowledge to the agent is knowledge to the principal in this, that when an agent has in the course of his employment been guilty of an actual fraud against his principal contrived and carried out for his own benefit, and he intentionally conceals such fraud from his principal, then his principal is not chargeable with such knowledge even though the agent at the same time intended to defraud another party. The rule is most strongly stated in Pomeroy, Equity See. 675. It reads as follows:

“The second exception as much more important and of far wider application. It is now settled by a series of decisions possessing the highest authority, that when an agent or attorney has, in the course of his employment, been guilty of an actual fraud contrived and carried out for his own benefit, by which he intended to defraud and did defraud his own principal or client, as well as, perhaps, the other party, and the very perpetration of such fraud involved thé necessity of his concealing the facts from his own client, then, under such circumstances, the principal is not charged with constructive notice of facts known by the attorney and thus fraudulently concealed. In other words, if in the course of the same transaction in which he is employed, the agent commits an independent fraud for his own benefit, and designedly against his principal, and it is essential to the very existence or possibility of such fraud that he should conceal the real facts from his principal, then the ordinary presumption of a communication from the agent to his principal fails; on the contrary, a presumption arises that no communication was made, and consequently the principal is not affected with constructive notice. The courts have carefully confined the operation of this exception to the condition described where a presumption necessarily arises that the agent did not disclose the real facts to his principal, because he was committing such an independent fraud that concealment was essential to its perpetration; it has never been extended beyond these circumstances. It follows, therefore, that every fraud of an agent in the course-of his employment and in the very same transaction, does not fall within this exception; and most emphatically, it does not apply when the agent’s fraud consists merely in his concealment of material facts within his own knowledge from his principal.”

By reference to the notes to this section it will be seen that the rule is restricted to a very narrow compass, and it is doubted that the rule would apply to managing officers. See cases cited in note.

It will be observed that this rule only applies when an agent has, in the course of his employment, been guilty of an actual fraud contrived and carried out for his own benefit, by which he intended to defraud and did defraud his own principal, as well as, perhaps, the other party, and the very perpetration of such fraud involved the necessity of concealing the facts from his principal. Under such circumstances, the principal is not charged with constructive notice of facts known by the agent thus fraudulently concealed. Furthermore it must be an independent fraud for his own benefit.

The facts in this case fall far short of sustaining the exception to the general rule. Patterson and Barber, the cashier and vice president, were the owners of more than one-half of the capital stock of the bank; they had large outside enterprises; the funds of the bank were being used by them in the prosecution of these enterprises; it went along for nearly three years from year to year; the money was drawn out by them by checking upon their accounts the same as any other customer or by debit slips placed in the cash tills.

What independent act or fraud was done by them or either of them that they should necessarily conceal from their principal? The books showed their entire course of dealing which were open to the directors and all officers of the bank which would entirely rebut any purpose of concealment. We therefore see no fact in this case to make it an exception to the general rule that knowledge to the agent is knowledge to the principal and especially so where the evidence conclusively shows that Patterson was not only cashier in the ordinary sense but that he had the entire control of the business of the bank.

The second claim of the receivers presents a question of more than ordinary importance.

As we have said, immediately upon making the deposit by plaintiff the relation of debtor and creditor attached and the question presented is:

Where a depositor makes a deposit in a bank under such circumstances, after the bank has become hopelessly insolvent and of which hopeless insolvency the cashier who is the general manager of the bank has full knowledge and of which insolvency the depositor has no knowledge and which deposit is indistinguishably mingled with the other funds of the bank, can such depositor insist that his claim shall be a charge upon the fund in the hands of the receivers and have' the same paid to such depositor in preference to the general creditors, when the -fund which the receivers received, including such deposit, is more than the amount of the deposit made by such depositor?

This question, insofar as we are informed, has never been determined by our Supreme Court.

The cases of Reeves v. Bank, 8 Ohio St. 465 and Jones v. Kilbreth, 49 Ohio St. 401 [31 N. E. Rep. 346] are not applicable for the reason that the deposits made in those cases were for collection, while in this, as we have stated, the deposit was an ordinary one and the’ relation of debtor and creditor immediately arose.

Counsel on both sides have argued the question very elaborately and with much research, citing a large number of authorities.

