effected for a single year, it does no benefit to the creditors. What a trustee in bank. ruptcy does, if such a policy comes into his hands, is to see if he can get anything from the insurance office, and all the creditors are deprived of is the surrender value of the policy; and, if there is no surrender value, we may consider that the new policy effected instead of it comes within the protection of the act [the married women's property act]." In Exchange Bank v. Loh, 104 Ga. 446, 44 L. R. A. 372, 31 S. E. 459, this court held that the only insurable interest a creditor has in the life of his debtor is for the purpose of indemnifying himself against the loss of his debt, and that such interest cannot exceed ment he liked, or forfeited, or done anything were such as this was, which had only been be liked with. Therefore there is nothing substantial arising from the fact that the policies of 1871 were in exchange for the policies of 1870." Mellish, L. J., in his concurring opinion, used the following language: "I agree with the lord justice that if the surrendered policy really was in substance worth nothing, if it was a policy which an insolvent man would naturally allow to drop, it is very difficult to see what object an insolvent trader, knowing that he is going to become a bankrupt, has in keeping up a policy on his life, and paying the premiums, knowing that the money will go for the benefit of his creditors, or perhaps not for their benefit, because, if the policy to pay a composition of 10 shillings in the pound on obtaining a release in full, the deed providing that every secured creditor should have the full benefit of his security and share in the composition for the balance. A creditor holding a policy on the life of the debtor valued it at £16, and shared in the composition for the balance. On the death of the insured after obtaining his release the creditor claimed a right in the proceeds for the full amount unpaid on his claim together with premiums paid and interest. The court, however, held that he was entitled only to the £16 with interest and the premiums paid with interest, the estate being entitled to the balance. But the assignee of the policy may be permitted to amend his valuation or withdraw his proof at any time before the assignee in bankruptcy has paid him the amount at which he valued the policy. The Thus, in Re Newton [1896] 2 Q. B. 403, 65 L. J. Q. B. N. S. 686, 75 L. T. N. S. 144, the assignee of a life insurance policy for £500 assessed its value at £10 before the trustee under a receiving order of the assignor. insured soon after died, and the trustee served a notice on the assignee that he elected to redeem the policy, and tendered the £10, which the assignee refused to accept, claiming the right to amend his valuation under the bankrupt act of 1883, schedule 2, rule 11, requiring a secured creditor before ranking for dividend to state in his proof the value at which he assesses his security, and receive a dividend on the balance only, rule 12 (a) authorizing the trustee to redeem "at any time" a security so valued on payment of its assessed value to the creditor, and rule 13, authorizing the creditor to amend his valuation "at any time" showing that the security has increased in value. The court held that he had the right to amend, as the tender by the trustee was not the equivalent of payment. on And in Er parte Norris, L. R. 17 Q. B. Div. 728, the assignee of the policy estimated its value at a specified amount and proved for the balance. The trustee in bankruptcy two days later wrote to the assignee's solicitor that it was his intention to redeem the policy. The bankrupt died a few days later, and the assignee of the policy asked to be allowed to withdraw his proof. The court held that, under sched. 2, rules 12 (a) and 13, the assignee Lad the right to withdraw, as the trustee had not paid the assessed value of the policy. But in this country the assignee of the polley has been held to retain an interest in the policy for the full amount of his claim payable on the death of the insured, although he has set a value on the policy and proved for the balance of his claim. Thus, Re Newland, 6 Ben. 342, Fed. Cas. No. 10,170, 7 Nat. Bankr. Reg. 477, holds that an assignee in bankruptcy cannot require one for whose benefit the bankrupt has taken out a policy on his life as collateral security for a debt for the amount of the policy to withdraw her proof and look only to the policy, or to surrender the policy and take a dividend on her entire claim except as to an amount paid thereon by the bankrupt; but the creditor may retain the policy and prove for all