that C. Beer married the defendant, Josephine Beer, after the debt was contracted, and while he was insolvent; that he purchased certain property with his own means, or those of the firm, and caused it to be conveyed to his wife, who had nothing of her own: that the defendant, The Planters' Ins. Co., insured that property in the name of Josephine Beer; that it was burnt, and the loss was adjusted at the sum of $3,100, which sum was in the hands of the insurance company, who was about to pay it over to her; that there was no other property or fund out of which their debt could be made. Complainant claimed a right, and prayed the court to subject the fund to the payment of their debt.

Josephine Beer and her husband demurred for want of equity on the face of the bill. The demurrer was sustained by the Chancellor, and the bill was dismissed. Complainants appealed.

Nugent & Mc Willie, for complainants; Birchett & Gilland, for demurrants.

SIMRALL, C. J., delivered the opinion of the court:

The complainants, the creditors of C. & P. Beer, predicate their equity on the fund sought to be subjected to their debt, on the predicate of fact, that C. Beer invested his money or that of the partnership. in the purchase of the lot and the erection of the dwelling-house thereon, and had the conveyance made to his wife with the intent to defraud his creditors.

The principle of a court of equity is that a provision for the wife contrived to conceal the means of the husband from his creditors by placing the ostensible title in her, though not within the Statute of Frauds, is void, as to creditors, by the unwritten law. The Statute of Frauds only takes effect on a conveyance made by the fraudulent debtor. The allegations of the bill disclose such a diversion and concealment of the debtor's means to the injury of creditors as operates a fraud on them. A court of law is not competent to pursue such an investment, and separate it from the property into which it has been converted. But a court of equity will lend its aid, and afford relief by treating the holder of the legal title as trustee in invitum, and will require her to pay the money to the creditor, or will fasten a charge upon the property to be exonerated by a sale. If the voluntary donee or fraudulent grantee has parted with the property, the court will follow the proceeds into any other property, and will realise out of that the money of the fraudulent debtor traced into it. Carlisle v. Tindall, 49 Miss. 234; Edminson v. Meacham, 50 Miss. 39; Lawrence v. Bank, 35 N. Y. 320; Tabb v. Williams. 7 Humph. 367; Richards v. Ewings, 11 Humph. 327.

The extent of the complainant's rights is to reach the money of their debtor, invested in the lot and the improvements, and pursue it beyond that into any proceeds or other property in which Mrs. Beer has put it. The creditor has no claim upon the the rents and profits realised by Mrs. Beer, nor does their claim against the property relate back to the time she

acquired it, so as to entitle them to an account against her.

Is the money owing by the Planters' Insurance Company to Mrs. Beer, in the sense and meaning of the principle, the proceeds of the property, or any part of it, acquired by Mrs. Beer from her husband?

The Planters' Insurance Company became indebted on a contract of indemnity against loss or damage by fire. She had effected an insurance on the dwelling house, which was destroyed by fire. The indebtedness of the insurer was ascertained to be $3,100, on adjustment of the loss. She was the apparent owner in fee. She was absolute owner against all the world except the creditors of the husband. As to them, her title was defeasible on the contingency that they successfully assailed her title as fraudulent. It is not quite accurate to say that her title is defeasible on any event. Her title at law is good. It is not condemned by the Statute of Frauds, but it is subject to the charge for the debtor's money which went into it for the use of the wife. The property could not have been sold under a judgment or attachment, for the entire scope of the Statute of Frauds is to have property fraudulently conveyed open to creditors, the specific property in the hands of the fraudulent grantee. It does not follow the proceeds. 7 Humph. supra. The fraudulent grantee may dispose of the property 10 a third person for value. Innocent third persons may acquire liens which will be superior to the claims of the creditors of the original grantor. So, if the property has been destroyed by time or accident, the creditor has lost his remedy.

But, as already observed, when the property passes from the grantee, a court of law is unable to go further. But, at that point, a court of chancery extends its efficient arms and lays hold of the proceeds or any other property into which they may have been converted.