' We shall not attempt to enter into a discussion of the question or review these authorities at length; sufficient to say that in our judgment the plaintiff’s claim both for the money and checks should be paid by the receivers as a preferred claim and we base our judgment largely upon the case of Quin v. Earle, 95 Fed. Rep. 728, a case almost precisely like the one under consideration. The syllabus of that case is as follows:

“1. Banks- — Insolvency—Recovery of Deposit from Receiver.
“To authorize the recovery of a general deposit from the receiver of an insolvent bank on the ground that the bank was insolvent, and known to be so by its officers, when the deposit was received, and that the fraud authorized a rescission ■ of the contract by the depositor, the thing deposited, or its proceeds, must be capable of identification in the hands of the receiver, or it must appear that 'the funds coming into his hands were increased by that amount.
“2. Same — Proof of Fraud in Receiving Deposit — Knowledge of Insolvency by Officers.
“To constitute fraud on the part of a bank in receiving a deposit when insolvent, which will authorize a rescission by the depositor, and a recovery of the deposit from a receiver subsequently appointed for the bank, the officers of the bank must have known or believed that it was insolvent at the time the deposit was received; and such knowledge cannot be presumed, but must be proved. The mere fact that the bank was known by the officers to be in an embarrassed condition is' not sufficient to establish fraud.”

In the opinion Mr. Justice Gray, on pages 730 and 731, says:

“The principle of equity invoked by the complainant’s bill is, that where a bank, whose officers know it to be hopelessly insolvent, receives moneys or cheeks on deposit on the very eve of its failure, it commits such a fraud on the depositor, who is ignorant of its condition, that he is entitled to reclaim the moneys or proceeds of checks. This proposition, thus stated, must be assented to. It is a development of the doctrine that a contract founded on fraud is void, and may be rescinded at the option of the defrauded party, and cannot be enforced against him, that no title to property so obtained passes, and that restoration of the property obtained by means of the fraud, if properly identified, can be compelled by appropriate proceedings in law or in equity.

Considering the usage of business of the banks, when a general deposit is accepted by a bank there is an implied contract between the depositor and depositary, which creates the relation of creditor and debtor between them. A fraud on the part of the bank which induces the deposit vitiates this contract, at the option of the other party, as fraud would vitiate any other contract, and no rights' can arise out of it to the bank. What the remedy may be will depend in this case, as in others, upon the situation of the parties and the subject-matter of the contract. Upon a rescission of the contract, and due notice thereof, the check or draft deposited, or the proceeds thereof, if sufficiently identified, may be reclaimed, if in the possession of the depositary.

With regard to personal property other than money, the question of identification is generally easy of determination. Not so of money, and perhaps some personal property other than money. If these be confused in the mass of exactly similar things, specific identification becomes impossible. But the more modern doctrine has come to be that, where the fraudulent depositary so mingles goods which he has obtained by fraud with the mass of like goods of his own, the whole may be seized, or considered as held in trust, until equitable separation of the property of the defrauded party is made. So, advancing one step further, where money thus obtained has gone to swell the aggregate in the possession of the fraudulent party, it may, under proper proceedings, be segregated in amount from such aggregate sum, and made the subject of a trust, in order to accomplish the ends of justice. If my bushel of corn be obtained from me by fraud, and be poured into the mass of similar grain in the bin of the party committing the fraud, justice is satisfied, and no one can be wronged, by my having restored to me a bushel of the same grain out of the bin, though the identical grains obtained from me are not restored.

If, on the other hand, the funds in possession of the defrauding bank be not increased by the property or the money so obtained, so that the aggregate amount of assets for distribution among the general creditors is not made larger by reason of the plaintiff’s contribution thereto, then this extension of the doctrine of identification will not apply, and the complainant cannot have remedy as for a preferred claim. All the cases referred to by the counsel for complainant are consistent with this distinction, and the case of City Bank v. Blackmore, 75 Fed. Rep. 771 [21 C. C. A. 514; 43 U. S. App. 617], distinctly elaborates the doctrine just stated — Judge Taft, who delivered the opinion of .the court, saying:

“No authority has been cited to show that a claim founded on fraud is entitled to a priority over other claims. It is only where, by the rescission of the contract out of which the claim arises, on the ground of fraud, the specific thing parted with, or its proceeds, can be sufficiently identified to be returned, that fraud seems to give a priority of distribution. It may not be necessary to show earmarks upon the proceeds of the thing parted with to justify such a remedy; but it must at least appear that the funds in the hands of the receiver were increased or benefited by the proceeds, and the recovery is limited to the extent of this increase or benefit. In every case relied on by counsel for appellant, recovery, if decreed, was based on the fact that the property in the hands of the assignee or receiver of the person or bank against whom the claim of fraud, right to rescind, and priority of distribution was made, included in its mass either the very thing parted with, or its proceeds. St. Louis & S. F. Ry. v. Johnston, 133 U. S. 573 [10 Sup. Ct. Rep. 390]; Commercial Bank v. Armstrong, 7 O. F. D. 487 [148 U. S. 50; 13 Sup. Ct. Rep. 533]; Cragie v. Hadley, 99 N. Y. 131 [1 N. E. Rep. 537].”

