The beneficiaries upon the execution of the policy acquire thereby an interest which the law recognizes and which the insured cannot dispose of at his own will. This interest is recognized by the authorities, and it is of little consequence whether it is called vested or contingent." Without presuming to reconcile the cases which attempt to define the interest of the beneficiary in a regular life policy, we would suggest that much of the difficulty would be removed if the origin of the doctrine be kept clearly in mind. As As already suggested, the only reason upon which an insurance policy can be held a valid contract is the interest of the beneficiary in the life of the insured, a contract of insurance, for instance, upon the life of the husband in favor of the wife, being in the nature of an irrevocable settlement or trust for the purpose of protecting her against pecuniary loss and damage by reason of his death in her lifetime. When we thus consider a policy of life insurance as more nearly resembling and partaking of the nature of a trust than a chose in action, we make easy the solution of many otherwise difficult problems, and effectuate more closely the intention of the parties.

Let us examine the authorities and carefully bear in mind the suggestions just offered. Take, for instance, the simple case of a wife, the beneficiary under a policy of insurance on the life of her husband, who predeceases the latter. Are her representatives or his representatives entitled to the proceeds? In other words, under a literal construction of the doctrine of vested interest, is her interest transmissible to her heirs, or, looking upon the proceeds of the policy as a trust fund, would her death within the lifetime of the husband be considered a termination of her interest in his life which alone sustained the policy in her, and, therefore, a failure of the trust with reversion in the husband. The authorities are in conflict, some holding to the formers and others to the latter construction. In Ryan v. Roth

weiler,10 the court said: "The theory of a failure of trust comes with more force and stronger reasons than the doctrine of choses in action. We regard the doctrine of choses as action as not fully applicable, because it conflicts in many cases with the controlling doctrine of insurable interest. The question is not as to change of beneficiary, but as to reverter of the policy to the assured by reason of the death of all the beneficiaries. On principle, and aside from any statute on the subject, we think that in this case the policy reverted to Mr. Helwig, and at his death became a part of his estate. It seems to us that this was the manifest intention and understanding of all parties interested, and that the result is just and equitable. While there may have been a vested interest it was an interest not in possession, but in expectancy, liable to be devested by the death of the beneficiary before the death of the assured." In the case of a policy on the life of the husband payable to the wife, if living, and if not living to her children, where the wife dies first, the authorities are again in conflict, some holding the policy payable exclusively to the children living at the death of the insured," while others hold that the policy vests at once in both wife and chil dren at the same time, and the interest of any deceased child is transmissible to his heirs. 12 In Hooker v. Sugg1a it was held that if "children" be designated in a life policy as beneficiaries, the interest vests at once in such as then meet the description, and is not devested in favor of survivors by a death afterwards. As already noted, New York and several other states reject this view and apply the class doctrine to such policies, so that under the rule there laid down only such children take as are alive at the death of the insured. We believe that the New York rule recognizes more clearly the evident purpose of life insurance and lays down the more equitable and reasonable construction.

10 50 Ohio St. 595.

11 United States Trust Co. v. Insurance Co., 115 N. Y. 115: Schneider v. Insurance Co., 33 Mo. App. 68:

Life insurance exists solely for the protection of those who would be pecuniarily damaged by the insured's death. To permit those who would not be so damaged to take under the policy would be to overturn the whole purpose and intent of such contracts. Indeed, the doctrine of vested interest, as applicable to insurance contracts, cannot be carried out logically and literally, the word "vested" having a legal significance too great and too extended to properly define the rights and interest of the beneficiary. Nothing more can be meant by the use of such words as applicable to life insurance, than that the beneficiary named in the policy has such an interest in the policy that prevents the insured from interfering in any manner with her right to take under the policy, or to demand the proceeds upon the happening of all contingencies and upon compliance with all the conditions contained therein.

