both cases a thing which might have had the general and ordinary characteristics of property transferable by sale, and liable to creditors, is taken out of that broad category by the terms of the statutes, whose obvious purpose and aim require a restriction and limitation to which property in general is not subjected. This class of cases indicate that the question is not one of exemptions, but of the right of creditors to a particular fund, which fund, created by equity, should have the protection of equity. It does not therefore answer the view we have taken of the duty of the court in this case, to appeal to the general law of property, and the general duty of the court in respect thereto. The question concerns a species of property of a peculiar and specific character, created and existing for one purpose only, and whose express limitations take it out of the general rule.

The doctrine which I have here invoked, that a court of equity, when applied to for its active assistance in the enforcement of a claim founded upon a bare legal right, will refuse its aid, where granting it would work injustice, or impose conditions calculated to mitigate or remove the injustice, has been repeatedly asserted under the old law, which permitted the husband to reduce to his possession, and become the owner of, the wife's personal property. In such cases equity, not denying the legal right, has yet invariably limited and qualified it by recognizing and protecting the wife's equity, not only against the husband, but against his assignee or judgment creditor. In Smith v. Kane, 2 Paige, 303, the chancellor did not hesitate, where the wife's property was less than was needed for her support, to refuse relief entirely and dissolve the injunction. This class of cases is pertinent only upon the right of the court to withhold its aid where the legal claim, however valid, is wielded to effect a wrong. The equity of the husband in the present case to prevent a perversion of his allowance to an unlawful purpose is entirely clear. That of the wife to receive it under the decree for the specific purpose which led to its award I think also should prevail over the creditor's claim. During the marriage he had no right, legal or equitable, against her support furnished by the husband, and after its dissolution, without her fault, she ought not to be put in a worse condition. When to these equities are added the duty of the court to control and make effectual its own decree, and the public policy in which its provision is founded, it seems to me that no doubt is left as to the right of the court to dismiss the creditor and refuse him the relief he asks.

The judgment of the General Term should be affirmed with costs.

All concur.

Affirming 15 N. Y. Supp. 198.

MARRIAGE-INJURY TO WIFE-LOSS OF

WAGES.

NEW YORK COURT OF APPEALS, SECOND DIVISION,
JAN. 20, 1892.

BLAECHINSKA V. HOWARD MISSION & HOME FOR LIT-
TLE WANDerers..

Under the Laws of 1884, chapter 381, which declares that a
married woman may contract to the same extent as if
unmarried, whether such contracts relate to her separate
estate or not, but that this enlargement of her rights
shall not extend to any contract with her husband, a
woman who works in her husband's shop, and receives
regular wages, which she applies to the support of the
family, is not entitled to recover, in an action for per-
sonal injuries, damages for loss of wages, because not

withstanding the statute, her services still belong to her husband, and must be recovered by him in a separate action in his own name.

Horace H. Chittenden, for appellant.

Ezekiel Fixman, for respondent.

VANN, J. Upon the trial of this action the plaintiff testified that, at the time she was injured, she was living with her husband, a custom tailor, for whom she worked as a seamstress. She was then asked by her counsel: "Were you in receipt of a salary from him?" and under objection answered: "Yes, I received a salary of $5 and $6 a week, and I did all the housework, and now I can't do it and I must have help. I used to do very good tailoring, but I can't do it now." On her cross-examination she testified that she used the money thus earned by her for the children and the general support of the family. It did not appear that she had any separate estate or business. The court charged the jury that the plaintiff, if she could recover at all, was entitled "to recover for the loss of wages which she has sustained." The exceptions taken by the defendant to these rulings present the only question that we are asked to decide on this appeal.

The learned General Term affirmed the judgment of the Circuit on the ground that the money which the plaintiff had been accustomed to receive from her husband for services rendered outside of her household duties was her own property, and that the loss of the salary could be given in evidence as an element of damage, the same as if she had been working for a stranger. The only cases cited in support of this conclusion are Brooks v. Schwerin, 54 N. Y. 343, and Reynolds v. Robinson, 64 id. 589. The Enabling Act of 1860 (Laws 1860, chap. 90, as amended by Laws 1862, chap. 172), makes separate property out of that which a married woman "acquires by her trade, business, labor or services, carried on or performed on her sole and separate account." As the husband is entitled to the services of his wife at common law, it has uniformly been held that the statute does not apply to labor performed by her for him in his household, even if it is of somewhat extraordinary character. Reynolds v. Robinson, 64 N. Y. 589; Coleman v. Burr, 93 id. 17. But the husband's right to the services of his wife is not limited to those performed for him in his house, for when she works for him out of doors upon his farm she is entitled to no pecuniary compensation, and his written promise to pay her therefor is without consideration. Whitaker v. Whitaker, 52 N. Y. 368, 371. When she works with her husband for another, and their joint earnings are used to support the family, if there is no special contract that she is to receive the avails of her labor, they belong to him and he is entitled to recover their value. Birkbeck v. Ackroyd, 74 N. Y. 356; 11 Hun, 365; Beau v. Kiah, 4 id. 171.

