that the defendant knew, or had any below, as administrator of Mr. Howes, reason to suppose that the apples were whose life it purported to insure, had in any respect different from the repre. received the policy, it was in reality sentations which the plaintiff stated had not delivered until after the death of been made concerning same. In that the assured, and in ignorance of that respect the proof was wholly d ficient. event. This is not disputed, but plainIt is claimed that this defect is sup-titl

' below insisted that a contract of inplied by defendants' proof; we think on surance had been made between Howes a review of the evidence it is not. and the insurance company, before his Fraud is not to be conjectured, but death, which bound the company; and must be proven by satisfactory evidence wliether this was so or not is the prinby which its existence can reasonably cipal question in the case. be concluded.

Another defense, however, was that Judgment appealed from affirmed. the assured, having in his application,

Opinion by Daniels, J.; Braily, J., in answer to the questions propounded coucurring:

to him, stated, among other things, that

his habits of life were correct and temLIFE INSURANCE. BURDEN OF perate, and bad ever been so, and that PROOF. CONTRACT FOR. he had never habitually used ardent U. S. SUPREME COURT.

spirits to the extent of intemperance ; The Piedmont and Arlington Life and in reply to the qnestion, “ Are you Insurance Company, Plaintiff'in Error, subject to, or have you had, dyspepsia, v. Ashley W. Ewing, adminstrator of diarrhea, dysentery, disease of the heart, the estate of John F. Howes, deceased. stomach, bowels, or any of the vital orDecided April, 1876.

gans ?" answered “ no." The defendIn an action upon a life insurance ant alleges in his answer to the declara

policy, where the defense is that the tion that these answers were untrue. assured made false answers to ques On this branch of the case the plaintions in his application, the defend- tiff' in error claimed that the burden of ant must prove their falsity; it is not for the plaintiff

' 'to prove his proving the truth of these answers was answers true.

on plaintiff below, and that if he failed Where the administrator of the de- to introduce satisfactory evidence on

ceased had received the policy but it that subject he could not recover ; but was n t in reality delivered by the the court below ruled that defendant agent until after the death of the assured, and in ignorance of that

must prove their falsity. event, no recovery can be had unless

The number of questions in this apa valid contract of insurance existed plication which require an answer are between the insurer and insured, be- from thirty to fifty in every case. fore the latter's death, and the policy The court submitted to the jury the delivered in pursuance thereof:

question whether, notwithstanding the In error to the Circuit Court of the policy was delivered to a friend of the United States for the Western District deceased after his death by the agent of Missouri.

of the company, in ignorance of the This was an action on a policy of life fact of his death, there had been a coninsurance issued by plaintiff in error. tract for insurance before his death,

The defense is, that thongh plaintiff which made this d livery a duty, and,


therefore, valid. And in doing this, vot pay the said sum, and that afterthe court placed before the jury hypo- wards, to wit, on the 12th day of Octothetically the principal facts proven on ber, 1871, said Bell, being about to rethat subject, and said if they found them move to the neighborhood of Brazeto, as thus stated to be true, they were fifteen miles from Jefferson City, called sufficient to justify a verdict for the again upon said Howes, and found plaintiff. This charge is the main error him sick. Ilowes told him that he relied on to reverse the judgment. would look up the accounts as soon as

It appears that Howes was publisher he was able to get to his office, and of a newspaper, and that the special would settle the matter." agent of the company, Huff, desiring This evidence seems to be uncontrato advertise in the paper, an agreement dicted. On the 14th day of October, was made that Howes should take a on or about six o'clock in the evening, policy on his life for $5,000, and the Howes died, and Bell not in cost of a year's advertisement should the city. But on that day, Ilowe's go towards paying the first annual pre- friend and partner, Ragan, (at what mium. The advertisement was to cost hour is not stated,) paid to a man using $70, and its publication in the paper the same office with Bell, the $17.70, commenced at once. This was about and gave a receipt for the bill for printthe 28th of August, 1871. Hoves ing of $70, and took from the same made his formal application, and the person a receipt in full for the $57.70 company sent its local agent, Bell, with paid on the policy, describing it by instructions to deliver the policy on the number. This receipt was signed R. payment of the balance of the first | A. II utford, for J. F. Bell, agent, &c. annual premium, to wit, $17.70, the Neither II ufford nor Bell knew of whole premium being $87.70.

