for the Eighth Circuit, in Gordon v. Ware Nat. Bank, 132 Fed. 444, 449, 65 C. C. A. 580, 584, 67 L. R. A. 550, where he says:

"This is a great commercial nation. The policy of the nation, the business habits and acts of its citizens, and the tendency of the decisions of its courts are to depart more and more from the old rule that choses in action are not assignable, to make them more and more the subjects of traffic and of commerce, and to sustain their transfers in the ordinary course of business."

The fields of finance and commerce are sufficiently broad without extension in the direction of the negotiability of contracts which have their origin in the wholesome desire to provide for the contingencies of life, the hazards of business, and the support of those survivors dependent upon the assured. Their use as collateral, to secure an actual advance made at the time and the payment of premiums necessary to carry the contract, is recognized by the courts which regard sound public policy as opposed to mere speculative bargains based upon the chances of the continuance of human life.

We have not overlooked the fact that the policy on its face provides that "any claim against the company arising under an assignment of the policy should be subject to proof of interest." Thus the company might escape payment-not of the policy, for that was undoubtedly valid when issued-to an assignee who could not show. an interest. The contention is that this clause is inserted solely for the benefit of the insurer, and that it has no effect as between the assured and his assignee. It is thus said that the insurer, having paid the money into court, has thereby waived this clause. In support of this, counsel for appellee cite Mechanics' Nat. Bank v. Comins, 72 N. H. 12, 55 Atl. 191, 101 Am. St. Rep. 650, Spencer v. Meyers, 150 N. Y. 269, 44 N. E. 912, 34 L. R. A. 175, 55 Am. St. Rep. 675, as well as certain other cases not much in point. We are not disposed to assent to the proposition that a clause of this character is inserted wholly for the benefit of the insurer. It is there in recognition of public policy in respect to the necessity of an insurable interest. When Burchard and Grigsby made the agreement of assignment, they must be taken to have had knowledge of this limitation. The assured as well as the general public were concerned. A different principle might apply if the limitation were one plainly inserted for the benefit of the insurer alone. This distinction is recognized by May on Insurance, § 110, and in Stevens v. Warren, 101 Mass. 564, 566. In that case the policy forbid any assignment without the consent of the insurer. The policy was assigned to one who had no interest in the life of the assured, but the proceeds were paid by the company without objection to the administrator of the assured. The bill was one of interpleader to determine the rights of the administrator of the assured and the assignee. After saying that the assignment could only take effect, the company not having assented, "as a designation by mutual agreement" of the assured and the assignee, the court said:

"The purpose of the clause in the policy, forbidding assignments without the assent of the company, is undoubtedly to guard against the increased risks of speculating insurance. The insurers are entitled to the full benefit of such a provision, as a matter of contract; and, as the policy of the law accords with its purpose, the court will not regard with favor any rights sought to be acquired in contravention of the provision.

"The administrator will therefore hold the proceeds of the policy as assets of the estate of his intestate, discharged of any claim thereto under the assignment of the policy to Dewey K. Warren."

But if there is no question of public policy involved in respect of the assignability of such contracts, the clause, in the circumstances. of this case, is of little consequence. Certainly the waiver of the clause does not affect the question of the validity or invalidity of the assignment as between the assured and the assignee. The conclusion. of the whole matter is that the assignment is valid to the extent of the money actually paid for it as well as for all advances of premiums subsequently made. Beyond this it is a gambling contract and not enforceable.

Decree will be reversed, with directions to enter a decree reimbursing Dr. Grigsby as indicated, and for the payment of the remainder of the fund to the administrators of the assured.

EDDY v. EDDY et al.

(Circuit Court of Appeals, Sixth Circuit. March 25, 1909.)

No. 1,867.

1. WILLS ($ 797*)-PROVISION FOR WIDOW-ELECTION-FRAUD RESCISSION. Where the widow of a man whose estate amounted to more than $400,000, 78 years old, in feeble health, unused to business, and in need, was approached by her husband's son, who was named as his executor, and who was a devisee, legatee, and an intelligent and competent business man, knowing all the facts concerning the estate, and was induced by him to make an election of an annuity, the present worth of which was not more than $3,500, without giving her any information concerning her right under the statutes of the state to elect to take a widow's portion, which would have been of much greater benefit to her, and to renounce the will, the widow would be relieved in equity from the consequences of such election, especially where her application was made before the estate had been closed, so that no harm would result to the interest of other beneficiaries. [Ed. Note. For other cases, see Wills, Cent. Dig. § 2069; Dec. Dig. § 797.*]

2. COURTS (§ 489*)-FEDERAL COURTS-JURISDICTION-PROBATE PROCEEDINGS. While federal courts will not take cognizance of purely administrative proceedings in the settlement of deceased's estates, and will not invade the possession of the assets taken by probate courts for the purpose of administration, federal courts will take jurisdiction of a suit by a widow, a citizen of one state, against the executors of her deceased husband's estate situated in another state, to set aside her election to take under the will, as procured by fraudulent concealment by one of the executors, and to establish and enforce her claim under the statute of descents and distribution of the state, allowing a widow to elect to take a statutory estate instead of the provision made for her by the will.

