that the defendant knew, or had any below, as administrator of Mr. Howes, Where the administrator of the deceased had received the policy but it was n t in reality delivered by the agent until after the death of the assured, and in ignorance of that event, no recovery can be had unless a valid contract of insurance existed between the insurer and insured, before the latter's death, and the policy delivered in pursuance thereof. In error to the Circuit Court of the United States for the Western District of Missouri. whose life it purported to insure, had received the policy, it was in reality not delivered until after the death of the assured, and in ignorance of that event. This is not disputed, but plaintiff below insisted that a contract of insurance had been made between Howes and the insurance company, before his death, which bound the company; and whether this was so or not is the principal question in the case. Another defense, however, was that the assured, having in his application, in answer to the questions propounded to him, stated, among other things, that his habits of life were correct and tem perate, and had ever been so, and that he had never habitually used ardent spirits to the extent of intemperance ; and in reply to the question, "Are you subject to, or have you had, dyspepsia, diarrhea, dysentery, disease of the heart, stomach, bowels, or any of the vital or gans ?" answered "no." The defendant alleges in his answer to the declaration that these answers were untrue. On this branch of the case the plaintiff in error claimed that the burden of proving the truth of these answers was on plaintiff below, and that if he failed to introduce satisfactory evidence on that subject he could not recover; but the court below ruled that defendant must prove their falsity. The number of questions in this application which require an answer are from thirty to fifty in every case. The court submitted to the jury the question whether, notwithstanding the policy was delivered to a friend of the deceased after his death by the agent 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 though plaintiff which made this d livery a duty, and, therefore, valid. And in doing this, not 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 onber, 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. Howes 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." not in 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 was cost of a year's advertisement should the city. But on that day, Howe'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. Howes ing of $70, and took from the same made his formal application, and the person a receipt in full for the $87.70 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 annual premium, to wit, $17.70, the whole premium being $87.70. A. Hufford, for J. F. Bell, agent, &c. Held, 1. That the burden of proving the answers to the questions to be false was upon the defendant. Neither Hufford nor Bell knew of Howe's condition at this time. Hufford "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 if 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 said Howes and demanded the cash part of said advance premium to wit, $17.70, but that said Howes did not pay the same, saying that the printing was to pay the first semi-annual premium on the policy; that he would write to Huff, the special agent of the company, with whom he had made the contract at Kansas City, about it; that after giving said Howes time to hear from said special agent, said Bell called again upon said Howes for the $17.70, but he did 2. There is no evidence to show that Howes and Huff, the first agent, ever came to any terms as to the amount of the premium, and but little to show that they agreed on the price of the advertisement. It is quite plain that when the policy was presented to Howes and the balance of $17.70 demanded, that the parties had not then come to an understanding of the pre cise terms of the contract. It amounted Attachment execution issued by to no more than this: that the company Bachman on a judgment execution should advertise in Howes' paper; that he should take a policy of the company for $5,000, and that the advertisement should go as payment on the first pre mium. But Mr. Howes insisted that the ad vertisement should pay the first premium in full, and he refused to accept the policy on any other terms. This case differs very widely from those in which a delay in payment has been treated by the court as waived. All such cases proceed on the ground that a valid agreement to the terms of the contract has been made. Notwithstanding the cautious manner in which the judge recited his view of what had been given in evidence, and left the jury to believe it or not, we think there was no such evidence of the existence of a valid contract as to sus tain the verdict. The judgment of the circuit court is reversed, and the case remanded with directions to set aside the verdict and grant a new trial. Opinion by Miller, J. TRUST INCOME. NOT LIABLE SUPREME COURT OF PENNSYLVANIA. against Wolbert, defendant, and Wilcox, garnishee. It was agreed that the following case stated should be submitted to the Court, with the right reserved to each party to bring a writ of error to the judgment entered thereon. "On July 26, 1872, the will of Eliza Wolbert was admitted to probate, and letters testamentary granted to the garnishee. In this will is the following bequest: "I give and bequeath and devise all my property and estate of any kind, real and personal, and mixed, which I received from my father, to my execu tors absolutely and in fee simple, in trust, to pay the income thereof to my son John A. Wolbert, for and during the term of his natural life, and that the same shall not in any way be liable for any past or future indebtedness of my said son; and upon his death, in further trust, to transfer and convey the said property and estate to his children then living, absolutely and