13

It has been suggested that the doctrine of vested interest cannot be applied to accident insurance. In Hoffman v. Indemnity Co.,13 a the court held that the beneficiary in an accident policy, until the death of the insured, has, at most, an inchoate and contingent interest, and the insured cannot recognize her as a party to the contract having a present interest therein. This case did not squarely decide the question that the interest of the beneficiary was materially different from that of the beneficiary under a regular life policy, but clearly shows how illogical would be a literal application of the rule of vested interest to the right of a beneficiary, where that right, under the terms of the policy, is the most inchoate and contingent that can be imagined. In the case just referred to, a condition in an accident policy required the beneficiary to give notice of the death of the insured within ten days of the happening of the accident causing it. Such a condition was held to be impossible, on the ground that the beneficiary acquired no definite interest in the policy

was that a statute of Pennsylvania declaring that in all controversies relating to "life and fire insurance policies," neither the constitution nor by-laws, etc., of the company should be received in evidence, does not include policies of insurance against bodily accident. The court said: "The suggestion that the act includes policies of insurance against bodily accidents seems to us to be quite inadmissible. The instrument sued on here is strictly an accident insurance policy. The primary purpose is to secure a weekly indemnity in money to the insured in the event of his disability from accidental injury. In certain specified contingencies, resulting from accidental injury, a specified gross sum is to be paid. One of the latter is, death resulting from the accident within ninety days thereafter. But this contingent provision does not make the instrument a life insurance policy, either in a popular or in a legal sense.' These are the only two cases that have come within the knowledge of the writer suggesting that accident policies, with provisions for death benefits, were to be distinguished in any material manner from regular life policies. The question seems to be as yet an open one whether the beneficiary, under such a policy, acquires a vested interest or not. We apprehend that, giving the word the limited significance already suggested, i. e., the absolute, irrevocable right to demand the proceeds of the policy on the happening of all contingencies and compliance with all conditions, there is no material distinction to be made between such policies and regular life insurance. But if by vested interest is meant any absolute present right or interest in the proceeds of the policy (which we believe in any case to be an unwarranted extension of the right of the beneficiary), then its application is, on the face of things, an absurdity.

Endowment policies have also been suggested as being without the rule of vested interest. But for the same reason we have

15

an endowment policy as in a regular life policy, and the insured can no more interfere with this right in the one case than in the other. Of course, the enjoyment of the proceeds is contingent upoh the insured dying within the endowment period, and the beneficiary cannot be said to have any present interest, other than the mere right to demand the proceeds of the policy, upon the happening of all contingencies and compliance with all the conditions of the policy, which is the same right held by any other beneficiary in any other kind of policy.

The difficulties of this question are increased when it becomes complicated with questions of survivorship. Suppose the insured and the beneficiary perish in a common disaster, and it is impossible to find, as a fact, from the evidence, which of them died first,in such a case in whom does the right to the proceeds exist? The modern rule as to survivorship in a common disaster is well stated and thoroughly discussed in the case of Newell v. Nichols.17 The rule may be summarized as follows: There are no presump. tions in law of survivorship in case of persons who perish by a common disaster, but one who claims through a survivorship must prove the survivorship. In the absence of other evidence, the fact is assumed to be unascertainable, and the property rights are disposed of as if death occurred at the same time, not because of a presumption of simultaneous death, but because there is no evidence or presumption to the contrary. In applying this rule to the distribution of the proceeds of a policy of insurance, the doctrine of vested interest becomes an obstacle of grave importance. Of course, if the policy is payable to the wife "and her legal representatives," the interest of the wife is, in such case, transmissible, and the question of vested in. terest presents little difficulty. But where the policy is payable simply to the beneficiary on the death of the insured, or "if surviving," or on any other condition, the question

