upon trust for the benefit of the wife and her issue.(k) Until a bill is filed, however, payment either with or without the assent of the wife will, in all cases, be properly made to the husband, and his receipt will be a good discharge.(1) By the Scotch law a married woman is not entitled to any equity to a settlement; and this holds good, although the property is in England, if the domicile is in Scotland.(m) Upon the death of the wife in the lifetime of the husband, he will be entitled to obtain administration of her effects, and in the capacity of her administrator becomes the absolute owner of the policy and the amount assured, whether it has been effected upon her own life or the life of another, together with all her other choses in action. Should she happen to outlive him, the property in the policies will survive to her, discharged from all claim on the part of her husband's representatives, or any lien or charge made by him; and that although such lien' or charge may have been made by assignment, at a time when the money might have been reduced into possession, being payable, but not having been so during his life, it equally survives to the *wife.(n) His representatives, however, may be entitled to a lien upon the policies for any pre[*301] miums paid by him out of his own funds, and without the intention of making a present of the money to his wife. 3. Questions respecting policies of assurance to which married women are entitled, more often arise in cases in which the insurance is effected during the coverture upon the life and in the name of the wife. We have seen that a husband, as such, has no insurable interest in the life of his wife. But there seems to be no reason why a husband may not effect an insurance upon the life of his wife, or on his own life in her name, in order to give her the benefit of the policy. In such a case, the policy would be in the nature of a voluntary settlement by the husband upon her, to which she would become absolutely entitled upon surviving him, and the benefit of which, even upon her death in his lifetime, would pass by her will when made with his assent. (o) If the insurance is effected by the wife without the intervention of the husband, and paid for out of his money, he will, doubtless, be entitled to dissent from and avoid the contract. If, however, he does not do this immediately that he becomes cognisant of it, it is submitted that she will be assumed to have acted under an authority from him, and the policy will be her chose in action. If a mar Here, however, a somewhat nice distinction is to be noted. ried woman lend the money of her husband, it is still his money, and he can sue for it in his own right;(p) but if, in exchange for that money, she becomes owner of a chose in action, the legal incidents of a chose in action attach, she must be joined in an action if the policy becomes a claim, and on her death he can only become entitled as her representa (k) Carter v. Taggart, 1 De Gex, Mac. & G. 212. (0) Sugden's Real Prop. Stats., 307. tive. In the words of the judgment in a very late case, where a married woman had *purchased railway stock: "It is a settled rule that [*302] a married woman, although incapable of making a contract, is capable of having a chose in action conferred upon her; which, on the death of her husband, will survive to her, unless he shall have reduced it into possession by some act of his own."(2) 4. When, moreover, a married woman is entitled to property settled for her separate use, she may effect an insurance, and pay the premiums out of the income of her separate property; and, in such a case, according to the rule, that "the sprout is to savour of the root, and go the same way," she will be also entitled to the policy as part of her separate estate; (r) and such property she may convey by deed, or bequeath by her will,(s) in either case without the concurrence of her husband. Should she, however, omit to deal with her separate property, her husband will be entitled thereto as her administrator, as well as to that which is subject to no trust for her separate use. And when no valid trust is created for valuable consideration, but an allowance is made by the husband to his wife, as upon a parol agreement for a separation, he will be entitled to the produce of her savings not disposed of for valuable consideration, and so as to defeat a voluntary transfer and gift made by her to a third party.(t) Where a married woman, as a volunteer, paid the premiums upon a policy upon the life of her husband, settled by him at her marriage out of the income of a fund settled to her separate use by the same settlement, she was, under the circumstances, held to be entitled to a lien upon the proceeds of the policy for the amounts paid by her.(u) But had she allowed her husband to receive the income, *and he had [*303] so applied it, she would not have been entitled to any lien; such an arrangement, while it lasted, would operate as a gift of the income to her husband.