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Central National Bank v. Hume.

The legislature in Pennsylvania, seeing that there might be uncertainty on this question, interposed within two years and passed one of the acts to which I have just referred, and they declare that a policy taken in the name and for the benefit of a married woman is free and clear from all claims of all creditors of her husband.

Two cases in Pennsylvania follow that in which that statute was recognized but in which they give effect to the obiter in Elliott's Appeal, and in speaking of it they adopt it as a true exposition of the doctrines laid down so far as the policies for the benefit of the wife are concerned.

In the case of Pentz v. Makepeace, 65 Ind. 345, the first clause of the syllabus reads:

"An insurance policy issued upon the life of a husband for the benefit of his wife is her property, and an effectual assignment and delivery thereof to another during the life-time of her husband can be made only by her."

And in the opinion they hold the following language: "If however it were conceded (which we do not concede) that the creditors of the assured might in any case institute and maintain an action for the recovery of any part of the amount of a policy of insurance procured by an insolvent debtor upon his own life, for the benefit of his wife or family, upon the ground that the premiums therefor were paid with money which ought to have been applied to the payment of the debts of the assured to such creditors, and that such payment of such premiums by the assured was a fraud upon the rights of such creditors, we are clearly of the opinion that the very utmost which the creditors could possibly recover in such action would be the aggregate amount of the premiums thus paid. The creditor could not in any event derive a profit from or recover on more than the sums of money actually paid by the debtor in premiums upon a policy of insurance upon his own life payable to or for the benefit of his wife or any member of his family."

And such appears to be the whole current, both judicial and legislative, on this subject.

We are disposed to apply that doctrine to this case. A considerable number of authorities were read upon the argument as to the sacredness of the claims of the creditors, and as to the injustice of depriving them of the benefit of the property of their debtors, and such observations were undoubtedly justified by the cases in which they were pronounced. In fact we are all very familiar with the

Central National Bank v. Hume.

general strength of language in which the relation is discussed which exists between the creditor and debtor. Many other relations however are equally important; the relations which a man bears to his wife and to his family for instance. We do not, I am very sorry to say, generally find the courts so emphatic in regard to the latter species of relations as to the former. Perhaps that results from the fact that courts are more generally engaged in adjudicating pecuniary rights than those of a social character. But the rights which result from the family relations are certainly quite equal to those which result from debtor and creditor. You might blot out every law and extinguish every right for the collection of debts and the community would scarcely feel the shock. But if you abrogated the law of marriage and its relations you would not only rupture the moral but also the physical organization of society. Where therefore the two claims come in conflict the courts should adjudicate between them with justice and fairness to both.

When a man has made provision for his wife the law recognizes that he has performed a social and moral duty. The State has a deep interest in having families of healthy children properly educated and settled in life as well as to have creditors paid what is due, and whatever will promote that object should receive its due share of attention.

These remarks are made more especially because we can distinguish here between the rights of the creditors and the rights of the family and do justice to both of them. What right have the creditors to what never belonged to the estate? What right have they to a vested right in a married woman for her protection and that of her family? What right have they to a species of property that never existed until after the death of the husband? We presume that no creditor of Thomas L. Hume would dare to stand up and make the statement that he had been misled by these policies or that he had extended credit to him on their strength.

So that it strikes the court very forcibly that where we can protect a settlement on a family, by giving back to the creditors all that has been taken from them, we are doing justice and equity to all, and the creditors have a right to demand no more.

There are some considerations which lead to and justify this conclusion. It appears that Mrs. Hume, at the time she became the wife of Mr. Hume, was the daughter of a man of considerable means Mr. Pickrell, owning an estate near the city; that she is an VOL. LI -99

Central National Bank v. Hume.

only child, and that after the marriage Mr. Hume and his family lived mostly at that estate, scot free, unless he contributed from his grocery establishment something to his support. In fact the whole family lived there as if he had been born into it. Mr. Pickrell, and after his death, Mrs. Pickrell and Mrs. Hume, placed in him the most unreserved confidence. Mr. Pickrell indorsed for him, and after his death, Mr. Hume became his administrator; whatever he collected out of the estate for the benefit of Mrs. Pick rell went into his business.