But here there has been no sale or exchange by which the original property has disappeared, and notes or bonds are substituted as its representative. The original lot remains, but the house has been destroyed.

We are of opinion that the insurance money owing to Mrs. Beer is not the proceeds of the property, and that it can not be taken from her by the creditors of her husband. As said in Lerow v. Wilmarth, 9 Allen, 385: "The contract (of insurance) was valid, which she had a right to make, and can not be defeated by third persons," who claimed that it was defeasible, if creditors assailed it. In their very natures policies of insurance are not incidents of the property. They are contracts between insurer and insured for indemnity of the assured, and not for loss or damages which another person may have sustained because of the destruction of the property, no matter what the interest of that person may be as mortgagee, creditor or otherwise. If another person have an interest in the property, he may insure for himself, nor can he set up claim to money which has become due to another, unless that other be his debtor, and the money is garnisheed or attached. Carpenter

I. DOWER-STATUTORY RESTRICTION-POWER OF WIFE TO RELEASE.-Though the right of dower be restricted by statute to those lands of which the husband dies seized, still the right accrues, as by common law, at the marriage; hence, the wife may, during coverture, release by apt words her dower interest in her husband's lands.

2. MODE OF RELEASE.--General covenants in a deed, or words which do not necessarily import a release of dower, will not be construed as such release, though the homestead might be expressly waived in the same conveyance.

MCFARLAND, J., delivered the opinion of the

court.

66

Complainant charges that her husband, Griffin Atwater, was in his life time the owner of a certain house and lot, which constituted their homestead; that they executed a deed of trust conveying the property to a trustee to secure a debt owing by her husband to the defendant, Butler; and that she joined in the deed, which contains this clause, to wit. We hereby release and relinquish all right, claim and interest whatever, in and to said lot of ground, which is given by or results from all laws of this state pertaining to the exemption of homestead or dower." Griffin Atwater died before this deed of trust was foreclosed. The bill prays to have the trustee enjoined from selling so as to affect complainant's right of dower, with a prayer to have dower assigned.

It is argued with much ingenuity that a married woman can not release or convey her right to dower under our law. The argument is that under our statutes, the right to dower does not accrue until the death of the husband; that before the death of the husband, the wife has no right or interest in the land; and that a married woman can not bar or estop herself by her deed as to future rights, but can only convey, in the mode prescribed by the statute, such present right or interest in the land as she may own.

It can not be seriously denied that where the right of dower exists as at common law, the wife

may release her right by joining in the conveyance of the husband for that purpose.

By the common law the wife was entitled to dower in a third of all the lands of which the husband was seized at any time during the coverture. Her right related to the marriage, which was a valuable consideration, and her claim was therefore superior to the purchaser from the husband after the marriage, and also superior to the claims of creditors.

By an act of 1784. this common law right of the wife was changed; her right to dower was restricted to the lands of which the husband died seized. The question then arose whether the widow's right to dower after this statute was or was not superior to the claims of creditors. If her right only accrued upon the death of the husband, and she took her interest from him as the heir took his title, it was argued that she must take subject to the claims of creditors, precisely as the heir takes.

It was held, however, in Combs v. Young, 4 Yerg. 218, that the widow's claim was still superior to the claims of creditors, notwithstanding the act of 1784. The decision was placed upon the ground that the widow's right in reference to lands of which the husband dies seized, stands upon the same footing it did previous to the act of 1784. That is, her right relates to the marriage, and she is a purchaser for a valuable consideration. The change effected by the act of 1784 was that the right of dower is defeated, either by the absolute conveyance of the husband, or by any means which divests the husband's title absolutely. The purchaser from the husband has a superior right to the widow; but if the husband die seized of the land, the widow's right is not regarded as accruing at that time, but relates to the marriage.