her claim except the cash-surrender value, amounting to much less than the premiums paid thereon. On a subsequent hearing in this case, Re Newland, 7 Ben. 63, 9 Nat. Bankr. Reg. 62, Fed. Cas. No. 10,171, the creditor, after deducting the cash-surrender value of the policy and receiving a dividend of 20 per cent from the assignce in bankruptcy on the balance of her claim, continued to pay the premiums on the policy until the death of the bankrupt. She then claimed the right to retain the dividend and recover the full amount of the policy. The court held that the creditor was entitled to the balance of her claim remaining unpaid with interest and the amounts paid for premiumis with interest, and that the balance, if any, would go to the assignee in bankruptcy, as $ 22 of the bankrupt act provided that a proof of debt must set forth all securities, and authorized a re-examination of all claims and proofs of loss at any time. 4. Policy assigned to other than creditors. Where the policy has been assigned in good faith to the bankrupt's wife while solvent no interest passes to his trustee or assignee in bankruptcy, but where it has been transferred in fraud of his creditors it may be reached in a proper action, though it would seem that it cannot be by proceedings supplementary to execution. Thus, Ke Steele, 98 Fed. Rep. 78, holds that a policy on one's life, assigned in good faith before the adoption of the bankrupt act of 1898 to his intended wife, who afterwards became such, does not form part of his assets on becoming bankrupt, and the trustee in bankruptcy has no interest in or right thereto. Leonard v. Clinton, 26 Hun, 289, holds that a policy payable to the personal representatives of the insured, and by him assigned to his wife, and by her transferred to her children in fraud of her creditors, is subject to the right of one of such creditors to bring an action to set aside the transfer and recover the surrender value of the policy; and such action may be maintained although there is an assignee for creditors of the wife. Metcalf v. Del Valle, 64 Hun, 245, 19 N. Y. Supp. 16, Affirmed in 137 N. Y. 545, 33 N. in amount that of the indebtedness to be se- loss. In view, therefore, of the authorities cured. The purpose of the bankruptcy act cited and the language of the act itself, it is to take the property owned by the bank- seems that a policy of insurance on the life rupt when the petition is filed, and apply it of a bankrupt, though payable to his legal towards the payment of his then existing representatives, does not vest in the trustee, debts, discharging him in due course from as assets of the bankrupt's estate, if the poliany further liability; his after-acquired ey has no cash-surrender value. It follows property not being subject to such debts. that, under the evidence submitted upon the This being true, it is apparent that the cred-hearing, the learned trial judge erred in itors represented by the trustee, whose debts granting the injunction. cannot continue against the bankrupt, can Judgment reversed. have no insurable interest in his life for the purpose of indemnifying themselves against E. 336, holds that the title to insurance policies which had been fraudulently assigned do not vest in a receiver in supplementary proceedings, as he takes only the property which the judgment debtor had when the receiver was appointed. All the Justices concur. Briggs v. McCullough, 36 Cal. 542, holds that a one-payment policy payable to the insured or his assigns ten years after date or on his death if earlier, and such dividends as his deposit shall earn, is not exempt under the California statute providing for the exemption See also Rodwell v. Johnston, 152 Ind. 525, of a policy taken out in a company incorporated 52 N. E. 798, infra, II. b, 1. under the laws of the state, where the annual premiums do not exceed $500. And Re Sawyer, 2 Ilask. 153, Fed. Cas. No. 12,393, holds that a paid-up policy payable in five years is not exempt under U. S. Rev. Stat. § 5045, exempting such property as is exempt under the state laws, and Me. Rev. Stat. chap. 44, 45, providing that all life policies are exempt when the annual cash pre Conyne v. Jones, 51 Ill. App. 17. holds that a policy taken out for his own benefit by the assured, and assigned by him to his wife with a provision that in case of her death before him it shall revert to him as if no assignment had been made, belongs equitably to the wife, and her fraudulent transfer thereof is ground for an attachment. The opinion does not indicate that it was sought to attach the pol-miums do not exceed $150, but that in case icy, but only to attach other property on the ground of fraud in the transfer of the policy. The argument, however, would seem to indicate that it was sought to attach the policy also. they do exceed such amount the creditors shall have a lien for so much of two years' premiums as exceeds such amouht per year. The same case holds, however, that a policy payable to the insured at the expiration of ten years or at his death if earlier, during b. Policy payable at specified date unless in-which time annual premiums are to be paid, sured dics sooner. 