Decree in favor of plaintiff as prayed for in his petition.

Burrows and Laubie, JJ., concur.


author: PARKER, J.

text:
    BENEFICIAL ASSOCIATIONS — HUSBAND AND WIFE.
    [Lucas (6th) Circuit Court,
    March 18, 1905.]
    Hull, Haynes and. Parker, JJ.
    Clara A. Starr v. Knights of Maccabees of the World et al.
    1. Woman Unlawfully Occupying Relation of Wife to Assured is “Dependent” and Entitled to Insurance, when.
    A woman who occupied the relation of wife to a man for a period of twelve years in the honest belief that she was his lawful wife, which relation however was unlawful in that he had a wife living at the time from whom he had never been divorced, is a “dependent” within the meaning of the charter and by-laws of a benefit society which authorizes the designation of dependents as beneficiaries in policies of insurance issued' to their members, and is, therefore, as against the lawful wife or the heirs of the assured, entitled to the proceeds of a policy of insurance issued to him by the society without notice of such relation, in which she was referred to as his wife and designated as the beneficiary, notwithstanding the policy was issued after she discovered the unlawful relation referred to.
    2. Person must be within Class for whose Benefit, Benefit Society may Issue Policy of Insurance, etc.
    A person who is not of the class for whose benefit a benefit society is authorized to issue a policy of insurance, cannot legally be made a beneficiary in the policy, or demand the amount payable upon the death of the assured.
    Kohn & Northup, for plaintiff:
    No one can raise the question of the validity of a contract, except a party thereto or some one in privity with him, or the person for whose benefit the contract was made or some one in privity with him, and the plaintiff in error does not come within this rule. MaGuire v. Supreme Council, 59 App. Div. 143 [69 N. Y. Supp. 61]; Markey v. Supreme Council, 79 N. Y. Snpp. 1069; Taylor v. Hair, 112 Fed. Rep. 913; Tepper v. Supreme Council, 61 N. J. Eq. 638 [47 Atl. Rep. 460; 88 Am. St. Rep. 449]; Young Men’s Mut. Life Assn. v. Harrison, 10 Dee. Re. 786 (23 Bull. 360).
    The nondisclosure by decedent of the fact that he had another wife living does not vitiate his designation of his second wife as beneficiary. Story v. Mutual Ben. Assn. 95 N. Y. 474; Supreme Lodge A. O.LJ. W. v. Htitchinson, 6 Ind. App. 399 [33 N. E. Rep. 816]; Crosby v. Ball, 4 Ontario Law Rep. 496; Carmichael v. Mutual Ben. Assn. 51 Mich.-494 [16 N. W. Rep. 871].
    For similar statute likewise construed in this state, see the case of Young Men’s Mtrt. Life Assn. v. Harrison, 10 Dee. Re. 786 (23 Bull. 360) ; Supreme Tent of Knights of Maccabees v. McAllister, 132 Mich. 69 [92 N. W. Rep. 770] ; James v. Supreme Council, 130 Fed. Rep. 1014.