The case of Combs v. Young was recognized and approved in Rutherford v. Read, 6 Hum. 423, where it was held the claim of dower was superior to the claim of a creditor who had secured a specific lien by levy of an execution in the life time of the debtor. It was held that this was not changed by the act of 1856, Code, sec. 2399. See Tarpley v. Gannaway, 2 Cold. 246. This act of 1856, which gives dower in lands mortgaged, where the mortgagor dies before foreclosure, is simply a partial return to the common law. That is to say, previous to this act, the right of dower might be defeated by the deed of the husband; but after this latter act was passed, the right would not be defeated by the deed of the husband conveying the land to secure debts, unless the deed was foreclosed and the land sold before the husband's death. Dower might still be defeated, however, by the absolute conveyane of the husband.

That the dower right still rests upon the common law principle, with the modification we have stated, is fully recognized in Boyer v. Boyer & Bradley, 1 Cold. 12, where it was held that a widow was not entitled under the art of 1856, to dower in lands mortgaged by the husband before the marriage, although he died before foreclosure, upon the ground that the wife's inchoate right attaches upon the marriage, and as the land had

been conveyed before the marriage her right did not attach, although her claim was directly within the letter of the statute. Although the act of 1856, above referred to, gave dower to the widow where the lands were mortgaged to secure debts, and the debtor died before foreclosure, still this right would be defeated by the subsequent absolute alienation by the husband, as we have held.

These authorities fully establish that during the coverture, the wife has the inchoate right of dower as at common law; and as it can not be seriously denied that she could convey or release her right of dower, when that right exists at common law, we think it equally clear that she may release or convey the right, notwithstanding the changes in the common law made by our statute.

Although we have no special statutes authorizing a feme covert to release her inchoate right of dower, yet we think she may convey or release this right under the same principle that our law allows her to convey any other interest she may own in lands. It is true that her conveyance or release can only be important in cases of mortgages or deeds of trust, as in cases of absolute conveyances her assent or joining in the deed is not necessary. We have examined the authorities referred to, but we think the conclusion we have reached is correct. The decree of the chancellor will be affirmed.

The case of Annie McKinlay v. Christian Kuntz, trustee, is in all respects similar, except that the deed contains no express release of dower. It is a conveyance to secure debt. It purports to be the deed of the husband and wife, and uses the usual words of a conveyance by both, with covenants of warranty. After giving to the trustee a power of sale, the deed adds: "And, in the event of sale, we waive all equity of redemption and re-purchase and homestead in said property"; but the deed contains no express release of dower. It is made absolutely essential under our constitution and statutes, that the wife shall join in the deed to bar her right of homestead; and where she joins for that purpose only, we do not think her right of dower will be thereby lost, as in cases of mortgages and deeds of trust, where the husband dies before foreclosure or sale. In the present case it is true words are used which seem sufficient to convey any interest the wife might have had in the land. Still we think the purpose only was to release the right of homestead, as this is expressly specified.

Mr. Bishop says, it is commonly held that the deed must contain apt words signifying a release of dower; that, for instance, it is not sufficient for the wife to join the husband in the general covenants of the deed. See Bishop on Rights of Married Women, section 449.

We hold that the complainant, in this case, did not release her right of dower by her deed, and the decree of the chancellor will be reversed.

NOTE.-The Tennessee (South Carolina) statute of 1784 gave to the widow the right of dower in "all

the lands and tenements and hereditaments of which her husband died seized or possessed;" and this provision is carried into the code at sec. 2398, the provision of the act of 1823 being added, which extended the dower right to lands of which the husband at death was the equitable owner.