observed under other aspects of this question. Giving the word "vested" its full logical meaning, the beneficiary would have such a present interest in the proceeds of the policy, while living, that even where the enjoyment of the fund is conditioned on her survivorship, such condition, or, in fact, any other condition annexed to her right to take under the policy, would be a condition subsequent, and the burden of proving survivorship would be, not on the beneficiary or her representatives, but upon those who would seek to controvert her prima facie title to the proceeds of the policy.18 But, on the other hand, applying the trust fund doctrine and giving to the words "vested interest" the limited meaning already suggested, the beneficiary would acquire no present interest in the proceeds until the death of the insured, and the distribution of the fund would then be governed by the ordinary rules of construction, and the beneficiary could take nothing until all contingencies and conditions of the policy had happened or been complied with, the burden of proof in such case resting upon her or her representatives. 19 In the case of Cowman v. Rogers20 the regulations of a beneficial association provided that, if the beneficiary named in the certificate should die in the lifetime of the member, and if the latter should make no other disposition of the benefit, it should be paid to the member's widow, if no widow then to the children; if no widow or children, then to his relatives, naming them. The certificate in this case was made payable, upon the member's death, to his wife. The member, together with his wife and children, perished in the Johnstown flood. Held, that there was no presumption of survivorship, and in the absence of competent and sufficient evidence to show that the wife, the nominated beneficiary, died before her husband, her legal representative was entitled to the fund. As a logical application of the doctrine of vested interest no criticism can be found with this decision,

questions. The husband in this case procured the policy for the benefit and protection of his wife and children after his death, and for this purpose alone he faithfully kept up the payment of the premiums thereon. It is no stretch of the imagination to say that it certainly was not his intention that this entire fund should, under any circumstances, become the property of distant relatives of his wife, who had no interest whatever in his life. It is more natural to suppose that in such case he would prefer his own estate or his own relatives as the beneficiaries of the fund. That the intention of the insured is material in these cases has been decided on good authority.21 But apart from any question of intention, the application of the trust fund doctrine easily disposes of the whole question. Under this view of the case, the beneficiary is regarded as the cestui que trust, and the insurance company as the trustee of the fund represented by the policy, of which the insured may be regarded as the grantor. The fund is to be paid over to the beneficiary, or cestui que trust, on the happening of all contingencies and compliance with all conditions named in the policy. The insurance company, as trustee, can certainly not be compelled to execute the trust until all contingencies have happened and all conditions complied with, and the burden is upon the beneficiary, or her representatives, as against the insurance company, to prove that all contingencies have happened and all conditions have been complied with, before any title to the fund vests in her; and unless her right to the fund is so proven there is a failure of the trust and reversion of the fund to the insured or his representatives. Where the policy provides that the beneficiary shall take, "if surviving," no difficulty should arise in any view of the case, as, in such case, survivorship is clearly a condition precedent to the enjoyment of the fund, and upon the representatives of the beneficiary must be the burden of proving survivorship before they are entitled to take anything under the policy.

children were lost at sea, and there was no direct evidence as to which survived the other. The court held that the interest of the wife in the policy was contingent on her surviving her husband, and that the burden of proof was on her next of kin to show that she survived. The court said: "He (the insured) was providing for the disposition of a fund, which was not to exist until after his death, and he made the provision by designating the persons to whom it was to be paid, and his obvious intention was that it should be paid to his wife, if she should survive to take it, and to their children if she should not survive. We think,

upon the view of the contract already taken, that the wife had no interest, transmissible to her next of kin unless she survived her husband, and that they cannot maintain their claim without proof that she survived him."

We have taken but a general view of this question, and have earnestly sought for right principles rather than to attempt to harmonize the conflicting opinions of the courts in the decision of individual cases. Courts, in their zeal to protect the wife and children, have undoubtedly been led into the use of words in defining the interest of such parties as beneficiaries of insurance, which do not properly limit their rights under the policy, and which in many cases, could not be literally enforced without doing violence to all principles of life insurance and arriving at results that could not be other than inequitable. The great purpose of such contracts in making provision for the protection of those interested in the life of the insured, against pecuniary loss by reason of his death in their lifetime, should be kept constantly in view, and the assertion of no legal quibbles or technicalities should be permitted to defeat the clear intention of the insured under a reasonable construction of the plain terms of the contract.

St. Louis, Mo.

ALEXANDER H. ROBBINS.

Civ. St. art. 256, but the court inquired of an attorney if he could act on the committee on the evening of a cer tain day, and the attorney answered that he could not be present at a night examination, but was placed on the committee, the judge stating that he should be excused if he could not attend. Held, that the attor ney was not guilty of contempt in failing to appear at such time, since the order, though considered in connection with the oral statement of the court, was ncomplete and invalid; and where the attorney is arrested and brought into court under a judgment and attachment for contempt in failing to appear at such examination, he is not guilty of contempt in refusing to continue the examination as then directed by the court, since his presence was obtained by an illegal arrest, and he had the right to refuse to serve while under such duress.