1. Policy payable to insured if living; other wise to his estate or personal representa tires. Policies of this kind are within the bankrupt act of 1898. § 70 (5), and pass to the trustee in bankruptcy. Thus. Ke Lange, 91 Fed. Rep. 361, Reversing 1 Nat. Bankr. News, 44, holds that a tenpayment endowment policy payable to the insured fifteen years after its date, and having a cash-surrender value of over $400, forms part of the assets of the trustee in bankruptcy, unless redeemed under § 70 (5), providing that the trustee shall be entitled to a policy on the life of the insured, payable to himself, his estate or legal representatives, which has a cash-surrender value, unless such value is paid to him, although § 6 provides that such act shall not affect the allowance to bankrupts of the exemptions prescribed by the laws of the state of their residence, and the statute of the state where the bankrupt resides provides that the proceeds of an endowment policy payable to the insured on attaining a certain age shall be exempt. Kratzenstein v. Lehman, 18 Mise. 590, 42 N. Y. Supp. 237, Affirmed in 19 Misc. 600, 44 N. Y. Supp. 369, holds that the interest of an insured in an endowment policy payable to him ten years after date if then alive, or to his estate on his earlier death, may, when it has a surrender value, be attached by a creditor before the end of the ten years, under N. Y. Code Civ. Proc. § 648, providing that an attachment may be levied on a cause of action arising on contract, whether past due or yet to become due. is exempt, and does not pass to his assignee in bankruptcy except as to the excess of twe annual premiums over, $150 per year. Rhode Island Nat. Bank v. Chase. 16 R. I. 37, 12 Atl. 233, holds that a policy payable to the insured if living at a specified date, and to his executors, administrators, or assigns on his earlier death, although containing no guaranty of any cash-surrender value before maturity, passes under a voluntary assignment for creditors before the policy matures, of all his property except such as is by law exempt from attachment, as such exemption covers only the statutory ones. The same case holds that the policy would not be exempt under the policy of the law, within R. I. Pub. Stat. chap. 209. § 4, cl. 14. Tradesmen's Nat. Bank v. Cresson. 10 Pa. Co. Ct. 57, holds that an endowment policy payable to the insured on a specified date if living, and to his executors, administrators, or assigns in case of his earlier death, and which provides for a paid-up policy after two payments have been made, is subject to attachment after such two payments have been made, where the insured ha: absconded, as against a claim of the insurance company against the insured which was not due when the attachment was issued. And Reynolds v. Etna L. Ins. Co. 6 App. Div. 254, 39 N. Y. Supp. 885, holds that a policy payable to the insured if living at a specified date, otherwise to his estate, is "property" the legal title of which passes to a receiver in supplementary proceedings appointed before such date. But Rodwell v. Johnston, 152 Ind. 525, 52 N. E. 798, holds that where an endowment policy payable to the insured, his heirs, executors, administrators, or assigns had been trans A contrary view was held on a prior hearing. ferred to his wife in good faith for value be17 Misc. 64, 39 N. Y. Supp. 838. fore the rendition of the judgment against the insured, the judgment creditor could not reach the policy by supplementary proceedings. been fraudulently transferred by the bankrupt to his wife within the period of the statute of limitations, though more than four months before the filing of the petition, the trustee in bankruptcy would have a right to have the transfer set aside, and the policy would form part of the assets, as § 67c, making fraudulent conveyances within four months of the filing of the petition absolutely void, does not prevent an action to have an earlier transfer declared void. The trustee, however, is not entitled to the possession of the policy until such an action has been brought and determined in his favor. 