Until recently the power of a married woman to make general contracts, not relating to labor to be "performed on her sole and separate account," depended upon the act of 1860, and the possession of a separate estate, or engagement in a separate business, was essential to their validity, although she might become liable through her representations by estoppel. Linderman v. Farquharson, 101 N. Y. 434; Frecklin v. Rolland, 53 id. 422; Insurance Co. v. Babcock, 42 id. 613; Bodine v. Killeen, 53 id. 93. In 1884 her powers were amplified so that she may now enter into contracts to the same extent, with like effect and in the same form as if unmarried, whether such contracts relate to her separate estate or not, but this enlargement of her rights does not extend to any contract between herself and her husbaud. Laws 1884, chap. 381. She has fur

INSURANCE-LIFE-INSURANCE IN FAVOR
OF WIFE-DEATH OF INSURED THROUGH
CRIME OF WIFE-RESULTING TRUST IN
FAVOR OF INSURED'S ESTATE-ACTION
BY EXECUTORS.

ENGLISH COURT OF APPEAL.*

CLEAVER V. MUTUAL RESERVE FUND LIFE ASSOCIA

TION.

The executors of a person who has effected an insurance on his life for the benefit of his wife can maintain an action on the policy notwithstanding the fact that the death of the insured was caused by the felonious act of the wife. The trust created by the policy in favor of the wife vnder the Married Women's Property Act, 1882, section 11, having become incapable of being performed by reason of her crime, the insurance money forms part of the estate of the insured; and as between his legal representatives and the insurers no question of public policy arises to afford a defense to the action.

THE facts as alleged by the pleadings were as follows:

brick effected an insurance on his life with the defendants for £2,000, in favor of his wife, Florence Elizabeth May brick. The policy stated, that for the considerations therein mentioned, the Mutual Reserve Fund Life Association received James Maybrick as a member of the said association, and that there should be payable to Florence E. Maybrick, his wife, if living at the time of the death of the said member, otherwise to the legal representatives of such member, the sum of £2,000, within ninety days after receipt of satisfactory evidence to the association of the death of the said member. James Maybrick died on May 11, 1889. By his will he appointed Thomas Maybrick and Michael Maybrick his executors. On August 1, 1889, Florence E. Maybrick assigned by deed to the plaintiff Cleaver the said policy and all her interest thereunder, and notice of such assignment was duly given to the defendants before the action. On August 30, 1889, Cleaver was duly appointed administrator of the property and effects of Florence E. May brick under 33 and 34 Victoria, chapter 23, section 9 (the Act to Abolish Forfeitures for Treason and Felony). The plaintiffs as such assignee or administrator and executors re spectively claimed payment of the insurance money.

By the statement of defense it was alleged that James Maybrick died from poison, intentionally administered to him by Florence E. Maybrick, and that she was, at the Assizes held at Liverpool on July 25, 1889, tried and convicted upon an indictment charging her with the willful murder of James Maybrick. The sentence of death passed upon Florence E. Maybrick was afterward commuted to penal servitude for life.

The question of law to be decided was whether, if it were proved that James Maybrick died from poison intentionally administered to him by Florence E. Maybrick, that would afford a defense to the action: (a) as against the plaintiff Cleaver as assignee of the policy from Florence E. Maybrick; (b) as against the plaintiff Cleaver as administrator under 33 and 34 Victoria, chapter 23, section 9; (c) as against the plaintiffs, Thomas Maybrick and Michael Maybrick, as executors of James Maybrick.

The Divisional Court (Denman and Wills, JJ.) gave judgment for the defendants.

Sir Charles Russell, Q. C., and Reginald J. Smith, for plaintiffs.