DAVIDSON, P. J.: This is an original application for the writ of habeas corpus. Relator was appointed one of five attorneys to examine an applicant for admission to practice law. The order appointing this committee was entered on March 16th. The order failed to designate any time when the examination should occur. On the 16th of March, relator being in the court room, the presiding judge asked him if he could serve upon the committee, and was informed, if it did not occur at night, he could do so, but if at night it would be impossible for him to attend by reason of the fact that he lived remote from the court house, and could not leave his wife alone at night. The district clerk states the judge then informed relator that he would appoint him anyway, and if he could attend to do so, and, if not, "of course I will excuse you." On the night of the 20th of March, all of the committee failed to attend except Hon. Cone Johnson. The judge fined the absent attorneys $25 each, and ordered the clerk to issue attachment. These orders were not entered of record, but the attachment was issued, and the next morning was served upon relator, Duncan, in his office by two deputy sheriffs, who immediately escorted him to the court room, where he took a seat in front of the judge's stand. A few minutes afterwards Judge Russell, the district judge, took the bench and said. "Gentlemen, proceed with the examination." Relator arose and said, "I decline to serve on this committee." The judge replied, “Judge Duncan, I cannot excuse you;" to which relator replied: "I cannot help that. I will not serve. I told the court at the time of my appointment that I could not serve on an examination committee to meet at night. and gave the court my reasons for it. Now, I have been arrested at my office this morning, and brought over here under arrest by officers, under the order of this court, for failing to be present last night. I have always treated this court as a gentleman, and I expect to be treated or must be treated by the court as a gentleman, if not as a member of the bar." The court replied, "I will not sit here and allow you to reprimand the court, and I will fine you if you do not desist from it." "I then took my seat, saying. Well, if you fine me, and I

have the money to pay the fine, I can pay it; if not, I will have to go to jail." The court then said. "Mr. Clerk, enter a fine of $50 against Judge Duncan for contempt of court." It is shown by the evidence that it has never been the practice at that court, or in that district, for the judge to compel members of the bar to serve on such examining committees, and never before, in the knowledge of witnesses, was a fine assessed against, or an attachment issued for, a member of such committee who failed to attend; that the custom was either to postpone on account of the absence of one or more of the committee, or proceed with the examination by the appointment of other members of the bar. Relator further states that he had no intimation in any way from the judge at any time, after stating his reasons for not being able to attend the meeting of the committee at night, that he would still be expected to attend or be fined or attached; and that he had no notice or knowledge, or any reason to suspect, until the morning of the 21st, that he was fined, or was to be fined or arrested, and that the facts recited in the judgment of contempt rendered against him were placed there without his knowledge, and that he had no opportunity to see that the facts were correctly stated in the judgment; that it was wholly ex parte, and was prepared entirely under the direction of the trial judge.

This case involves and turns upon the question of jurisdiction. If the jurisdiction of the court properly attached to the person of the relator and the subject-matter of the contempt, and the facts showed contempt, then this writ should be refused, and the relator remanded. Article 256. Rev. Civ. St., provides: "During the term of the district court upon application in writing of any person desiring to obtain a permanent license to practice as an attorney and counselor at law in the courts of this state, the court shall, as soon as convenient, appoint a committee of three or more practicing attorneys of good standing, and set a day for the examination of the applicant, on which day the committee so appointed shall in open court proceed to examine the applicant: and if they or a majority of them and the court are satisfied of his legal qualification, a report of that fact shall be made." The district courts of this state being courts of record, every order made by such court must be entered of record. Upon the presentation of the application, it becomes the duty of the court to appoint a committee, naming them; and this appointment, together with the day appointed, must appear from the records to have been made as any other judicial order must so appear. Until this has been done, and the members of such committee have been notified, the court has no power to compel any member of the committee to proceed with the examination of such applicant. The question then presented is, did the court have the power to issue the attachment to compel the appearance of the relator? If it did, it must be held relator