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 489.*

Probate jurisdiction, see note to Bedford Quarries Co. v. Thomlinson, 36 C. C. A. 276.]

B. COURTS (§ 2004*)-PROBATE COURTS-EQUITABLE JURISDICTION.

A probate court has no plenary equitable jurisdiction to grant a widow relief from an election to take under her husband's will, procured from her by one of the executors by alleged fraudulent concealment.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 476, 477; Dec. Dig. § 2004.*1

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

4. LIMITATION OF ACTIONS (§ 100*)-COMPUTATION OF PERIOD-DISCOVERY OF FRAUD.

After the filing of a husband's will for probate, one of the executors went to another state, where the widow was residing, and by fraudulent concealment procured from her an instrument which she did not know was an election to take an annuity under the will and releasing her statutory estate, and in fact did not know that she had a right to make such an election. She had no knowledge at the time as to the value of the es tate nor that she had been imposed upon, until May 25, 1907, more than five years after making such election, when within two months thereafter she filed a bill to vacate her election and to receive her statutory estate. Held, that the year within which the widow was required to elect as provided by Comp. Laws Mich. § 9301, did not begin to run until she discovered the fraud, and hence she was not barred thereby from obtaining such relief.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 480-493; Dec. Dig. § 100.*]

5. COURTS (§ 489*)—FEDERAL COURTS-ACCOUNTING.

Where a federal court had jurisdiction of a suit by a widow to set aside an election to take under her husband's will and to be awarded her statutory estate, the widow being entitled to such relief, the court would not only determine her right, but would take an account, the estate being still unsettled, and determine the amount the widow was entitled to receive therefrom.

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 489.*] 6. WILLS (8 797*)-WIDOW'S ELECTION-VACATION EVIDENCE.

In a widow's suit to set aside an election to take under her husband's will, awarding her only a small annuity, procured by one of the executors by fraudulent concealment, the books of a business concern in which the widow was interested were admissible as bearing on the disparity be tween the value of the widow's statutory interest and what she received. [Ed. Note. For other cases, see Wills, Dec. Dig. § 797.*]

7. EQUITY ( 404*)-TESTIMONY BEFORE MASTER OBJECTIONS.

Where testimony in an equity suit is taken before a master, counsel has no right to direct a witness not to answer questions believed to be objectionable, the proper course being to state the objection on the record, after which the answers must be received and the objections retained to the hearing.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 888; Dec. Dig. § 404.*]

Appeal from the Circuit Court of the United States for the Eastern District of Michigan.

Alfred Lucking, for appellant.

W. S. Humphrey, for appellees.

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge.

SEVERENS, Circuit Judge. This is an appeal taken by the complainant from the decree of the Circuit Court dismissing her bill, wherein she sought the rescission of an instrument in which she had signified her acceptance of the provisions made in her behalf by the last will and testament of her deceased husband, Charles K. Eddy, and released all other claims against his estate. She alleged that the instrument was obtained from her by undue influence and fraudulent concealment practiced by Walter S. Eddy, who was one of the execu

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tors of the said will, and the following were some of her prayers for relief:

"(3) That this court will by its decree hold that the failure of complainant to file in the probate court for Saginaw county the statutory notice of her election to take her widow's portion of her husband's estate in lieu of the provisions for her made in the will of her husband was due to the fraud, fault, and artifice of said defendants, and not to any fault or neglect of complainant. "(4) That this court will by its decree find that complainant was fraudulently prevented by defendants from securing her just rights in her husband's estate and from taking the provisions allowed to her by the statutes of Michigan, and that this court will establish complainant's present right to elect to take, in lieu of the provisions of said will, the share of her husband's present estate secured by statute as aforesaid to her as his widow, and will give her the same allowance as if she has duly elected to take under the statutes of Michigan, and will in all respects undo the effects of said fraud and restore your oratrix to her rights.