(v) 5. Where a policy is effected by a married woman upon her own life, and is intended to form part of her separate property, it would seem that it should be granted to a trustee for her, and that the trust should be expressed upon the policy, to avoid the operation of the second section of the 14 Geo. 3, c. 48. In the case of Collett v. Morrison,(w) E. C. was living apart from her husband, with an allowance from him for her separate maintenance: and a proposal for an insurance upon her life was made on the 9th of September, 1844, to the Britannia Life Office. The proposal was signed by W. J. R., and the answer to the first inquiry therein, namely, "Name, residence, and description of the party proposing the assurance," was in the following terms: "Mrs. E. C., of, &c., by her trustee, W. J. R., of, &c." The usual inquiries having been made, the proposal was accepted by the directors on the 16th of September, and on the 19th W. J. R. called at the office, and paid the first (9) Dalton v. The Midland Railway Company, 17 Jur. 719. C. B. (w) 9 Hare, 162. year's premium and stamp duty upon the proposed policy; but, at the same time, a question having been raised by one of the officers of the company as to the propriety of any trust being recognised by the company, a fresh proposal was filled up by W. J. R., purporting to be made by him on his own account; the answer to the first question being simply "W. J. R., of, &c., Esq." This second proposal was not submitted to the board of directors, and the policy was shortly afterwards issued in the usual form when effected by one party on the life of another; but when issued, it was sent from the office of the company to E. C. In June, 1845, she died, and W. J. R. set up a claim to the policy for his own benefit, which was resisted by the company upon the plea that he had no insurable interest in the life of E. C., and *that the policy was void for fraud and misrepresentation. Administration to the [*304] estate of E. C. was granted to the plaintiff, who thereupon filed his bill against the company and W. J. R. to compel payment of the amount assured to himself as administrator. On the one side it was contended that the original proposal was the only contract binding upon the parties, and that which the company was bound to carry out, and that it in no way contravened any statutory provision relating to policies of assurance; and the bill prayed that the insurance should be treated in equity as an insurance effected by E. C. through W. J. R. as her trustee, and that the plaintiff should be entitled to have the policy rectified accordingly. On the other hand it was stated that the company had dealt with W. J. R. as contracting upon his own behalf, and that the fresh proposal had been filled up so soon as the original form recognising the trust had been observed; that the first proposal had been laid before the directors merely to consider whether the life was one which the company would accept, and not with reference to any other details in the proposal; that the policy was a proper policy for the only proposal which had been accepted;namely, one to insure W. J. R. against the death of E. C.; and that every such policy presumed an interest, and was rendered void by the want of it. Sir G. Turner, V. C., considered that if authority were wanted upon the point, the case of Motteux v. The London Assurance Company,(x) fully established, that if there be an agreement for a policy in a particular form, and the policy be drawn up by the office in a different form, varying the right of the assured, a Court of Equity will interfere and deal with the case upon the footing of the agreement, and not of the policy. That although it was said on the part of the company that there was no agreement to grant the policy to W. J. R., in trust for E. C., he could not impute to the directors that they overlooked the form of the original proposal, and that it was the duty of the officers of the company to act upon any proposal approved by the directors, if [305] it could be in any way carried out. That the original proposal must be held to have been accepted wholly, and not in part, and not having been cancelled, but annexed to the second proposal, which was not even submitted to the directors, by whom, and not by the officers, any contract (x) 1 Atk. 545. binding upon the company must be made, remained in force at the time at which the policy was issued. "At these conclusions," said the ViceChancellor, "I arrive, the more readily from its appearing by the fourth condition endorsed upon the policy, that it was contemplated that policies might be issued which were subject to trusts at the time of being granted. (y) It may be said, indeed, that, taking the rules and regulations of the company, and the provisions of the statute together, the agreement made upon the first proposal could not, by any means, have been carried out; but, independently of what I have observed as to policies in trust being contemplated, I think that the company, having had the chance of the agreement turning out in their favour, cannot be permitted to escape from it, now that it has turned out against them. With reference to the questions raised by the statute, I do not think it necessary to enter into them. If the statute had prohibited any policy being granted to one person in trust for another where both names appeared upon the face of the policy, or if the effecting such an insurance had, in any manner, contravened the policy of the statute, I might have felt myself bound to abstain from interference; but I am of opinion that the statate has no such operation, and is directed to a wholly different object." *6. An unmarried woman or feme sole can of course dispose [*306] of or bind her interest in a chose in action of any description, and that although she may have entered into an engagement to marry, if the disposition be made with the intended husband's consent, as by a marriage settlement to which he is a party.