member might result from any one of a number of diseases or causes which were not specifically enumerated in the contract, so self-destruction might be the culmination of mental derangement superinduced by causes as uncontrollable as some forms of physical disease. When the death of an insured person is due to such a cause, the insurer is always liable to the beneficiary, unless the particular cause is one which, by the express terms of the contract, is excepted from the risk. As the contract was silent upon the subject of self-destruction by the insured while insane, death from that cause was clearly within its terms. Upon the execution of the contract the insured, therefore, acquired a fixed and vested right to insurance covering that risk. No subsequent amendment of the by-laws could affect that right without the express assent of the insured. This doctrine has recently been reaffirmed by this court in Weber v. Supreme Tent, K. of M. 172 N. Y. 490, 65 N. E. 258, and, if we could here end the discussion of this case upon the assumption that plaintiff's husband was insane when he took his life, the Weber Case would be a controlling authority in favor of this plaintiff's right

to recover.

unexpressed, part of the original contract that the insured should not intentionally cause his own death. If we assume, therefore, that the original contract and by-laws were silent upon the subject of suicide by the insured while sane, the amended by-law is valid because there can be no such thing as a vested right to commit suicide, and for the further reason that it is nothing more than the written expression of a provision which the law had read into the contract at its inception.

But the original contract was not silent in this regard. In his application for insurance the plaintiff's husband expressly stipulated that, in case his death should be caused by any illegal act of his own, all his right, title, and interest in the beneficiary fund should revert to the association. At common law, suicide was a crime, which was followed by the forfeiture of the offender's property. In this state it is denominated "a grave public wrong" (Penal Code, § 173), but, owing to the impossibil ity of reaching the successful perpetrator, no forfeiture is imposed. Plaintiff's husband came to his death in Pennsylvania. In the absence of evidence upon the subject, it is to be presumed that the common law prevails there. This view of the case leads to

the plaintiff's husband was guilty of a crime, and all crime is illegal. It is, to say the least, doubtful whether the rule of the common law, declaring suicide to be malum in se, has been abrogated by the provisions of our Penal Code; but, whether we invoke the stern morality of the common law or the more merciful decree of our own statute, which declares suicide to be a "grave public wrong," it may fairly be called an illegal act within the purview of the language of the contract herein, and, if so, the contract is rendered nugatory by force of its own provisions.

But we cannot stop here. The learned trial court has found that the plaintiff's the conclusion that in committing suicide husband committed suicide. There is no finding whether he was sane or insane. For colloquial purposes the term "suicide" is at once sufficiently specific and comprehensive to cover all kinds of human self-destruction. But, if the law is to distinguish between the self-destruction of the insane and the self-inflicted death of the sane, insurance contracts must be construed in the light of definitions which express the distinction. Our Penal Code defines suicide as the intentional taking of one's own life (§ 172), and the definitions referred to in Weber v. Supreme Tent, K. of M. 172 N. Y. 490, 65 N. E. 258, are to the same effect. Intent is of the essence of the act, and this presupposes reason or sanity. Thus the unqualified finding of the learned trial court that plaintiff's husband committed suicide is, in effect, a determination that it was the intentional act of a sane man. Aside from this, however, there is the presumption of sanity which must be entertained in the absence of proof. Insanity cannot be predicated simply upon the act of self-destruction, for human experience has shown that sane men have taken their own lives. To the extent that the amended by-law provides for a forfeiture of contract rights in the event of suicide by the insured while he was sane, it is valid, first, because it invades no vested right of the insured, and, second, because it is a fundamental, though

Although the foregoing conclusions are decisive of the case, we think the third defense above referred to presents a question that is fairly raised, and that ought to be decided for the benefit of all concerned in contracts of this kind. What are the plaintiff's rights, if we treat the case as one in which there is no provision, either in the by-laws or the contract, relating to suicide by the insured while sane? We have al· ready suggested that it is an inherent and fundamental part of every such contract that the insured shall not intentionally take his own life. No act so contrary to good morals and the usual course of human nature should be held to be within the contemplation of the parties to a contract for life insurance, unless it is clearly and unequivocally expressed. The learned counsel

is no power in the person procuring the insurance by any act of his, by deed or by will, to transfer to any other person the interest of the person named." This was the principle enunciated in Pingrey v. National L. Ins. Co. 144 Mass. 374, 11 N. E. 562, where the insured had taken out an endowment policy, payable to his mother in case of his death before the endowment should ac