"(5) That this court will order an accounting of the assets of the estate of said Charles K. Eddy, deceased, and of the dealings between defendants, individually, and as executors, as to the affairs of said estate, including all receipts and disbursements, and will cause said defendants to pay and turn over to this complainant her just share of the present assets of the estate of her husband, just as if she were now electing lawfully and formally to take under the provisions made for her by the laws of Michigan, in lieu of the annuity left her under the terms of the will of her deceased husband."

By section 9300, Comp. Laws Mich., it is provided:

"That all dispositions of personal property by last will and testament shall be subject to the following limitations and restriction:

"First, if the testator shall leave surviving him, a wife, the testamentary disposition shall be subject to the election of such wife, to take any interest that may be given to her, by the testator in his last will and testament; or in lieu thereof, to take the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate, until the sum shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate, and in case no provision be made for her in said will, she shall be entitled to the election aforesaid.

And by section 9301 that:

"The election to take otherwise than under the will, in any contingency above contemplated, shall be made in writing, and filed in the court in which proceedings for the settlement of the estate are being taken, within one year from the probate of the will; and the failure to file such election within the time above provided shall be deemed an election to take under the will."

The defendants are the executors of the will and the heirs, legatees, and distributees of the estate.

The facts which constitute the subject of the controversy as alleged in the bill are substantially these, although others may be mentioned. incidentally in dealing with particular topics: Charles K. Eddy, already somewhat advanced in years, was a man of considerable wealth, residing at Saginaw, Mich., where he had a home and a place of business. He, with his three children, the defendants in this suit, owned, each one-fourth, the capital stock of C. K. Eddy & Sons, a corporation engaged principally in dealing in lands and timber. He had a home at Los Angeles, Cal., where he spent portions of the year. He had also other property. And in the whole his estate was of the value of nearly $500,000. He had already made, in anticipation of his marriage, a

division of his property between his three children by a former marriage and himself in such manner that each would own a one-fourth interest. In the summer of 1897 he met the complainant, with whom he had been in close friendly relations in their youth while living at their homes in Maine, and to whom he was at one time engaged to be married. She, too, had been married, but the wife of the one and the husband of the other had been dead for several years. Their friendship was renewed, and on November 3, 1897, they were married. He was then about 76 years old, and she was about two years younger. They lived together happily, most of the time at Los Angeles, until his death, which occurred May 9, 1901. His children were not pleased with the marriage, but the sons treated her with respect and kindly. Their relations with her were, however, not intimate. There is some evidence in the record indicating that the father felt hurt at the lack of cordiality shown by his children to his wife. He left a will made December 9, 1896, and a codicil thereto dated July 30, 1898. By these he devised his homestead at Saginaw to his son Walter, and then devised and bequeathed all his other real and personal property to his children in specified proportions; but he charged upon the estate an annuity of $500 to be paid to Cordelia Dunning Dolliver of Saginaw during her life, and another "annuity of $500, per year during her natural life," to his wife, Caroline M. Eddy. He appointed his sons as executors. At the time of Mr. Eddy's death, the lady named Dolliver in the will was living or staying with the Eddys at Los Angeles. The expenses of his last illness and his funeral consumed the funds on hand, and Mrs. Eddy was in some embarrassment about her means of sustenance. Nothing was heard from Mr. Eddy's children in Michigan. until finally some friends of Mrs. Eddy communicated by letter with them, apprising them of her need and inquiring whether any and what provision had been made for her by her late husband. No response was made to these inquiries except to say that they were engrossed with anxiety over the illness of the daughter, Mrs. Mills, but that as soon as was practicable they would give attention to the matters inquired about and would then give information about them. Meantime they sent to Mrs. Dolliver the sum of about $2,500 to pay funeral expenses and for her use and that of Mrs. Eddy. How much came to Mrs. Eddy does not appear. She continued to be in need. Mrs. Dolliver seems to have regarded Mrs. Eddy with much disfavor, and as a burden which she was evidently anxious to be rid of. Mrs. Dolliver was a sister of Mr. Eddy's first wife. A letter found in the record, written by Charles K. Eddy not long before his death to his son Arthur, shows that his children were already endeavoring to obtain assignments of his property, and that he protested vigorously against what he called their "wholesale scramble for the assignment of all my interests (supposed or otherwise) outside of the corporation," which, he says, "is uncalled for, and not conducive to happiness for any of us." But the danger was that, being in feeble health, he might be moved to make some other disposition more favorable to his widow than he had made by his will. This letter, of which we have quoted only a small portion, shows his extreme solicitude for

168 F.-38