2. Policy payable to insured if living; otherCtxe to wife, child, or other relatives. Policies of this kind are also within the bankrupt act of 1898. § 70 (3). Re Hernich, 1 Am. Bankr. Rep. 713, is to the contrary. This case holds that a policy payable to the insured twenty years from date, or in case of his prior death to his wife if living, and, if not, to his executors or administrators, which has a cash-surrender value of a specified amount, and which has nearly seventeen years to run, is not within such $ 70, where the surrender value is not, by the terms of the policy, payable to the insured before maturity without a release from the wife, as such section applies only when the policy has a present value of which the bankrupt can person-im in five years if living, and, in case of his ally avail himself. The court, however, refused to follow this decision in Re Boardman, 103 Fed. Rep. 783, which holds that the trustee in bankruptcy of one having a tontine policy on his life payable to himself on a specified date if living, or on his earlier death to his mother if living. if not to himself, his executors, administrators or assigns, cannot be required to deliver up the policy where it has a cash-surrender value which the company is willing to pay en obtaining the required releases from the insured and the beneficiary, although such value is not stated anywhere in the policy, and although the beneficiary refuses to execute a release, as the trustee has at least some interest in the policy. And Re Steele, 98 Fed. Rep. 78, holds that where a policy is payable to the insured at the end of a specified period if living, but to his wife on his earlier death, the surrender value is payable to the husband, and the policy passes to his trustee in bankruptcy unless the surrender value is paid, as provided for in § 70 Re Adams, 104 Fed. Rep. 72, however, holds that a discharge in bankruptcy will not be refused on the ground of fraudulent concealment because of the omission from the schedule of the bankrupt, who was a man of advanced years, of insurance policies payable to death, to his daughters, and pledged for a debt exceeding their surrender value, as the interest of the bankrupt in them, if any, is so vague, indefinite, and uncertain. In Atkins v. Equitable Life Assur. Soc. 132 Mass. 395, the court states, by way of argument, that where a paid-up policy is made payable to the insured on a specified date if living, but to his wife on his earlier death, the wife has a distinct interest in the policy, and in its cash-surrender value, which does not pass to the husband's assignees in bankruptcy on his becoming bankrupt before such date. Brigham v. Home L. Ins. Co. 131 Mass. 319, holds that an assignee in bankruptcy is entl led to the possession, for the purpose of collecting when due, of an endowment policy payable to the insured six years after date if liv ing, otherwise to his children, on which two premiums have been paid, and that he may maintain an action in equity to recover the same from the company where the bankrupt has attempted to surrender the same to it. And Bassett v. Parsons, 140 Mass. 169, 3 N. E. 547, holds that where a special attachment was issued just after the maturity of au insurance policy on the life of the debtor for the benefit of his children, with a provision that if he survived until the maturity of the the insured having gone into insolvency before the trustes process was served upon the insurance company but after the commencement of the action, and the assignee in insolvency puts in a claim, the company is properly discharged, as the right of the insured to have the money paid to him is "property" within Mass. Pub. Stat. chap. 157, § 46, from the moment the contract is made, and that all the rights of the insured therein passed to such assignee. The court in this case did not consider the question whether the children had any interest in the insurance money, as such question was not involved. And in Re Diack, 100 Fed. Rep. 770, Reversing 2 Nat. Bankr. News, 354, an endowment policy was made payable to the insured if liv ing at the end of the term, otherwise to his wite if living, and if not to his executors, ad-policy the sum insured should be paid to him, ministrators, or assigns, and the insured, after paying a few premiums, ceased to do so and the wife thereafter paid them. The insured became bankrupt, and the court held that his wife had a contingent legal interest in the polley authorizing her to continue payment of the premiums, and that on a surrender of the policy she would have a lien on the interest of her husband for the proportion which her interest hore to the entire surrender value, and