The act of 1784, for its restrictions upon the common law, was severely critised by Catron, C. J., in Combs v. Young, 4 Yerg. 218; and on account of these restrictions the act was there construed strictly, the court holding that in all other respects save the particular lands in which dower was allowed, the common law still prevailed, so that the doctrine was still adhered to, that the right of dower relates to the marriage, the widow being still recognized as a purchaser for a valuable consideration. This rule that the right of dower is only inchoate during coverture being even then vested in the wife was reaffirmed in Watkins v. Watkins, 7 Yerg. 292, and Boyer v. Boyer, 1 Cold. 12. In Chester v. Greer, 5 Hum. 26, and McIver v. Cherry, 8 Hum. 713, it was held that under the act of 1784, the widow is not dowable of lands mortgaged by the husband, because he did not die seized and possessed of such. These decisions led to the "partial return to the common law" shown in the act of 1856, code, sec. 2399; by which the widow is also "entitled to dower in lands mortgaged or conveyed in trust to pay debts, when the husband dies before foreclosure of the mortgage or sale under the deed." Thus a legislative, as well as a judicial adherence to the rules of the common law concerning the origin and quality of the dower estate was shown.

From the concluding portion of the opinion in the principal case, it follows that it will be essential to recite, in every deed in which a married woman joins to lands in Tennessee, the extent and character of the interest or estate she intends to convey or release.

SUICIDE being unlawful and criminal as malum in se, any attempt to commit it is likewise unlawful and criminal, and if one attempting it kills another, though not intending his death, the act is criminal homicide, and, at the least, manslaughter.

Indictment charging the defendant with the murder of Charles Ricker, by shooting him with a pistol.

It was proved at the trial that Ricker came to his death by a shot from a pistol in the hands of the defendant.

Evidence was introduced by the defendant tending to show that she had been engaged to be married to the deceased; that an interview was had between them at her room, in the course of which he expressed his intention to break off the engage

ment and abandon her entirely; that she thereupon went to her trunk in her room, took the pistol from it and attempted to use it upon herself, with the intention of taking her own life; that deceased then seized her to prevent her from accomplishing that purpose, and a struggle ensued between them, in which the pistol was accidentally discharged, and that in that way the fatal wound was inflicted upon him.

The jury were instructed as follows: "I understand her to say that she put the pistol to her head, or, at any rate, that she took it out of her trunk with the intention of committing suicide. Now, supposing that you believe her story, and that she did put the pistol to her head with the intention of committing suicide, she was about to do a criminal and unlawful act and that which she had no right to do. It is true, undoubtedly, that suicide can not be punished by any proceedings of the courts, for the reason that the party who killed himself has placed himself beyond the reach of justice, and nothing can be done. But the law, nevertheless, recognizes suicide as a criminal act, and the attempt at suicide is also criminal. It would be the duty of any by-stander who saw such an attempt about to be made, as a matter of mere humanity, to interfere and try to prevent it. And the rule is that, if a homicide is produced by the doing of an unlawful act, although the killing was the last thing that the party about to do it had in his mind, it would be an unlawful killing, and the party would incur the responsibility which attaches to the crime of manslaughter. Then you are to enquire, among other things, and if you reach that part of the case, did this woman attempt to commit suicide in his presence, and, if she did, I shall have to instruct you that he would have a right to interfere and try to prevent it by force. He would have a perfect right, and I think I might go further, and say that it would be his duty to take the pistol away from her, if he possibly could, and to use force for that purpose. If, then, in the course of the struggle on his part to get possession of the pistol, to prevent the person from committing suicide, if, in the course of such struggle, the pistol went off accidentally, and he lost his life in that way, it would be a case of manslaughter, and it would not be one of those accidents which would excuse the defendant from be

ing held criminally responsible. Did she get into such a condition of despondency and disappointment that she was trying to commit suicide, and was about to do so? If that was her condition, if she was making that attempt, and he interfered to prevent it, and got injured by an accidental discharge of the pistol (as I told you), it would be manslaughter."

The jury found the defendant guilty of manslaughter. And to the foregoing rulings and instructions the defendant excepted.