      M. D. Merrick, J. C. Jones and O. W. Nelson, for defendants: •
    The statutes, articles of association and by-laws are a .part of the contract of insurance. Bacon, Mutual Ben. Soc. Sec. 255; Gillam v. Dale, 76 Pac. Rep. 861 (Kan.) ; Supreme Lodge Knights of Honor v. Nairn, 60 Mich. 44 [26 N. W. Rep. 826]; Wolf v. Grand Lodge, 102 Mich. 23 [60 N. W. Rep. 445]; Metropolitan Life Ins. Co. v. O’Brien, 92 Mich. 584 [52 N. W. Rep. 1012]; Dietrich v. Belief Assn. 45 Wis. 79; American Legion of Honor v. Green, 71 Md. 263 [17 Atl. Rep. 1048; 17 Am. St. Rep. 527]; Keener v. Grand Lodge, 38 Mo. App. 543; Palmer v. Welch, 132 111. 141 [23 N. E. Rep. 412]; Alexander v. Parker, 144 111. 355 [33 N. E. Rep. 183; 19 L. R. A. 187],
    The defendant in error has no legal right to recover in this case, as she is not an eligible beneficiary by any right or authority. See Keener v. Grand Lodge, 38 Mo. App. 543; Grand Lodge v. Eisner, 26 Mo. App. 108; American Legion of Honor v. Green, 71 Md. 263 [17 Atl. Rep. 1048; 17 Am. St. Rep. 527]; Supreme Council Catholic Benevolent Legion v. McGinness, 59 Ohio St. 531 [53 N. E. Rep. 54]; National Mut. Aid Assn. v. Gonser, 43 Ohio St. 1 [1N. E. Rep. 11]; State v. Mutual Ben. Assn. 42 Ohio St. 579; State v. Mutual Belief Assn. 29 Ohio St. 399; Bacon, Benefit Soc. Secs. 241, 244, 246, 247; Bolton v. Bolton, 73 Me. 299; Elsey v. Mutual Belief Assn. 142 Mass. 224 [7 N. E. Rep. 844] ; American Legion of Honor v. Perry, 140 Mass. 580 [5 N. E. Rep. 634]; Maryland Mut. Ben. Soc. v. Clendinen, 44 Md. 429 [22 Am. Rep. 52] ; Eastman v. Prov. Belief, 62 N. H. 555; Worley v. Aid Assn. 10 Fed. Rep. 227; Green v. Green, 23 Hun (N. Y.) 478; Duvall v. Goodson, 79 Ky. 224; Masonic Belief Assn. v. McAuley, 2 Mackey 70; McClure v. Johnson, 56 Iowa 620 [10 N. W. Rep. 217]; Ballou v. Gile, 50 Wis. 614 [7 N. W.'Rep. 561]; Catholic Ben. Assn. v. Priest, 46 Mich. 429 [9 N. W. Rep. 481]; Covenant Mut. Ben. Assn. v. Sears, 114 111. 108 [29 N. E. Rep. 480]; Penn v. Lewis, 10 Mo. App. 478; Addison v. Commercial Trav. Assn. 144 Mass. 591 [12 N. E. Rep. 407]; Kentucky Masonic Mut. L. Ins. Co. v. Miller, 76 Ky. (13 Bush) 489.
    If the insured die, naming as his beneficiary a person not authorized to take, the law itself will dispose of the fund for the benefit of the classes named in it. Bacon, Mutual Ben. Soc. Sec. 242; Palmer v. Welch, 132 111. 141 [23 N. E. Rep. 412]; Cullin v. Knights of Maccabees, 77 Hun 6 [28 N. Y. Supp. 276]; American Legion of Honor v. Perry, 140 Mass. 580 [5 N. E. Rep. 634]; Bishop v. Grand Lodge, 112 N. Y. 627 [20 N. E. Rep. 562]; Ballou v. Gile, 50 Wis. 614 [7 N. W. Rep. 561].
   PARKER, J.

It is not worth while to increase the literature of this case very much. The facts of the case are so well set out in the opinion of Judge Tyler, of the common pleas court that I shall adopt his statement thereof. And Judge Tyler has cited and commented upon many of the authorities that counsel rely upon, and with his reasoning and conclusions thereon we are contented. His statement of facts and opinion is as follows:

“This is an action brought by the plaintiff, Clara A. Starr, to recover of the defendant, The Supreme Tent of the Knights of Maccabees of the World, the sum of $1,000 upon a life benefit certificate by it issued to one Charles E. Starr, on March 26, 1895, whereby it promised and agreed to pay the said plaintiff, as Clara E. Starr, at the death of the said Charles E. Starr, one assessment on its membership, not exceeding in amount the sum of $1,000, upon satisfactory proof of his decease, together with the .surrender of said certificate, provided he had, in every particular, complied with its laws, then in force or thereafter adopted, and had not obtained his membership by fraud or misrepresentation as to his age, physical condition or occupation.
“The defendant, not denying or desiring to contest its liability, filed an affidavit in this cause, setting forth that one Sarah Styre, without collusion on its part, claimed said sum of $1,000, and that it was ready to pay the same as directed by the court. Upon its motion the said Sarah Styre was required to appear and to assert her claim or be barred therefrom, and it was ordered to pay said sum into this court.
“With that order the defendant has complied, and the cause proceeds as between the plaintiff and the said Sarah Styre, for the purpose of determining to whom the fund now in court shall be paid.
“The said Sarah Styre has filed an amended answer and cross petition and an amendment thereto, which are skillfully drafted and reflect credit upon her counsel. The allegations thereof evidence a thorough appreciation of the legal questions involved, and the plaintiff, by filing a general demurrer thereto, has presented them to the court for adjudication.
‘ ‘ The defendant, the Supreme Tent of the Knights of the Maccabees of the World, is a corporation, incorporated on September 12, 1885, under a law of the state of Michigan which, among other things, provided, ‘That any number of persons, not less than five, may become a body corporate and politic, for the purpose of securing to the families, or heirs of any member, upon hjs death, a certain sum of money, to be paid by such corporation, either out of its funds or by an assessment made upon the members of such corporation,’ and that it should ‘only issue certificates or policies payable to the husband, wife, family, heirs, creditors, or assigns of any member.’ '
“The articles of association of said corporation authorized and empowered it:
“ ‘3. To establish a benefit fund or funds from which, on satisfactory evidence of the death or disability of a member who has complied with all its lawful requirements, the sum of $2,000 in case of death shall be paid to his family, orphans, dependents, or legal heirs, as such member may direct. ’
“The rules and regulations of said corporation provided, among other things, as follows:
‘ ‘ Section 174. No beneficiary or life benefit certificate shall be made payable to any person other than the wife, children, dependent, mother, father, sister, brother, aunt, uncle, nephew or niece of the member.
“Section 175. In the event of the death of the beneficiary or beneficiaries named in the certificate of membership before the decease of such member, if no other designation be made, the benefit shall be paid first to the widow, if living; if no widow, to the children; if no children, to the dependents, etc.
“May 25, 1893, the legislature of the state of Michigan enacted a law pertaining to corporations of the class to which the defendant belonged, whereby it was among other things provided that, ‘Payment of death benefits shall be made only to the wife, husband, children and dependent children, mother, father, sister, brother, or‘blood relatives to the fourth degree, of the member;’ provided further, that, ‘When the laws of any such association already provide that an affianced wife or any other person who is dependent upon the member for maintenance, food, clothing, lodging, or education, may be made a beneficiary, payment of death benefits may be made to such beneficiary, but no certificate of membership shall be made payable to, nor any death benefits be paid to an affianced wife or any beneficiary by reason of dependency as hereinbefore provided, unless satisfactory proof of such affianced relation or dependency shall have been filed with and accepted by the executive officers of such association.’
“On February 15, 1872, the cross petitioner was duly and legally married to one Charles E. Styre, who thereafter assumed the name of Charles E. Starr, and as the issue of such relation, two children were born.
“In the spring of 1875, he wilfully abandoned his family and subsequently, without having procured a divorce from his wife, he married the plaintiff with whom he lived and cohabited continuously thereafter until his death, which occurred on February 5, 1904.
“In June, 1894, the said Charles E. Starr became a member of One of the local divisions of the defendant, known as Maumee Tent No. 9, and on March 25, 1895, the death benefit certificate, upon which this action is based was issued to him.
“In the certificate the plaintiff is described as bearing to the assured the relation of wife, though the defendant had no knowledge of the facts hereinbefore recited.
“Upon these facts the cross petitioner bases the claim that the plaintiff is not within any of the classes of persons to whom the defendant was authorized by law to make payment of the fund; that there was a failure on the part of the assured to designate a lawful beneficiary, and that, under Sec. 175 of the constitution and by-laws, she is entitled thereto.
“Is the plaintiff a legal beneficiary? It will be conceded by me that the person designated as a beneficiary must be one of the class or classes to whom the insurer is authorized by law to pay the fund.
“In Michigan Mut. Ben. Assn. v. Rolfe, 76 Mich. 146, 151 [42 N. W. Rep. 1094], it is said:
“ ‘No person who is not of the class for whose benefit the association was authorized can be a beneficiary. ’
“To the same effect is Wolf v. Grand Lodge, 102 Mich. 23, 34 [60 N. W. Rep. 445]; National Mut. Aid Assn. v. Gonser, 43 Ohio St. 1 [1 N. E. Rep. 11], and many others.
“In Keener v. Grand Lodge, 38 Mo. App. 543, George Keener, the assured, having a lawful wife, Nellie, abandoned her and thereafter lived with Katie Burke “in an unlawful, illicit and licentious way.” During this relation a death benefit certificate was issued him, payable to her as his friend. Subsequently it was surrendered and a new one issued, payable to her as his wife. Thereafter and upon his deathbed they were married. It was held:
“First. Tlie power of the assured is limited to appointment of his beneficiary, and no one not so appointed, is entitled to the fund.