(z) But if she be an infant at the time, the chose in action is only bound by the covenant of the husband, that is if it fall into possession during his lifetime, although she may, subsequently, that is after his death, acquiesce in and adopt the settlement if to her advantage. (a) 7. It may be laid down generally that a lunatic or idiot is incapable of entering into a contract of insurance, the absence of the mind capable of assenting necessarily invalidates the agreement, since duorum vel plurium in idem placitum consensus. (b) It would, however, appear that when a person apparently of sound mind enters into a contract which is fair and bonâ fide and executed and completed, and the property, the subject matter of the contract, cannot be restored, so as to put the parties in statu quo, such contract cannot afterwards be set aside either by the alleged lunatic or those who represent him.(c) In the case lastly referred to, an immediate and a deferred annuity were purchased by a lunatic of the National Loan Fund Life (y) The fourth condition was, "That in every case where any policy issued by the company shall be at the time of issuing the same, or shall at any time afterwards become subject to any trusts whatsoever, the receipt of the trustee or trustees for the time being for the sum assured by such policy shall, notwithstanding any equitable claim or demand whatsoever of the person or persons beneficially entitled to the policy, or sum assured thereby, be an effectual discharge to the company and the proprietors thereof." (a) Ashton v. M'Dougal, 5 Beav. 56. (z) Butcher v. Butcher, 14 Beav. 222. Assurance Society; but the lunatic dying before any instalment of the annuities became due, an action was brought by his administratrix to recover the money paid to the office, on the ground that the contract was void by reason of the incapacity of the lunatic; the Court, however, held that as, upon the finding of the jury, the purchases of the annuities were transactions in the course of the affairs of human life, and the granting of the annuities were fair transactions and of good faith on the part of the society, without any knowledge or notice of the unsoundness of mind of the deceased, the action could not be sustained. [*307] From this it would seem to follow that a similar transaction, whether for an annuity or life insurance, would be equally binding upon the office. At the same time if the company knew of the unsoundness of mind of the assured, and took advantage of it to induce him to enter into the contract, it would be clearly voidable by him or his representatives. (d) When an originally valid contract has been entered into, it will not of course be affected by a change of condition in one of the parties becoming lunatic.(e) 8. When a lunatic is entitled to the money payable upon a claim under a life policy, if a commission have issued and a committee has been appointed, he will be the party to receive the money.(f) The grant of the custody of the person and estate of a lunatic seems large enough to enable the committee to give a good discharge for all moneys forming part of the estate. (g) Mr. Shelford however, in his book respecting lunatics, observes, (h) In many cases the safer course appears to be, for the party not to pay a legacy or other sum of money due to a lunatic without an order having been obtained, either on his own petition or that of the committee, which would idemnify the person making the payment from any misapplication of such money by the committee. This point does not seem to be affected by the new Act.(i) 9. The law respecting aliens is now principally governed by the 7 & 8 Vict., c. 66, by the fourth section of which it is enacted, that after the passing of the Act, every alien, being the subject of a friendly state, shall and may take and hold by purchase, gift, bequest, repre[*308] sentation, or otherwise, every species of personal property, except chattels real, as fully and effectually to all intents and purposes, and with the same rights, remedies, exemptions, privileges, and capacities, as if he were a natural born subject of the United Kingdom. Previously to this Act, however, an alien, not being an alien enemy, might have effected a life insurance and enforced the contract by an appropriate proceeding in any court of this country either at law or equity, and that although resident abroad at the time.(k) During war with the native country of an alien, his right to enforce a contract entered into previous to the commencement of the war, is suspended until the resto (d) Dane v. Kirkwall, 8 C. & P. 679; Gore v. Gibson, 13 M. & W. 623. (e) Sug. Vendors, 233. (ƒ) A guardian, under the 95th section of the 8 & 9 Vict. c. 100, has the same powers as a committee. (g) Shelford on the Law of Lunatics, 851; Roper on Legacies, 4th edit. p. 896. (h) p. 269. (i) 16 & 17 Vict. c. 70. (k) Pisani v. Lawson, 6 Bing. N. C. 90. |