GRAY, C. J., delivered the opinion of the court. The life of every human being is under the protection of the law, and can not be lawfully taken by himself, or by another with his consent, except by legal authority. By the common law of Eng

se.

land, suicide was considered a crime against the laws of God and man, the lands and chattels of the criminal were forfeited to the King, his body had an ignominious burial in the highway, and he was deemed a murderer of himself and a felon, felo de Hales v. Petit, Plow 253, 261; 3 Inst. 54; 1 Hale P. C. 411, 417; 2 Hale P. C. 62; 1 Hawk, ch. 27; 4 Bl. Com. 95, 189, 190. "He who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he did it merely of his own head." 1 Hawk. ch. 27, § 6. One who pursuades another to kill himself, and is present when he does it, is guilty of murder as a principal in the second degree; and if two mutually agree to kill themselves together, and the means employed to produce death take effect upon one only, the survivor is guilty of the murder of the one who dies. Bac. Max. reg. 15; Rex. v. Dyson, Russ and Ry. 523; Reg. v. Alison, 8 C. & P. 418. One who encourages another to commit suicide, but is not present at the act which causes the death, is an accessory before the fact, and at common law escaped punishment only because his principal could not be first tried and convicted. Russell's Case, 1 Moody, 356; Reg. v. Leddington, 9 C. & P. 79. And an attempt to commit suicide is held in England to be punishable as a misdemeanor. Reg. v. Doody, 6 Cox, C. C. 463; Reg. v. Burgess, Leight & Cave, 258; s. c, 9 Cox, C. C. 247.

In the colony of Massachusetts, by the Body of Liberties of 1641, all lands and heritages were declared to be free, not only from all feudal burdens, but from all escheats and forfeitures upon the death of parents or ancestors, be they natural, casual or judicial, to which latter codes, besides inserting the word "unnatural," added, "and that forever." Body of Liberties, art. 10; 28 Mass. Hist. Coll. 218, Mass. Col. Laws, (ed. 1660) 48; (ed. 1672) 16; Anc. Chart. 147. The principle thus declared has always been followed in practice; and there has accordingly never been in Massachusetts any forfeiture upon one's death on conviction or suicide unless under some particular statute creating the crime, of which no instance is remembered. 5 Dane Ab. 4, 251, 252; 7 Dane Ab. 318. But suicide continued to be considered malum in se, and a felony.

In 1660, the legislature "judgeth that God calls them to bear testimony against such wicked and unnatural practices, that others may be deterred therefrom," and therefore enacted that every selfmurderer shall be denied the privilege of being buried in the common burying-place of Christians, but shall be buried in some common highway, where the selectmen of the town-where such person did inhabit-shall appoint, and a cartload of stone laid upon the grave as a brand of infamy, and as a warning to others to beware of the like damnable practice." 4 Mass. Col. Rec., pt. 1,432; Mass. Col. Laws (ed. 1672) 137; Anc. Chart. 187. That statute, though fallen into disuse, continued in force until many years after the adoption of the constitution of the commonwealth. 7 Dane Ab. 208, 298.

An early statute of the Province directed that the form of verdict upon a coroner's inquest should

state"where, at what time, by what means, with what instrument and in what manner the party was killed or came by his death," and that "if it appear to be self-murder, the inquisition must conclude after this manner, viz: And so the jurors aforesaid say upon their oaths, that the said A B, in manner and form aforesaid, then and there voluntarily and feloniously, as a felon of himself, did kill and murder himself, against the peace of our sovereign Lord and King, his crown and dignity." Pro. St. 1700, 1701 (3 W. III) c. 3, § 7; 1 Prov. Laws (State ed.) 429; Anc. Chart. 350. This accorded with the usual, though, perhaps, not necessary, form of common law. 1 Saund. 356. A statute passed at the close of the American Revolution upon the same subject, re-enacted these directions, except in substituting for the last clause, "against the peace and dignity of the commonwealth and the laws of the same." St. 1783, c. 43, § 2.

In Commonwealth v. Bowen, 13 Mass. 356, it was held that where one counseled another to commit suicide, who, by reason of his advice, and his presence did so, the adviser was guilty of murder. The grounds of the decision of that case appear more clearly in the fuil report of the trial in a pamphlet published at Northampton, in 1816, from which the statement of the case in 13 Mass. is taken.