“Second. The appointee must be of the class named in the law which ‘brings the association into being.’
“Third. The relation between the assured and Katie Burke was unlawful, illicit and licentious; ‘that she was not a dependent or a member of his family. ’
“Fourth. That the fund belonged to neither claimant, but, under the by-laws of the association, to the heirs of the assured.
“In Carmichael v. Benefit Assn. 51 Mich. 494 [16 N. W. Rep. 871], the beneficiary lived with the assured from her early youth until the latter’s death, in old age, when she was thirty-six. She was not related to him by blood or marriage, and the only question involved was: ‘Were they of the same family, within the meaning of the statute ? ’ The court held that they were, and says, page 495:
“ ‘The facts are, that they resided under the same roof, and as constituents of the same social and domestic circle, from her early youth until his death, in old age, and when she had reached the age of thirty-six years. He was never married, so far as appears, and had no other home, and there was no finding that any relatives remained to him. He regarded the plaintiff very much as a daughter, and she treated him with much of the care which that relation would naturally call out. ’
“ ‘These are the conspicuous facts reported by the judge on this point. * * * Now this word ‘family,’ contained-in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body.’
“In Crosby v. Bull, 4 Ont. 496, a benefit certificate was issued to Philip Crosby by this same defendant payable to Mary Crosby, his wife. At the time of their marriage he had a lawful wife living, but Mary did not know of this until some time thereafter, and continued until his death to live and cohabit with him as his wife. The fund was decreed to Mary, upon the ground that her relation to the assured was not illicit, though continued after knowledge of his duplicity; that he was morally bound to support her, and that she was a ‘dependent’ within the meaning of See. 174 of the association by-laws.
‘ ‘ The decision rendered in the case of McCarthy v. Supreme Lodge, 153 Mass. 314 [26 N. E. Rep. 866; 11 L. R. A. 144; 25 Am. St. Rep. 637], defines the word ‘dependent’ and holds that a girl engaged to the assured, and who leaves one position to accept another at lower wages upon his promise to pay the difference, is a dependent and may be his beneficiary.
“In Supreme Lodge v. Hutchinson, 6 Ind. App. 399 [33 N. E. Rep. 816], the assured, representing himself as a widower, was-married to Margaretta, who lived with him as such until his death. In fact he had a lawful wife living, whom he had abandoned. It was held that Margaretta, though not his legal wife, was a dependent and entitled to the fund.
“In Story v. Benefit Assn. 95 N. Y. 474, the assured, having a wife then living, married Hannah Wright, with whom he lived until his death. The defendant was the insurer which sought to avoid liability^ because the plaintiff was not the widow of the assured. The court says, page 476:
“ ‘We think the instrument of June, 1878, operated as an assent by the association to the appointment of the plaintiff as beneficiary of the fund which should become payable on thé death of Robert Story, and entitled her, upon his death, in the absence of any other or different appointment, to demand and receive it. It may be true that the bylaw, which prescribes the obligation and duty of the association on the death of a member, contemplated a payment to the person who should be the lawful widow of a deceased member. But this was not a limitation of the power of the company so as to prevent it from recognizing as the beneficiary, a person who might be designated by the member as holding to him the relation of wife. Such designation made during the lifetime of the member and assented to by the company, until changed by the mutual agreement of the member and the company, or at least until the arrangement was repudiated by one of the parties thereto, was binding. The nondisclosure by Story of the prior marriage -was not a fraud upon the association. Its obligation was not in any way enlarged by making the plaintiff the beneficiary. Nor did the appropriation of the fund for her benefit contravene the policy or objects of the association. The plaintiff for sixteen years lived with Story, believing herself to be his lawful wife. They had children dependent upon them for support. It was a case where it was the duty of Story to provide for them and the provision he made through this insurance was in entire accord with the objects of the defendant’s organization.’
“In Supreme Tent of K. O. M. v. McAllister, 132 Mich. 69 [92 N. W. Rep. 770], decided by the supreme court of Michigan, Clara Baker, believing herself divorced from her husband, married William McAllister, with whom she lived as his wife, until his death. During the continuance of this relation, and in 1890, a death benefit certificate was issued him, payable to his wife Clara. Upon his death the fund was claimed by her and the decedent’s mother, who alleged that there had been no divorce, and that the marriage of her son to Clara was void. The court says, page 771:
“ ‘The validity of a marriage does not depend upon the good faith of the parties entering into it. Both parties must be competent to contract. Unless both are single, their marriage is void, however innocently they may have entered into that relation. It is not necessary to cite authorities to this proposition. But this rigid rule has not been applied in insurance policies of the mutual benefit associations, now so common, where the parties have acted in good faith.’
“The court follows the decision rendered in Story v. Benefit Assn. supra, also Supreme Lodge v. Hutchinson, 6 Ind. App. 399 [33 N. E. Rep. 816], and distinguishes Keener v. Grand Lodge, 38 Mo. App. 543.
“The court further says, page 772:
“ ‘Though she may have failed to show a valid divorce, we think it not contrary to public policy to permit these mutual benefit associations to issue policies in favor of those occupying such a relation, in the honest, «belief that they are husband and wife.’
“The decision rendered in the case of Bolton v. Bolton, 73 Me. 299, I do not regard as pertinent, for the reason that 'the contract was to pay the widow of the assured, who was not designated by name.
“In the case under consideration, it is not alleged that the plaintiff, at the time she entered into the marriage with the said Charles E. Starr, had any knowledge of his previous marriage with the cross petitioner, and therefore it cannot be said that -their relations were illicit or licentious, or that they became so when she discovered the facts.
“By reason of the authorities above cited I am of the opinion that the plaintiff is entitled to the fund and that the demurrer must be sustained. ’ ’