in fee simple, in equal shares as tenants in common, so, however, that the issue of any deceased child shall take among them only such part or share as their deceased parent would have taken if living, and should my said son John Bachman v. Wolbert, deft, and Wil- die without leaving at his death any cox, garnishee. Decided March 6, 1876. Where a testatrix left property in trust to pay the income thereof to her son for life, directing "the same shall not in any way be liable for any past or future indebtedness of my said son," the income in the trustees' hands cannot be reached by an attachment execution. child, or issue of any deceased child of his, then to my nieces Fanny Boyer and Mary Boyer, in equal shares as tenants in common during their respective lives, so long as they shall respectively remain unmarried, and upon the death or marriage of either of them, her share to such person or persons as would be entitled thereto under the intestate 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 August 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 tachment in execution, issued upon a District Court for the Middle District judgment for $1425.06, in which John of Alabama, at that time exercising Bachman was plaintiff. John A. Wol- circuit court powers, to wind up the bert was the defendant in each 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 $445.14 pay-about $3,000 of the notes of the bank, able under the provisions of said will to on which he had 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 estate, in the hands of the garnishee, then judgment for the plaintiff for $328.06, otherwise judgment for the garnishee." pointed by consent to wind up its af fairs, and publication made for all creditors to come in and prove their claims. The receiver made his report, which was referred to a master, who also re Judgment was entered for the gar-ported. nishee, to which the plaintiff took this writ of error. Held, This is a clear case of an active trust, to preserve the income of John A. Wolbert from the process of his creditors. Judgment affirmed. Per curiam opinion. These reports, and several supplemental reports, were all confirmed. without exceptions, and a final order of distribution made among those who had proved their claims, allowing first the costs of the proceeding, including attorney's fees and other costs of suit. All of these were referred to a master, who reported, and to whose report no PRACTICE. BILL OF REVIEW. exceptions were taken. APPEAL. U. S. SUPREME COURT. Harvey Terry applt, v. The Commercial Bank of Alabama, respt. Decided April, 1876. This court, upon an appeal from a decree, cannot review a master's report upon exceptions fixed after the decree, nor set aside a decree because it was obtained by fraud. In such case the remedy is by bill of review. Appeal from the Circuit Court of the United States for the Southern District After all this was done, the appellant here and the plaintiff elow appeared in person and filed numerous petitions and affidavits signed by himself, asking to set aside the decree, excepting to the decree, excepting to the reports, and suggesting many other matters and things in which he sought to modify or correct the decree. The foundation of all this seems to be the charge that his counsel deserted his interest, failed to except to the reports, and consented to the decree because 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 of Alabama. to the creditors of the bank, thereby In 1872 the Legislature passed a law diminishing the amount of his dividend. in and by which it was provided in the Held, 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 should 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 review upon appeal such matters, nor set aside a decree because it was obtained by fraud. Decree affirmed. CONSTRUCTION OF STATUTE. N. Y SUPREME COURT-GEN'L TERM. The Board at their next annual ses sion, did by resolution audit the account of Mrs. C., but again failed to levy the tax on the towns, &c. This resolution of the Board also requires that Mrs. C- perform certain acts on her part, as executing bond, &c. The applt. procured a mandamus directed to said Board, compelling them to cause to be levied, collected and paid over to the relator, Sarah Conway, the sum of $5,000 and interest, or show The People ex rel Conway, applt, v.cause to the contrary. The Board of Supervisors of Livingston county, respt. Decided January, 1876. In a statute directing the Board of Supervisors to audit an account not a legal charge on the county, the word "may "is not to be construed "shall." It might be so construed in an act to enforce a right already existing. Plaintiff's husband constructed a bridge over the Genesee river, between the towns of Genesee and Leicester, in Livingston county. His account was $5,000. The county refused to pay the same, and so did the towns. There was some informality with the contracts, and it "was claimed that the work was not properly done. In December, 1866, the Board of Supervisors ordered such sun to be assessed on the towns of Leceister and Genesse. But the Board failed to extend the tax. The applt. demurred to the return of the mandamus, and such demurrer was overruled, and from the order overruling, applt. appeals. The return states that Mrs. C. has not complied with the resolution of the Board, and that the work on the bridge was not well done. J. C. Cochran for applt. Held, That the object of the act of 1872 was to give the Board of Supervisors a discretionary power, and not to impose upon them a positive duty. That the act of 1872 was permissive, and not mandatory. Such statutes are never construed as imposing a duty to exercise the power conferred by them unless the public interest requires it, or a party before the court is entitled by virtue of an antecedent right to have the power exercised for his own benefit The word "may" will not be construed "shall" in order to create a right, but |