The indictment, drawn by Perez Morton, Attorney-General, contained two counts. The first count alleged that Jonathan Jewett, with a cord, of which he tied and fastened one end around his neck, and the other end around the iron grate of a window, "feloniously, willfully, and of his malice aforethought, did hang and strangle himself," and by reason thereof died, and so, as a felon of himself, in manner and form aforesaid, feloniously, willfully and of his malice aforethought, did kill and murder himself." This count then went on to allege that the defendant, "before the felony and self-murder aforesaid," "feloniousy, willfully and of his malice aforethought, did counsel, hire, pursuade and procure the said Jonathan Jewett the felony and murder of himself as aforesaid, in manner and by the means aforesaid, to do and commit," and so the defendant, the said Jewett, "in manner and form aforesaid, feloniously, willfully and of his malice aforethought, did kill and murder," The second count was an ordinary count for murder, alleging that the defendant murdered Jewett by tying and fastening and procuring to be tied and fastened a cord around his neck and around the iron grate of a window, and, thus hanging, strangling and suffocating him, and causing and procuring him to be hung, strangled and suffocated. Bowen's Trial, 3, 6.

At the trial, before Chief Justice Parker, and Justices Jackson and Putnam, the Attorney-General put in evidence, without objection, the verdict of the coroner's jury, finding in substance that Jewett was found dead in prison, with a cord around his neck and around the iron grate, and concluding, in the form prescribed by the statute of 1783, that he "feloniously and as a felon of himself, killed and murdered himself." Bowen's

Trial, 12. The defendant's counsel, in argument, having stated that the first count charged the defendant as an accessory before the fact by aiding and abetting the murder, and the second count as the actor and principal in the murder, the chief justice suggested that he considered both counts to charge the defendant as principal, and to this the attorney-general assented. p. 22.

That

The chief justice, in charging the jury, said: "You have heard it said, gentlemen. that admitting the facts alleged in the indictment, still they do not amount to murder-for Jewett himself was the immediate cause and perpetrator of the act which terminated in his own destruction. the act of Bowen was innocent no one will pretend, but is his offence embraced by the technical definition of a principal in murder? Self-destruction is doubtless a crime of awful turpitude; it is considered in the eye of the law of equal heinousness with the murder of one by another. In this offence, it is true the actual murderer escapes punishment; for the very commission of the crime, which the law would otherwise punish with its unmost rigor, puts the offender beyond the reach of its infliction. And in this he is distinguished from other murderers. But his punishment is as sure as the nature of the case will admit; his body is buried in infamy, and in England his property is forfeited to the king. Now if the murder of one's self is felony, the accessory is equally guilty as if he had aided and abetted in the murder of A by B; and I apprehend that if a man murders himself, and one stands by, aiding in and abetting the death, he is as guilty as if he had conducted himself in the same manner where A murders B. And if one becomes the procuring cause of death, though absent, he is accessory." Bowen's Trial, 51, 52. It is evident that this part of the charge relates solely to the first count; for the introductory words, "admitting the facts alleged in the indictment," could have no application to the second count; and what was said about an accessory was comparatively immaterial, because the defendant, as we have already seen, was charged as a principal only.

Suicide has not ceased to be unlawful and criminal in this commonwealth by the simple repeal of the colony act of 1660, by the St. 1823, ch. 143, which (like the corresponding St. of 44 Geo. IV, ch. 52, enacted by the British Parliament within a year before), may well have had its origin in consideration for the feelings of innocent surviving relatives; nor by the briefer directions as to the form of coroners' inquests in the Rev. Stats., c. 140, § 8, and the Gen. Stats., ch. 175, § 9, which in this, as in most other matters, have not repeated at length the forms of legal proceedings set forth in the statutes codified, nor by the fact that the legislature, having in the general revision of the statutes, measured the degree of punishment for attempts to commit offenses by the punishment prescribed for each offense if actually committed, has, intentionally or inadvertently, left the attempt to commit suicide without punishment, because the completed act would not be punished in any manner. Rev. Stats., ch. 133, § 12; Gen. Stats., ch.