To this opinion I will add somewhat, chiefly on points not discussed by Judge Tyler.

It may be observed from the mere reading of these by-laws that, it is provided by Sec. 174 that only persons bearing certain relationships to the insured may be beneficiaries. That, obviously, is so that this-insurance may not be carried on as a mere matter of speculation, which, would be against public policy — as some lines of insurance have been carried on, for instance such as has been known as “graveyard insurance.” It is so that provision may be made for those in whom the insured has a real interest, and those who are dependent upon him, and who-have a real interest in his life.

The following Sec. 175, provides that, “In the event of the death of the beneficiary or beneficiaries named in the certificate of membership before the decease of such member, if no other designation be made, the benefit shall be paid first to the widow” then to the children, and so on down. "We think there can be no question but what the person that the insured desired to have receive this insurance was the plaintiff, Clara E. Starr, the so-called second wife. She is named as the-beneficiary. It is not insurance running to his wife, but it is insurance running to Clara E. Starr described in the certificate as “bearing the relationship to him of wife,” and that, we take it, was merely his method of description of the person. The person intended by the insured was the woman he was living with as his wife at the time he took out this insurance, and not the cross petitioner, the abandoned wife. It turned out that this Clara E. Starr was not his lawful wife. She appears to have been innocent of all knowledge of the fact that he had an undivorced wife living, until a few years before this insurance was taken out, and after she had been living with him for upwards of twelve years. Technically the relationship was bigamous, illicit and immoral in the ease of the man, but so far as she was concerned it was not so— it was all right and proper.

It is said that when she discovered that she was not his true and lawful wife, good behavior on her part, proper respect for the laws of the country, religion and morality, required of her that she take measures to sever the relation — that she should have quit living with him. We have presented her only the bare bones of the situation — we have not the evidence before us. We do not know what all the circumstances were or might have been. So far as' appears, this first wife was entirely content with the severance of the relations of herself and her husband, and so far as she was concerned,' she may have been entirely content with his living with this other woman, and there may have been circumstances of their lives and situation that would have made it a. great hardship for her to have at that period undertaken to break up> the relation that she had entered into in this way. While under the criminal law she might thereafter have been guilty of living with the man in a state of adultery and it would be fair to describe the relationship as illicit — knowingly so— yet in the construction of these rules of beneficial orders the law of life insurance upon the subject is more tolerant of such conditions than the criminal law, and the judge of the court below cited a number of cases in which persons not the lawful wives but made beneficiaries as such were allowed to avail themselves of the benefits of this form of insurance; though we find no case in which it is shown that the person occupying that position was aware that she was not the true and lawful wife.

But, even if not the true and lawful wife, even if the description of Clara E. Starr as a person bearing the relationship to him of wife may not be accurate, may not be true, yet he was authorized, as we find under the laws of the state of kfichigan, to insure himself for the benefit of dependents; and it may well be so far as anything appears in these pleadings, that she actually and legally occupied the relationship to him of a dependent, and would therefore be entitled to this insurance under such description. The person who is to take being made certain by the certificate, the matter of description is not so material, provided she comes within one of the classes on whose behalf he was authorized under the laws of Michigan to take out insurance.