that she would also be entitled to her own proportion of the surrender value, and that the husband's trustee in bankruptcy would be entitled to the remainder. And that, upon the wife's refusal to surrender the policy, the bankrupt could be compelled to assign his interest to the trustee as of the date of the adjudication, and that the amount so assigned should be made payable out of the proceeds of the polley on its maturity or whenever sooner paid. And Re Grahs, 1 Am. Bankr. Rep. 465, holds that a ten-payment endowment policy payable to the insured if living at its maturity, otherwise to his wife, leaving a specified reserve value which is proximately the cash-surrender value, is within § 70 (5). If the title still remains in him at the time a voluntary petition in bankruptcy is filed by him after all the premiums are paid but before the maturity of the policy. This case also holds that if the policy had 3. Policy payable to wife at maturity. A tontine policy dependent on the insured surviving a specified date was entered into by him on behalf of his wife, the sum insured being payable to her if she was living, if not to his children, if any, and if none, to his executors, with four options in the wife, one of which was to take the cash value at the expiration of the tontine period. Before such expiration the assured filed a liquidation pe tition and obtained his discharge. At the end of the period the wife exercised her option to take the cash, and received it. The court held that at the commencement of the proceedings, and at the time of the discharge, there was a mere contingency that any money would become due on the policy, and that the trustee was not entitled to any part of it. Ex parte Dever, L. R. 18 Q. B. Div. 660, 56 L. J. Q. B. N. S. 552. Rc Murrin, 2 Dill. 120, Fed. Cas. No. 9,968, sub nom. Re Owen, S Nat. Bankr. Reg. 6, Fed. Cas. No. 10,627, holds that where a wife takes out a policy on her life payable to her husband on her death, and he is adjudicated a bankrupt within a year thereafter, and the wife III. Bankruptcy or insolvency of beneficiary or continues to pay the premiums for two years assignee. A policy payable to the wife of the insured, in which she is a contracting party, is within $70 (5) of the bankrupt act of 1898, on the wife's becoming bankrupt. Thus, Re Steele, 98 Fed. Rep. 78, holds that a policy payable to the wife of the insured, who by its terms is required to pay the premiums, and who is entitled to the cash-surrender value if the policy is terminated, and who has the right to terminate the policy by receiving such cash-surrender value, forms part of her estate in bankruptcy to which the trustee is entitled, unless the surrender value is paid or secured as provided in such section. But where the beneficiary is not the party contracting with the company, and the surrender value would not be payable to him or his estate, the policy does not pass to his trustee in bankruptcy. Re McDonnell, 101 Fed. Rep. 239. Brossard v. Massouin (Can. Sup. Ct.) as digested in 4 Ins. L. J. 395, holds that a public trader who effects an insurance on her husband's life will not be compelled to deliver the policy to her assignee in bankruptcy as part of her estate, as the statute of 29 Vict. chap. 17, provides that such a policy cannot be subjected by either her own or her husband's creditors. Troy v. Sargent, 132 Mass. 408. holds that a policy on one's life for the benefit of his wife may be reached during the husband's lifetime by a creditor of the wife by a bill in equity, under Mass. Gen. Stat. chap. 113, § 2. cl. 11, as chap. 58, § 62, provides that such policies inure to the separate use and benefit of the wife and children of the insured, and the children are not necessary parties to such an action, as they have no interest until her death, and then only in what was not required for the payment of debts. Conyne v. Jones, 51 Ill. App. 17, holds that where a certificate in a beneficiary society is in favor of the member's wife, and the member enters into a contract and pays the assessments, he has an absolute right to change the beneficiary at any time with the consent of the company, so that an assignment by her cannot be regarded as fraudulent to her creditors or ground for an attachment against her. Although the opinion in this case does not indicate that the creditor sought to attach the insurance policy, the argument would seem to indicate that such an effort was made. And Leonard v. Clinton, 26 Hun, 289, holds that a policy taken out on one's life in favor of his wife and children. under N. Y. Laws 1840, chap. 80, as amended by N. Y. Laws 1870, chap. 277, is not subject to the claims of creditors of the wife, and that they can reach no part of such policy. 