Sir E. Clark, S. G., and Hextall, for defendants. LORD ESHER, M. R. In this case the executors of the will of James Maybrick in that capacity sue the *1Q. B. [1892] 147.

defendants upon a policy of life insurance granted by them to the testator. James Maybrick is dead, and the defendants admit that during his life-time they granted him the policy; but they insist that they are not liable to pay the sum insured to his executors, because they would hold it in trust for the wife of James Maybrick, and his death was occasioned by the crimil act of his wife, that is to say, she murdered him. They say that it would be contrary to public policy that under such circumstances they should be compelled to pay this money to the plaintiffs, and therofore that public policy excuses them from that which would otherwise be the due fulfillment of their contract. No doubt there is a rule that if a contract be made contrary to public policy, or if the performance of a contract would be contrary to public policy, performance cannot be enforced either at law or in equity; but when people vouch that rule to excuse themselves from the performance of a contract, in respect of which they have received the full consideration, and when all that remains to be done under the contract is for them to Day money, the application of the rule ought to be narrowly watched, and ought not to be carried a step further than the protection of the public requires. This policy of insurance is in a somewhat peculiar form, which I suppose is of recent invention. It does not state on the face of it with whom it is made, but states that for the considerations therein mentioned the defendants make the insured a member, and promise that on his death the policy money shall be payable to Florence Maybrick, his wife, if then living, otherwise to his legal personal representatives. I will first consider what the legal effect of such a policy would be apart from the Married Women's Property Act, and if no such act had been passed. The contract is with the husband, and with nobody else. The wife is no party to it. Apart from the statute, the right to sue on such a contract would clearly pass to the legal personal representatives of the husband. The promise is one which could only take effect upon his death, and therefore it must be meant to be enforced by them. The condition on which the money is to become payable is the death of James May brick. There is no exception in case of his death by the crime of any other person, not even by the crime of the wife. Therefore the condition expressed by the policy, as that on which the money is to become payable, has been fulfilled. Consequently so far, and if no question of public policy came in, there would be no defense to an action against the defendants by the executors of James Maybrick. Apart from the statute, what would be the effect of making the money payable to the wife? It seems to me that as between the executors and the defendants it would have no effect. She is no party to the contract, and I do not think that the defendants could have any right to follow the money they were bound to pay and consider how executors might apply it. It does not seem to me that apart from the statute such a policy would create any trust in favor of the wife. James Maybrick might have altered the destination of the money at any time, and might have dealt with it by will or settlement. If he had done so the defendants could not have interfered. I think, that apart from the statute, no interest would have passed to the wife by reason merely of her being named in the policy; and if the husband wished any such interest to pass to her, he must have left the money to her by will or settled it upon her during his life, otherwise it would have passed to his executors or administrators. The question might arise how such a policy would have to be treated at law, apart from the statute. Supposing such a policy were made in favor of some person other than the person effecting the insurance, and not being any of the persons named in

any such appointment of a trustee, such policy shall, immediately on its being effected, vest in the insured and his legal representatives in trust for the purposes aforesaid." Under this provision, no trustee having been appointed, the policy vests in the executors who are trustees for the purposes of the trust in favor of the wife, but only as long as the object of the trust remains unperformed. When the object of the trust no longer remains unperformed, the policy is to form part of the estate of the insured. Suppose the wife had died before the husband, the defendants could not have said that they would not continue the policy or receive any more premiums, and that the policy was at an end. In that case the performance of the trust for the wife would have become impossible. I take it that the proper reading of the section is, that if the performance of the object of the trust has become impossible, it must be treated as if it had been performed; and therefore there would in such case be no object of the trust remaining unperformed. Applying the rule of public policy to this construction of the section, the wife here has by her crime rendered the trust in her favor incapable of performance. It must therefore be treated as if it did not exist; an