Now it seems to us that there is another reason why it may be said that there is no error of which the plaintiff may rightfully complain, even though Clara B. Starr may not be entitled to this money. It seems to us entirely clear that in any event Sarah Styre could not recover this money; that she has no interest in it; that if it did not go to Clara B. Starr it would not go to the plaintiff. To test her right we must look at the situation as it would be if she were undertaking to enforce payment of this policy to her by the insurer, and as if Clara E. Starr were not here to .controvert her claim at all; or as if the insurer had paid the claim to Clara E. Starr without taking Sarah Styre into consideration, and then Sarah Styre should come in and assert her claim. And we cannot see that under the laws and rules of the association as we have them before us here in these pleadings, Sarah Styre is entitled to any of this fund. She is not named or described as a beneficiary; she is not the person intended.

But it is urged that if the money may not be lawfully paid to Clara E. Starr, then there is a failure to designate a beneficiary to whom the money may be lawfully paid, and that in that event it should go to the other persons having this insurable interest, in the order named in the rule, to wit, to the wife, the children, dependents, father, mother, sisters, etc. We find no provision in the certificate of the association or .in any statute governing the matter, to the effect that if the insured fails to designate a beneficiary, or if the beneficiary named is not qualified to take (that is, the one named and designated by the insurer as occupying a certain relation, does not occupy such a relation) the insurance shall then inure to the benefit of the widow or to the heirs or the estate, or to some other person. The rules provide for such a devolution only in the event of the death of the beneficiary named by the member occurring before the decease of such member, and we know of no rule or authority for saying that the failure to designate a person as beneficiary, or the designation of a person not qualified to take, shall amount to the same thing in law as death of the named beneficiary, in the lifetime of the insured.

The rights of the parties are contractual; they depend upon the contract, and the order has not promised by this certificate that if no person shall be named as beneficiary, or if the person named shall be disqualified to take, the benefit shall go to certain other persons; and we know of no statute of Michigan providing, and fio rule of law to the effect that the policy shall receive that construction or shall be enforced in that manner. Our view of the matter is, that if it should turn out that there is no person authorized to take, the insurance would lapse and the fund would go back to the insurance company. Sarah Styre has no claim that she may enforce in apposition to the claim of Clara E. Starr and has no standing to oppose payment to the latter on grounds of morality or public policy. She does not represent the state or the general public in this matter. Neither do we find that there is such an objection on the ground of morality or public policy to the payment of this insurance to Clara E. Starr as should move the court to interfere sua sponte and prevent such payment.

It is suggested in the brief of plaintiff in error that there are certain authorities in Michigan holding that where there is no beneficiary named in the certificate qualified to take, the fund goes to the heirs. It appears that in the case of Wolf v. Grand Lodge, 102 Mich. 23, 34 [60 N. W. Rep. 445], it is stated that it was so held in the case of Michigan Mut. Ben. Assn. v. Rolfe, 76 Mich. 146 [42 N. W. Rep. 1094]; but upon looking at the case last mentioned we find that there the policy provided that the fund was to go first to the wife, and second, to the heirs, and so on. That is, the construction put upon it by the court.

The heirs are designated as the persons to whom it shall go in the event that the wife does not survive to take the insurance, and the question raised and controverted there was whether' by the heirs named in the certificate, was meant those of the beneficiary, (the wife), or the heirs of the insured; and the court held that it meant the heirs of the insured; and one reason given was, that the heirs of the beneficiary would not be qualified to take under the laws of the state; that under the rules of the order they could not have been insured unless they sustained certain relations to the insured, and in that ease they did not; and it was said that the beneficiary named had no vested interest in the insurance until after the death of the insured, and as she died before the insured died, having no vested interest, nothing would devolve from her upon her heirs. This case of Wolf v. Grand Lodge, supra, though it arose in Michigan was controlled largely by the laws of Illinois, and it was held in that case that the person claiming that 'fund was entitled to have it, and it was given to such person because she was designated to receive it; and it seems that under the statutes of Illinois she .might take it although not of any of the classes named as beneficiaries in the rules of the association, because the statute of Illinois permitted one of her class to take, and the rules of the association would not be permitted to defeat the policy of the statute. That was the real question involved in that case.

We hold, therefore, with the court of common pleas, that this plaintiff was entitled to receive this fund, that is, as between her and the cross petitioner. What her rights might have been had the insurance company undertaken to defend against her claim, we are not called upon to say; what her rights might have been if some one representing the state should intervene we are not called upon to say. We simply say that Sarah Styre is not in a position to intervene to prevent the payment, of this fund to the plaintiff; we hold with the common pleas court upon the ground that the judge has stated, and upon the further ground that Sarah Styre had no right and no standing to intervene to prevent the payment of the money to the plaintiff. The judgment of the court of common pleas is affirmed. The question of costs has been overlooked and we will have to take that subject up at another time.

Hull and Haynes, JJ., concur.