50 L. R. A. and then dies, the assignee in bankruptcy has no right to the proceeds of the policy, but they go to the husband individually, as he had at the time of his bankruptcy no interest in the policies which would pass to the assignee. In Friedlander v. Mahoney, 31 Iowa, 311, it was held that, whether or not a policy of insurance in favor of the wife of the insured debts during her husband's lifetime, a stock of is exempt in Iowa from the payment of her goods owned by her in satisfaction of the mortgage on which the policy was assigned by her was not exempt. Md. 137, 41 Atl. 112, holds that where an insolvent holds the legal title to an insurance pol McElroy v. John Hancock Mut. L. Ins. Co. 88 icy on the life of another, and also an undi vided interest as a legatee of the assignee, and a further interest for premiums paid by him both the legal title and the beneficial interest under an agreement with the other beneficiaries, pass to his trustee in insolvency so as to endeath of the insured. title the trustee to sue on the policy after the IV. Summary. In conclusion, ordinary life policies payable to the insured or his estate or legal representatives, and endowment policies payable to him at maturity, and either to his estate or to his wife or other relatives on his earlier death, are within the bankrupt act of 1898, § 70 (5), providing that the trustee in bankruptcy shall be entitled to a policy on the life of the insured payable to himself, his estate, or legal representatives, if it has a cash-surrender value, unless such value is paid to him. A policy payable to the wife of the insured does not pass to his trustee in bankruptcy; but it does pass to her trustee, if she was a party to the contract and the policy has a cash-surrender value, unless such value is paid to the trustee. In case of an assignment of the policy it is essential that notice of the assignment shall be given to take the policy out of the order and disposition of the assignor on his becoming bankrupt or insolvent. If the policy is fraudulently assigned it may be reached and subjected by creditors to payment of their debts in a proper proceeding. The cash-surrender value of a policy is ordinarily the interest which can be subjected to the payment of debts, though in some cases the entire policy has been held to pass, and in others the balance remaining after allowing for premiums paid by the assignees or other persons than the bankrupt or insolvent, or premiums paid by him after the bankruptcy or insolvency occurs. J. H. H. UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT. CINCINNATI, NEW ORLEANS, & TEXAS V. amended during the progress of the hearings, and again with leave of the court at the trial. The material facts of the case, as we find them from the record, are that the Mary R. GRAY, Admrx., etc., of Fletcher B. petitioner's intestate, Fletcher B. Gray, was Gray, Deceased. (101 Fed. Rep. 623.) 1. The filing of amended petitions, even at or near the final hearing of the case, is entirely within the discretion of the trial court, and not reviewable on appeal. 2. Refusal of a rehearing is not review able on appeal. 3. Restating the circumstances of an injury as the evidence develops them is not within the rule that in case of an amended petition setting up an entirely new and distinct cause of action the statute of limita tions will not cease to run until it is filed. 4. A general yard master of a railroad Statement by Evans, District Judge: Samuel Thomas, as complainant, instituted a suit in equity in the court below, having for its chief purpose the foreclosure of a mortgage on the Cincinnati, New Orleans, & Texas Pacific Railway. Pending the litigation, the appellant S. M. Felton was appointed the receiver of the court in the cause, and was charged with the duty of continuing the operations of the railroad. An order was entered requiring all persons having claims against the receiver to file them with the master, Richard P. Ernst, Esq., instead of formally suing upon them, and he was directed to report thereon. In pursuance of this requirement the appellee, whose intestate husband was killed while in the service of the receiver, filed a petition before the master, setting up her claim to damages, and no objection was made to this form of proceeding. The petition was several times NOTE. On the question of the duty of a master to instruct and warn his servants as to the perils of the employment, see note to James v. Rapides Lumber Co. (La.) 44 L. A. 33. R. a yard foreman in the service of the receiv- |