section 11 of the Married Women's Property Act- -as, for instance, a nephew or niece-aud supposing that the person in whose favor the policy had been made, or to or upon whom the insurance money had been left by will or settled, became the criminal cause of the death of the insured, it would then be necessary to consider, independently of the statute, what the effect of the policy would be, and whether the insurance company could vouch this doctrine of public policy as a defense to the action. That the person who commits murder, or any person claiming under him or her,should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy. But this doctrine ought not to be stretched beyond what is necessary for the protection of the public; and if the matter can be dealt with so that such person should not be benefited, I do not see any reason why the defendants in such a case should be allowed to say, though they might have received premiums perhaps for thirty years and still retained the same, that public policy forbade their paying the sum of money which they had contracted to pay. It seems to me that this question of public policy does not arise as between the executors and the defendants. The question arises at a later stage. When the money is in the hands of the executors, the ques-object that cannot be performed cannot, for the purtion arises how, under the circumstances, they must deal with it. If, in consequence of the death of the insured having been caused by the crime of a person in whose favor the policy is expressed to be made, or to or upon whom the policy money is left by will or settled, such person is not entitled to insist on its being paid to him, but he nevertheless claims the money from the executors, they may then vouch the doctrine of public policy, and may say that by reason of it such person has forfeited his or her right to the money. What would be the consequence of that? The executors cannot be entitled to keep the money themselves. It seems to follow as a necessary result that they would hold it as part of the estate of the testator. If the Married Women's Property Act had not been passed, or if the policy had made the money payable to some person other than the insured's wife or children, I should say, that on the true construction of the policy the only persons who could claim under it, and give a valid receipt for the money insured, were the executors of the insured; that as between them and the insurers the rule of public policy referred to could have no application, and therefore that the insurers must pay the money to the executors, and it would be for them to deal with it subject to the rules of public policy; but the insurers would have nothing to do with the application of the money after they had paid it. That would be a matter entirely between the executors and any person claiming the money under any will or settlement made by the insured.

But this case must be considered further with reference to the Married Women's Property Act, 1882. Section 11 of that act provides that a policy of insurance effected by any man on his own life, and expressed to be for the benefit of his wife or of his children, or of his wife and children, or any of them, shall create a trust in favor of the objects therein named, and the moneys payable under such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured or be subject to his debts. Therefore it is not provided that such moneys shall never form part of the insured's estate, but only that they shall not form part of his estate so long as any object of the trust remains unperformed. gives rise to the necessary implication, that when no object of the trust remains unperformed, the money is to form part of his estate. Then is is provided that "the insured may, by the policy or any memorandum under his hand, appoint a trustee or trustees of the moneys payable under the policy, and in default of

That

poses of the section, be said to remain unperformed. Then by necessary implication, according to the section, the policy forms part of the insured's estate. As I have said, the rule of public policy is not to be carried further than is necessary to insure its object. On this construction of the section, it is unnecessary, under these circumstances, to vouch the rule as between the executors and the defendants. The defendants must pay the money to the executors, and then it will be for the executors to deal with it according to their duty as executors. They would be trustees of it for the wife if she had not forfeited it; but her interest being forfeited, it forms part of the insured's estate. If there are creditors it will go to them so far as may be necessary to satisfy their claims. If any thing is left, it will go to the children of the insured, if there are any. The rule of public policy in such a case prevents the person guilty of the death of the insured, or any person claiming through such person, from taking the money; but the children would not claim through the mother, but through the father. What is there against public policy in such a result? I think that if the court were to deprive the children of the insured, who do not claim through the mother, of the insurance money under such circumstances, on the ground of public policy, it would be a gross injustice. Any one claiming through the wife is shut out by the rule of public policy; so that any assignee from her, or other person claiming through her, cannot recover the money; but the rule of public policy does not apply as between the executors representing the estate of the insured and the defendants, and therefore their rights and liabilities must be governed by the contract. That contract does not make any exception in the case of the death of the insured being caused by the crime of any other person. Consequently I think that the suggested defense fails so far as the executors of the insured are concerned. So far as regards the assignee claiming through the wife, he has no title, and has not made out his claim.

For these reasons, I think that the decision of the Divisional Court was wrong, and that the appeal should be allowed.

ative by the Divisional Court, and the judgment has been maintained before us by the same line of argument as was adopted by the court, which is shortly as follows: The executors of James Maybrick, it is said, are suing as trustees for Florence, and can have no better title than their cestui que trust; it is against public policy to allow a criminal to claim any benefit by virtue of his crime; she is therefore disentitled to claim the proceeds of the policy in question, and the executors, who are her trustees, are equally disentitled. This line of argument appears to me equally untenable whether there be or be not such a principle of public policy as that stated. If there be not, there is no objection to the action; if there be, it disqualifies Florence May brick from asserting that she is the cestui que trust of the executors, and negatives the proposition that the plaintiffs are suing for her benefit. They may be suing for their own benefit or for the benefit of the estate of the deceased or of some other person; but if the principle be valid they cannot possibly be suing for her benefit.