for the plaintiff admits the force of the ar- | The principle governing such a contract is gument as applied to cases in which the well stated by Chief Justice Fuller in Cenestate of the suicide is enhanced by his own tral Nat. Bank v. Hume, 128 U. S. 195, 206, wrong, but he insists that it has no appli- 32 L. ed. 370, 376, 9 Sup. Ct. Rep. 41, 44, cation to cases in which the beneficiary as follows: "It is, indeed, the general rule named in the policy or certificate takes the that a policy, and the money to become due insurance money directly by the terms of under it, belong, the moment it is issued, the contract, and not derivatively, as, for to the person or persons named in it as the instance, in the capacity of heir or legal | beneficiary or beneficiaries, and that there representative of the suicide. It is argued that in the latter case those who take the suicide's estate by mere operation of law are no more entitled to enjoy the fruits of his wrong than he himself would be entitled to profit by his own wrong if living, but that a different principle applies where the beneficiary has a vested interest in the contract from the instant that it is entered into for his benefit. That is precisely the difference between the contract in the case at bar and an ordinary insurance policy payable directly to a named beneficiary. Under chap. 80, p. 59, of the Laws of 1840, and the acts amendatory thereof, a wife has an insurable interest in her husband's life, which may be made the subject of a contract either directly between the wife and the insurer or between the latter and the husband for the benefit of his wife. Where such insurance is effected by the husband, he is held to be the agent of the wife, and the latter acquires a vested interest in the policy at the moment of its delivery to the insured. Whitehead v. New York L. Ins. Co. 102 N. Y. 143, 55 Am. Rep. 787, 6 N. E. 267; Holmes v. Gilman, 138 N. Y. 382, 20 L. R. A. 566, 34 N. E. 205.

crue. The insured subsequently married, surrendered his policy, and took out a new one, payable to his wife. It was there held that, notwithstanding his attempt to vest the proceeds of the policy in his wife, the mother was entitled thereto. See also Barry v. Brune, 71 N. Y. 261. This principle has been applied to cases where the assured intentionally took his life by his own hands. Fitch v. American Popular L. Ins. Co. 59 N. Y. 557, 17 Am. Rep. 372; Morris v. State Mut. Life Assur. Co. 183 Pa. 563, 39 Atl. 52; Seiler v. Economic Life Asso. 105 Iowa, 87, 43 L. R. A. 537, 74 N. W. 941. Where, however, the policy is taken out for the benefit of the insured himself, or his estate, the principle does not apply in case he intentionally takes his own life. In such a case the persons who take the proceeds of the policy take through the insured, and not under a contract made with them, or for their benefit, as in the cases above referred to. They therefore stand in the place of the insured, and are bound by the same laws and limitations which would bind the insured, through whom they take. As the insured could not take advantage of his own wrong, so those who represent him cannot be permitted to benefit by it. This is the rule laid down in Ritter v. Mutual L. Ins. Co. 169 U. S. 139, 42 L. ed. 693, 18 Sup. Ct. Rep. 300, and applied in the following cases: Amicable Soc. v. Bolland, 4 Bligh N. R. 194-211; Breasted v. Farmers' Loan & T. Co. 8 N. Y. 299, 59 Am. Dec. 482; Borradaile v. Hunter, 5 Mann. & G. 639; Clift v. Schwabe, 3 C. B. 437; Bradley v. Mutual Ben. L. Ins. Co. 45 N. Y. 422, 6 Am. Rep. 115; Smith v. National Ben. Soc. 123 N. Ÿ. 85, 9 L. R. A. 616, 25 N. E. 197.

It is undoubtedly true that in the case of a contract valid at its inception such vested rights cannot be affected or impaired by the subsequent fraud or wrong of the insured. But what are the vested rights of a beneficiary under a certificate like the one held by the plaintiff herein? The argument in her behalf proceeds upon the theory that there is a strict analogy betweer regular life insurance and co-operative or assessment fe insurance, and this is where we think the inherent weakness of plaintiff's case becomes apparent. Under the ordinary life insurance policy taken out by the insured for the benefit of a third person, or by a third person for his own benefit on the life of the insured, the beneficiary takes a vested in terest in the policy, and the fund payable thereon, from the moment that the policy is delivered. His rights, when once thus vest ed, cannot be defeated by the subsequent acts of the assured. The assured has no A contract of insurance based upon mempower of disposition over the same without bership in a benefit society rests upon rad. the consent of the beneficiary, and upon the ically different legal principles than those death of the insured neither his personal which govern the ordinary life insurance representatives nor his creditors have any policy. As stated by Bacon in his work on interest in the proceeds of such a contract. Benefit Societies (§ 321): "The chief dif

of the insured in an ordinary life insurance policy could under the same conditions.