I know it is said that Mr. Hume was guilty of dishonesty, if not crime. But it is to be remembered that he was not a wasteful man, that he did not dissipate his time, that he appears to have been devoted to his business, and that if he took any thing, either from the estate of Mr. Pickrell or from anybody else, it was for the benefit of that business, and he did all he could to keep up the sinking ship.

Having these relations with the family, and having encroached somewhat, I will not say how extensively, upon the patrimony of the wife, I think without going very far we can find a proper motive that he had in effecting these insurances for his wife and family, and we do not think it is the duty of the court of equity to bring a microscope to examine his mind closely for some motive that would render these transactions void or fraudulent, when there is a motive so apparent on the face of it. The law recognizes the natural love and affection of a husband for his wife and family, and any settlements he makes upon them will be upheld, without any other consideration whatever, if they are free from fraud.

It is said that these insurances provided an unreasonable amount and exhibit clearly the recklessness with which the intestate disregarded the claims of his creditors. In this connection, we are also reminded that Mrs. Hume herself is a lady of fortune; that she is the heir of her father and her mother; that her mother has a life estate in the property, and that she will inherit the whole of it upon her death, and inventories have been read to show that this estate is one of very considerable value. Mrs. Hume has not obtained the estate yet, and perhaps that is a sufficient answer. Another is that its value is prospective, and what will be its value at the termination of the life estate is difficult to determine at present. In addition to all that, there are indorsements of Mr. Pickrell outstanding, and what may be the fate of those indorse

Central National Bank v. Hume.

ments it is impossible to conjecture. So that the matter is not in any way clear that Mrs. Hume will have a large estate independent of the policies. But suppose she has a moderate fortune of her own, one that would amply support her and her family by economy, is that any business of the creditors? What right have they to any portion of her separate estate to pay her husband's claims? The law says that they have none whatever. Considerations of that character should not weigh in the final adjudication of this case, if we give these creditors all they are entitled to.

It must be admitted that Thomas Hume at the time he effected the last three policies of insurance was hopelessly insolvent. We think that is a very doubtful fact with regard to the first policy which was taken out in 1873, and by looking over the schedules furnished by counsel, we should say that his insolvency is not established at an earlier date than 1874; and from that time onward to the point of his death, Mr. Hume was undoubtedly unable to meet the claims of his creditors, and that from that time he had no right in law to take from his means any property for the benefit of his family, as a settlement. But we can give the creditors every just right, every dollar they are entitled to, and give the widow and the children the benefit of the contract which was made for them; and we have no more right to transfer the proceeds of these policies to the creditors than we would have to take Mrs. Hume's interest in Tunlaw for the same purpose.

The money has been paid into court. The decree must be entered decreeing the money to Mrs. Hume, and charging her with the amount of all the premiums that were paid upon the three policies from February, 1874, which is the proper time to adopt as the period when Mr. Hume's insolvency clearly appears.

CASES

IN THE

SUPREME COURT

OF

OHIO.

DIETRICK V. NOEL.

(42 Ohio St. 18.)

Adverse possession — agreement not to sue.

Possession of land ceases to be adverse where the owner of the land, for a valuable consideration, agrees with the holder that suit for possession shall not be brought during the life-time of either.

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UIT to recover land. The defendant's grantor, Wallace, had threatened to close up an outlet, the right to use which was claimed by the plaintiff's grantor, Merritt. The opinion states the other facts. The plaintiff had judgment at the trial, which was reversed by the District Court.

O. F. Moore, J. W. Washburn and J. T. Moore, for plaintiff in

error.

G. A. Hutchings and George D. Cole, for defendant in error.

FOLLETT, J. Was there error in refusing to give the charge requested by Noel? If the agreement between Merritt and Wallace in any way did prevent the running of the statute of limitations in favor of Wallace, there was no error in the Court of Common Pleas, and there was error in the District Court. The written

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