These observations are to my mind sufficient to dispose of the case; but considering its importance and the fullness with which it has been argued, I shall descend somewhat more on detail. The principle of public policy invoked is in my opinion rightly asserted. It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud, it seems impossible to suppose that it can arise from felony or misdemeanor. It may be that there is no authority directly asserting the existence of the principle; but the decision of the House of Lords in Fauntleroy's Case, 4 Bli. (N. S.) 194, appears to proceed on this principle, and to be a particular illustration of it. This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion. In Fauntleroy's Case it was held to prevent the assignees of a forger from claiming the benefit of a policy on his death at the hands of justice by reason of his forgery. It would equally apply, it appears to me, to the case of a cestui que trust asserting a right as such by reason of the murder of the prior tenant for life or of the assured in a policy; and it must be so far regarded in the construction of acts of Parliament that general words which might include cases obnoxious to this principle must be read and construed as subject to it.

James Maybrick insured his life in the policy in question in the year 1888, and by the proposal which was made part of the policy he expressed the policy to be effected for the benefit of his wife, and in the policy itself she is named as the payee of the policy moneys in the event, which happened, of her surviving her husband. Independently of the Married Women's Property Act, 1882, the effect of this transaction was, in my opinion, to create a contract by the defendants with James Maybrick that the defendants would, in the event which has occurred, pay Florence May brick the £2,000 assured; it would be broken by non-payment to her; but the cause of action resulting from such breach would vest in the executors of the assured, and not in the payee. She was, independently of the statute, a stranger to the contract; it might have been put an end to by the contracting parties without her consent, and the breach of it would have given her no cause of action against any one.

The 11th section of the Married Women's Property Act, 1882, deals with policies like the present, effected for the express benefit of a wife, and amongst other things, contains these alternative provisions. It enables the insured to appoint a trustee or trustees of the

It

moneys payable under the policy; in default of such appointment, it provides that the policy shall vest in the assured and his legal personal representatives. is impossible to consider the insertion of the name of Florence Maybrick in the policy as the nomination of her as trustee for herself; there is no nomination of any other trustee; consequently the statute applied, and in spite of her nomination as payee, vested the policy in James Maybrick and his legal personal representatives namely, the plaintiffs. The section in question goes further, and declares the trusts on which such a policy is to be held. According to its language, the effecting of this policy created a trust in favor of the object named- that is, Florence Maybrick-and the section enacted that the moneys payable under is should not, so long as any object of the trust remained unperformed, form part of the estate of the insured. Now the trust thus created by statute, and the language of the statute creating it, must, in my opinion, be both subject to the principle of public policy which I have stated-namely, the trust is one which cannot be enforced by a murderess of her husband, and the language of the statute must be read as if it contained an exception of such a case. Consequently the trust which the statute was intended to create has either never arisen or it has, by the act of the cestui que trust, become incapable of enforcement. If the executors of the insured were in such a case as the present to refuse to sue the office, it is inconceivable to me that the murderess could maintain a suit against them to enable her to use their names; or in fact that she could be allowed to sue in any way in a court of equity as cestui que trust of a fund which she had created by her crime. But if the executors are not trustees for Florence May brick, for whom are they trustees? This question seems to admit of an easy answer. Whenever there is property produced by the payments of A. which is held in trust for B., and that trust fails or is satisfied, a resulting trust arises for A. or his estate. This resulting trust is recognized by the section of the act in question, because it takes the property out of the estate of the insured so long as any object of the trust remains unperformed; language which implies, if it does not assert, that when no object of the trust remains to be performed the policy moneys form part of the estate of the insured. If it be suggested that this view only removes the difficulty a step further off, and that the possible right of the wife under her husband's will or intestacy forms an objection to the action by the executors, the reply is obvious-that the principle of public policy must be applied as often as any claim is made by the murderess, and will always form an effectual bar to any benefit which she may seek to acquire as the result of her crime. It follows from the view which I have expressed that I think it needless to inquire what the particular trusts may be on which the convict's property is held by the administrator appointed under the statute of 1870. He took only the property which Florence Maybrick had in the moneys in question, and as she took nothing, in my judgment, by reason of her crime, he takes nothing likewise.

It may be argued, that having regard to the fact that Mrs. Maybrick is the prime object of the insurance, and that she is named on the face of the policy as payee, the contract of insurance must be taken to imply an exception of the case of the death of the insured when caused by the crime of the person so named; and it is suggested that Fauntleroy's Case, 4 Bli. (N. S.) 194, in the House of Lords, supports this contention. argument does not appear to me to be tenable. policy is effected under, and therefore affected by, a statutory enactment, the effect of which in the present case is to vest the policy in the executors of the insured as trustees in the event of Mrs. Maybrick's being

This

The