ference between the ordinary contracts of | can no more enefit by the wrong of the inlife insurance companies and those usual insured in wilfully and intentionally taking benefit societies is that in the former the his own life than the legal representatives policy and documents referred to in it contain the agreement, while in the latter the certificate, together with the charter and by-laws, are to be looked to for the contract." This distinction is clearly emphasized in Sabin v. Phinney, 134 N. Y. 428, 31 N. E. 1088, where this court said: "The statute under which the corporation was organized, its by-laws, together with the application for and the certificate of member ship, constituted the contract which existed between the member and the society, which instruments, construed together, measure the rights of these litigants. Any person who became an appointee in such a certificate took the position subject to the absolute right of the member to substitute a new one at any moment. The rights acquired by the member by virtue of this relation did not amount to a chose in action. He had no interest in the society that was assignable or transferable until some right of action had accrued. The appointee had no vested interest in the sum which might, in a contingency, become payable on death of the member;" citing Hellenberg v. District No. 1, I. O. of B. B. 94 N. Y. 580; Sanger v. Rothschild, 123 N. Y. 577, 26 N. E. 3; Bown v. Supreme Council, C. M. B. A. 33 Hun, 263; and Boasberg v. Cronan, 30 N. Y. S. R. 483, 9 N. Y. Supp. 664.

So the plaintiff, as the beneficiary named in the certificate herein, took it subject to change in accordance with the constitution and by-laws of the defendant, and therefore she acquired no vested interest in either the certificate or the money to be paid upon it.

The foregoing views as to the effect of such a contract as the one at bar do not depend wholly upon the authority of the reported cases, for the statute itself (Insurance Law, § 238 [Laws 1897, p. 2025, chap. 690]) provides in express terms that a member of a benefit society has the right to change the beneficiary named in the certificate without the consent of a previously named beneficiary. Plaintiff's rights were subject to revocation. They could be af fected by the acts of her husband. They were dependent upon the limitations of the contract by which her husband was bound, and, in short, were no greater than those of the husband's personal representatives would have been in an ordinary contract of insurance wherein they might have been named as beneficiaries. It must follow that a beneficiary under a certificate issued by a benefit association, who takes his rights through the insured, and subject to the terms of the contract entered into by him,

The case of Weber v. Supreme Tent, K. of M. 172 N. Y. 490, 65 N. E. 258, is not in conflict with this doctrine, for in that case there was a finding that the deceased member took his life while insane, and, as already pointed out, that was a risk which was included in his contract, and therefore his beneficiary was entitled to claim the fund. It must be admitted, however, that the views above expressed cannot be reconciled with the decision in Darrow v. Family Fund Soc. 116 N. Y. 537, 6 L. R. A. 495, 22 N. E. 1093. In that case the particular phase of the question here discussed was not presented. There the discussion in respect to the effect of the suicide of the member rested upon the case of Fitch v. American Popular L. Ins. Co. 59 N. Y. 557, 17 Am. Rep. 372; but, as that was an ordinary life insurance contract, it was not an authority upon the facts of the Darrow Case. To the extent, therefore, that there is a conflict between the Darrow Case and the case at bar, we feel constrained to overrule the former.

We may add in conclusion that many cases in other jurisdictions are cited by the learned counsel for the plaintiff in support of the contention that under contracts of insurance valid in their inception, which contain no provision against suicide, and are payable directly to nominated beneficiaries, the insurer is liable regardless of the manner in which the insured came to his death. As above indicated, our decision is not at variance with those cases which are based upon ordinary contracts of insurance. Among the cases cited, however, there are some in which the courts of other states have gone to the extent of applying this principle to beneficiary certificates like the one in the case at bar, and these cases we must decline to follow.

These views would require a reversal of the judgment herein but for the provision in the amended by-law referred to, which entitles the plaintiff to have refunded to her all payments made upon the certificate, together with interest thereon at the rate of 3 per cent per annum. vision we will modify the judgment by deducting therefrom the excess over such payments and interest as stated, and, as thus modified, affirm the same, without costs to either party in this court.

Under this pro

Parker, Ch. J., and Gray, O'Brien, and Cullen, JJ., concur. Bartlett, J., concurs in result. Martin, J., not voting.