Hlowe's condition at this time. Ilufford "It appeared in evidence,” says the wrote to Bell what he had done, and bill of exceptions, “ that said policy requested him to send the policy by was executed by the officers of the mail, which he did. There is some company and forwarded to said Bell, question raised as to Hufford's power and received by him at Jefferson City, to accept and receipt for the money, Missouri, about the 6th day of Septem- and it he had none, then as to Bell's ber, 1861, to be countersigned and de- ratification of his act. livered ; that he tendered the same to Held, 1. That the burden of proving said Howes and demanded the cash the answers to the questions to be false part of said advance premium to wit, was upon the defendant. $17.70, but that said Howes did not pay 2. There is no evidence to show that the same, saying that the printing was Howes and Inft, the first agent, ever to pay the first semi-annual premium came to any terms as to the amount of on the policy ; that he would write to the premium, and but little to show Huff, the special agent of the company, that they agreed on the price of the with whom he had made the contract at advertisement. It is quite plain that Kansas City, about it; that after giving when the policy was presented to said Howes time to hear from said spe. Howes and the balance of $17.70 decial agent, said Bell called again upon manded, that the parties had not then said Howes for the $17.70, but he did come to an understanding of the pre

cise terms of the contract. It amourited Attachment execution issued by to no more than this : that the company Bachman on a judgment execution should advertise in Howes' paper; that against Wolbert, defendant, and Wilhe should take a policy of the company cox, garnishee. for $5,000, and that the advertisement It was agreed that the following case should go as payment on the first pre- stated should be submitted to the Court, mium.

with the right reserved to each party But Mr. Howes insisted that the ad. to bring a writ of error to the judgvertisement should pay the first premium ment entered thereon. “On July 26, in ful, and he refused to accept the 1872, the will of Eliza Wolbert was adpolicy on any other terms.

mitted to probate, and letters testamenThis case differs very widely from tary granted to the garnishee. In this those in which a delay in payment has will is the following bequest : been treated by the court as waived.

“ 'I give and bequeath and devise all All such cases proceed on the ground my property and estate of any kind, that a valid agreement to the terms of real and personal, and mixed, which I the contract has been made.

received from my father, to my execiiNotwithstanding the cautious manner tors absolutely and in fee simple, in in which the judge recited his view of trust, to pay the income thereof to my what had been given in evidence, and son John A. Wolbert, for and during luft the jury to believe it or not, we the term of his natural life, and that think there was no such evidence of the the same shall not in any way be liable existence of a valid contract as to sus for any past or future indebtedness of tain the verdict.

my said son; and upon his death, in The judgment of the circuit court is further trust, to transfer and convey reverserl, and the case remanded with the said property and estate to his directions to set aside the verdict and children then living, absolutely and in grant a new trial.

fee simple, in equal shares as tenants Opinion by Miller, J.

in common, so, however, that the issue

of any deceased child shall take among TRUST INCOME. NOT LIABLE them only such part or share as their

TO LEGAL PROCESS. deceased parent would have taken if SUPREME COURT OF PENNSYLVANIA. living, and should my said son John

die without leaving at his death any Bachman v. Wolbert, deft, and Wil

child, or issue of any deceased child of cox, garnishee.

his, then to my nieces Fanny Boyer Decided March 6, 1876.

and Mary Boyer, in equal shares as tenWhere a testatrix left property in trust ants in common during their respective

to pay the income thereof to her son for life

, directing the same shall lives, so long as they shall respectively not in any way be liable for any

remain unmarried, and upon the death past or future indebtedness of my or marriage of either of them, her said son," the income in the trustees' share to such person or persons as hands cannot be reached by an at- would be entitled thereto under the intachment execution.

testate laws of this commonwealth, had Error to the District Court of Phila- I died intestate.' delphia County.

“ The plaintiff issued an attachment

in execution on Angust 5, 1871, on a poration organized under the laws of judgment for $3993.38, which attach- that state, and had become insolvent. ment was served upon the said gar- The appellant, a citizen of the State of nishee simultaneously with another at- South Carolina, brought a suit in the taclinent in execution, issued upou a District Court for the Middle District judgment for $1425.00, in which John of Alabama, at that time exercising Bachnan was plaintiff. John A. Wol-circuit court powers, to wind up the bert was the detendant in cach of the bank under the provisions of the 21st said writs. Up to March 4, 1873, the section of its charter. Plaintiff alleged garnishee had received as income on and proved that he was the owner of said bequest the sum of $145.14 pay about $3,000 of the notes of the bank, able under the provisions of said will to on which he hal demanded payment John A. Wolbert. If the Court be of and been refused. The bank admitted opinion that the said writs of attach- its insolvency, and a receiver was apment bound the income of said trust pointed by consent to wind up its afestate, in the hands of the garnishee, fairs, and publication made for all credthen judgment for the plaintiff for itors to come in and prove their claims. $325.06, otherwise judgment for the The receiver made his report, which garnishee."

