52 Am. Rep. 319; Continental Life Ins. Co. v. Webb, 54 Ala. 688; Appeal of Elliott's Ex'rs, S8 Am. Dec. 525, 531, note. The statute provides that a policy of insurance taken out under its provisions, on the husband's life, for the benefit of the wife, shall be payable to her, "in case of her surviving her husband": Code 1876, sec. 2733. It is further declared, in. the following section, that "in case of the death of the wife before the decease of the husband, the amount of the insurance may be made payable after death to her children, for their use, and to their guardian, if under age": Id., sec. 2734. The wife here has not survived her husband, and there is no clause in the policy making the amount of the insurance payable to the children in case of her death before his decease.. It is too plain to admit of argument that the statute does not, proprio vigore, make such policies payable to the children, on the death of the wife before the husband, irrespective of the contract, but it only authorizes such a provision to be incorporated in the contract of insurance, so as to rescue such contract from the taint of fraud, and exempt the proceeds of the policy from liability to creditors or administration. It is equally obvious that by the terms of the statute the wife's interest is contingent on her surviving her husband, and in event of her death before his, it is gone. The New York statute of 1840, from which our own is substantially copied, has been construed by the court of appeals of that state to be enabling, and not declaratory of the common law. In Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395, after holding that a policy upon the life of the husband, for the benefit of the wife, could not be assigned so as to destroy the right of the wife, -a point as to which we intimate no opinion, the following language was used by Denio, C. J.: "By the general rules of law, a policy on the life of one sustaining only a domestic relationship to the insured would become inoperative by the death of such insured in the lifetime of the cestui que vie; or if it could be considered as existing for any purpose after that event, it would be for the benefit of the personal representatives of the insured; but by this act, the contract may be continued in favor of the children of the insured wife after her death." The Connecticut statute is substantially like that of New York and Alabama. In Connecticut Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305, 91 Am. Dec. 725, it was said that while the doctrine of Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395, as to the non-assignability of such policies, seemed reasonable AM. ST. REP., VOL. XIII. - 3 and just, where the husband paid the premiums, yet where the wife paid them from her own separate estate, it was difficult to suggest a reason why she should not have the same power to assign her interest in the policy that she has to assign any other chose in action belonging to her. Nevertheless, it was decided, where she attempted to make such assignment, her interest being contingent on her surviving her husband, and she having died before he did, her interest terminated, and her assignee acquired nothing under the assignment. To the same purport is the reasoning upon which the decision of this court rests in Continental Life Ins. Co. v. Webb, 54 Ala. 688; see also May on Insurance, 2d ed., sec. 391; and Appeal of Elliott's Ex'rs, 88 Am. Dec. 532, note. We hold that upon the death of Mrs. Brasfield her interest in the policy of insurance on her husband's life ceased. Was it continued, by the terms of the statute, for the benefit of her children? Under the most liberal construction of the statute which we feel authorized to give it, we cannot hold that it was. It could lawfully have been made payable to the children upon the death of the wife, but it is sufficient to say that it was not so made. The word "heirs," as used in the policy, must, under all the authorities, be construed with reference to the species of property which is the subject of disposition, whether real or personal; and when used with reference to personal property, it must be held to mean distributees, or next of kin. This is especially so, when associated with the words "executors" and "assigns": Scudder v. Van Arsdale, 13 N. J. Eq. 109; Hodges's Appeal, 9 Ins. L. J. 709 (Pa.); Kaiser v. Kaiser, 13 Daly, 522; Cushman v. Horton, 1 Hun, 601; Gauch v. St. Louis Mut. Life Ins. Co., 88 Ill. 251; 30 Am Rep. 554. And while it is true that the children might be distributees of their mother's estate, they could only be so in the event that her interest in the fund did not terminate on her death. But having terminated, it could not pass to her estate, or distributees, in the order of usual succession. The interest of the distributees, being derived through her, was also contingent on the wife's surviving the husband, which, as we have seen, never happened: Fuller v. Linzee, 135 Mass. 468. We might or might not construe the statute in like manner, if the premiums on the policy had been paid with funds belonging to the wife's separate estate. But in this case they were paid with the