NEW YORK COURT OF APPEALS.

commit a burglary, and that they encountered and killed a police officer near the scene of the intended crime, is sufficient to sustain a finding of deliberation and premeditation necessary to constitute the crime of murder in the first degree, although there is also evidence that the officer was the first to fire.

5. A finding that accused was engaged in an attempt to commit a burglary at the time he killed a police officer,

6. An indictment for murder in the common-law form is sufficient to admit proof of facts to bring a homicide within statutory definitions of murder in the first degree.

(O'Brien, J., dissents.)

(January 6, 1903.)

so as to constitute the crime of murder in APPEAL by defendant from a judgment

the first degree, is justified by evidence that he and his associates armed themselves and

started towards the objective point of the burglary, stealing necessary implements on the way, and that, while inspecting the building which they intended to burglarize, with intent to break it open, which they would have done had their design not been frustrated, the officer was encountered and

killed.

I. Scope.

It will be seen in subsequent subdivisions of this note that there is a conflict of opinion as to whether the rules of law and statutory enactments, by which killing, though without malice or intent to kill, is murder when done in the commission of a felony, and manslaughter when done in the commission of a criminal act not a felony, are confined in their application to independent substantive criminal acts, independent of personal violence to the deceased; or as to whether they also apply to such personal violence, though such personal violence itself constitutes the killing, and is a single act differing only from the acts of violence by which life is taken, constituting murder, or manslaughter, in the absence of intent to kill or do bodily harm. In view of the fact, however, that a great majority of homicide cases are cases of personal violence, and that, if all cases of homicide from personal violence were included in this note, it would cover nearly the whole subject of homicide; it is confined, so far as may be, to cases of killing perpetrated in the commission of some independent substantive crime not constituting an element of the murder itself, such as arson, rape, robbery, burglary, larceny, etc.; and all assault cases in which the assault entered into the killing and constituted an element of it have been omitted, unless they were treated by the court as cases of homicide committed in the perpetration of an illegal act, or unless they were made to turn upon, or were decided upon, questions with reference to the rules applicable to such homicide.

II. General rules.

When an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter according to the nature of the act which caused it. United States v. Travers, 2 Wheeler C. C. 490, Fed. Cas. No. 16,537; Com. v. Chance, 174 Mass. 245, 75 Am. St. Rep. 306, 54 N. E. 551; Rex v. Hodgson, 1 Leach C. L. 6, 1 East P. C. 258.

And in such case a charge that one may be held guilty of an act not specifically intended when it is the result of a specifically evil purpose is not improper when warranted by the evidence. Myers v. State (Fla.) 31 So. 275. It will be either murder or manslaughter as

of a Trial Term of the Supreme Court for Schoharie County convicting him of murder. Affirmed.

The facts are stated in the opinions. Messrs. S. L. Mayham and C. B. Mayham, for appellant:

There was no evidence of a deliberate and premeditated design to effect the death of i the person killed, or of another.

the intended offense is felony or only a misdemeanor. Smith v. State, 33 Me. 48, 54 Am. Dec. 607.

An involuntary killing if in the prosecution of a felonious intent, or if in its consequences it naturally tended to bloodshed, would be murder; but if no more was intended than a mere civil trespass, it would only amount to manslaughter. United States v. Travers, 2 Wheeler C. C. 490, Fed. Cas. No. 16,537.

And a man may commit murder or manslaughter by doing otherwise lawful acts ruthiessly, as well as by doing acts unlawful for independent reasons, and from which death accidentally ensues. Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264.

Every act that produces death, which is outside of the definition of mere accident, is intentional in the law, whether it grows out of a specified design to take life, or gross carelessness, or from a condition of mind that prompts the possessor of that mind to be engaged in some wrongful or criminal act, which from its nature or the way it is executed may reasonably or probably produce death. United States v. Boyd, 45 Fed. 851.

A man is not answerable criminally, however, for the death of a person, except when it is the natural and probable result of his own act. Reg. v. Horsey, 3 Fost. & F. 287.

And the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case for homicide committed in the perpetration of an unlawful act. Reg. v. Franklin, 15 Cox C. C. 163.

An uniawful act which will render a killing pursuant thereto murder, though done without malice, ought to be such as to tend to the injury of another, either immediately or by necesRex v. Plummer, Kelyng, sary consequences. 109, 12 Mod. 627.

III. Homicide in the commission of felonies.

a. General and common-law rules.

If a person, while doing, or attempting to do, another act, undesignedly kills a man, if the act done or attempted is a felony, the killing is murder, especially if the death is a probable consequence of the act. State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490; Cunningham