was referred to a master, who also reJudyinent was entered for the gar- ported. nislee, to which the plaintiff took this These reports, and several supplewrit of error.

mental reports, were

all confirmed Held, This is a clear case of an ac- without exceptions, and a final order of tive trust, to preserve the income of distribution macle among those who John A. Wolbert from the process of had proved their claims, allowing first his creditors.

the costs of the proceeding, including Judgment affirmed.

attorney's fees and other costs of suit. Per curiam opinion.

All of these were referred to a master,

who reported, and to whose report 10 PRACTICE. BILL OF REVIEW. exceptions were taken. APPEAL.

After all this was done, the appellant U. S. SUPREME COURT.

here and the plaintiff 1 elow appeared Harvey Terry applt, v. The Com- in person and filed numerous petitions mercial Bank of Alabama, respt.

and atlidavits signed by himself, asking Decided April, 1876.

to set aside the decree, excepting to the This court, upon un appeal from u

decree, excepting to the reports, and decree, cannot review i master's re

suggesting many other matters and port upon exceptionx jired after the things in which he sought to modify or decree, nor set aside u decree because correct the decrec. it was obtained by fraul. In such The foundation of all this seems to cuse the remedy is by bill of review. be the charge that his counsel deserted

Appeal from the Circuit Court of the his interest, failed to except to the reUnited States for the Southern District ports, and consented to the decree bieof Alabama.

cause they received what he called an The defendant, The Commercial exorbitant allowance for their services Bank of Alabama, was a banking cor- out of the fund which should have gone

to the creditors of the bank, thereby In 1872 the Legislature passed a law diminishing the amount of liis dividend. in and by which it was provided in the

Hi, If the appellant desired to first section “that defendants are anplace the case in a position where this thorized to audit and adjust the claim," court could review the action of the and in the second section it is provided court on the class of questions raised by " that they may cause to be levied and his petitions, affidavits and exceptions, collected upon the towns of G. and L. he shonld have filed his bill of review, such sums as shall be found necessary made the proper issues, and supported to pay the assessments allowed.” it by depositions. This court cannot The Board at their next annuai ses review upon appeal such matters, nor sion, did by resolution audit the acset aside a decree because it was ob- count of Mrs. C., but again failed to tained by frand.

levy the tax on the towns, &c. Decree affirmed.

This resolution of the Board also re. Opinion by Miller, J.

quires that Mrs. C- perform certain acts

on her part, is executing bond, &c. CONSTRUCTION OF STATUTE. The applt. procured a mandainus diMANDAMUS.

rected to said Board, compelling them 1. Y SUPREME COURT—GEN'L TERM. to cause to be levied, collected and paid

over to the relator, Sarah Conway, the FOURTH DEPT.

sum of $5,000 and interest, or show The People ex rel Conway, applt, v. cause to the contrary. The Board of Supervisors of Living

The applt. demurred to the return of ston county, rispt.

the mandamus, and such demurrer was Decided January, 1876.

overruled, and from the order overIn a statute directing the Board of ruling, applt

. appeals. Supervisors to aulit an account not

The return states that Mrs. C. las a legal charge on the county, the word mayis not to be construed not complied with the rezolution of the "shall."

Board, and that the work on the bridge It might be so construed in an act to was not well done.

enforce a right alrrady existing. J. C. Cochran for applt.

Plaintiff's husband constructed S. Ilubbard for respt. bridge over the Genesee river, between Ileli, That the object of the act of the towns of Genesee and Leicester, 1872 was to give the Board of Superin Livingston county. IIis account | visors a discretionary power, and not was $5,000.

tu impose upon them a positive duty. The county refused to pay the

That the act of 1872 was permissive, and so did the towns. There was some and not inandatory. Such statutes ire informality with the contracts, and it never construed as imposing a duty to was claimed that the work was not exercise the power conferred by them properly done.

unless the public interest requires it, or In December, 1866, the Board of a party before the court is entitled by Supervisors ordered such sim to be virtue of an antecedent right to have assessed on the towns of Leceister and the power exercised for his own benefit Genesse. But the Board failed to ex- The word “may” will not be construed tend the tax.

" shall” in order to create a right, but

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