husband's funds, and we confine the construction to the case before us. The phraseology of the new code, it will be noticed, has been materially changed in several particulars touching this matter: Code 1886, sec. 2356. There is another feature about this policy which stamps it as fraudulent against creditors, and takes it out of the protection of the statute. It is the interest which Milton Brasfield reserved to himself in the event of his surviving for fifteen years after its issue. It is expressly provided that after the expiration of this number of years, on surrender of the policy, none of its conditions having been violated, the company would pay to Brasfield himself, "his heirs, executors, or assigns," the equitable value of the policy, "as an endowment in cash." It is obvious that the interest of Mrs. Brasfield in this policy was contingent upon her husband's dying before the expiration of fifteen years from date, and had he survived for this length of time, the cash value of the policy could have been claimed by him, free from any trust in favor of the wife: Levy v. Van Hagen, 69 Ala. 17. That a reservation of this kind would be such a locking up of the debtor's property from creditors, for his own beneficial use, as to evince an intent to hinder, delay, or defraud creditors, has never been doubted since the doctrine settled in Twyne's Case, decided near three centuries ago: Benedict v. Renfro, 75 Id. 121; 51 Am. Rep. 429; Murray v McNealy, 86 Ala. 234; 11 Am. St. Rep. 33; Woodall v. Kelly, 85 Ala. 368; 7 Am. St. Rep. 57. The personal representative was not a necessary, although he may have been a proper, party defendant to the bill: Coffey v. Norwood, 81 Ala. 512. There is nothing in the suggestion that the bill was improperly filed in the name of the partnership which had been dissolved. It is described as a late partnership, and the names of the individual members of the firm are set out. This was clearly sufficient. The second ground of demurrer suggests the point that the premiums paid by Milton Brasfield to keep the policy in force were paid with the knowledge and assent of complainants, and such payment was not therefore a fraud on them. The allegations of the seventh paragragh of the bill, bearing on this point, refer for explanation to those set out in the tenth paragraph; and the latter having been stricken out by amendment, the remaining averments are not sufficiently clear and specific to raise the question. We do not therefore consider it. It can be raised by plea or answer to the bill. The extent to which the proceeds of the policy in question are liable to the demand of the complainants is not raised by the demurrer. If any portion of the fund is liable, as we have held it is, the demurrer raising this question was properly overruled. The decree of the chancellor so ruling is affirmed. INSURANCE, LIFE. AS TO THE RESULTS consequent upon the death of a beneficiary before the death of a person whose life is insured, see extended note to Hooker v. Sugg, 11 Am. St. Rep. 721-724; compare Brown's Appeal, 125 Pa. St. 303; 11 Am. St. Rep. 900; Martin v. Stubbings, 126 Ill. 387; 9 Am. St. Rep. 620, and note 629, 630. Where a husband insures his life for the benefit of his wife and children, and the wife dies intestate, before her husband, leaving children, her interest, after payment of her debts, goes to the husband, and at his death to his personal representative: Simmons v. Biggs, 99 N. C. 236. INSURANCE, LIFE. - Assignment of policies of life insurance by an insolvent debtor, in trust for the benefit of his wife, is fraudulent and void as against his creditors: Appeal of Elliott's Ex'rs, 50 Pa. St. 75; 88 Am. Dec. 525, and extended note 530-533, as to life insurance in fraud of creditors. INSURANCE. - INSURANCE COMPANIES V. RADEN. [87 ALABAMA, 811.] AGENCY TO PROCURE INSURANCE IS ENDED when the policy is procured and delivered to the principal, and the agent has no power, after the policy is so delivered, to consent to a cancellation, or to accept notice of an intended cancellation by the insurer. INSURANCE - DUAL AGENCY-NOTICE OF CANCELLATION OF POLICY. - Provision in policy of insurance authorizing the company at any time to terminate the insurance, on notice to that effect to the insured, "or to the person who may have procured the insurance to be taken," is not susceptible of being construed as applicable to a case where the same person acted as agent for both parties in procuring and issuing the policy, and notice was not given to the insured in person. INSURANCE. RATIFICATION OF CANCELLATION OF POLICY BY INSURed will NOT BE PRESUMED from his acceptance, after a loss of a policy procured by the same agent in another company, when it is not shown that all the facts bearing on the case were disclosed to the insured, and that he was fully informed of his legal rights as governed by them; nor will such ratification be presumed from the institution of a suit on the substituted policy, induced by the agent's misrepresentations to the attorneys of the insured. Hewitt, Walker, and Porter, for the appellants. Webb and Tillman, and McIntosh and Altman, contra. SOMERVILLE, J. The bill is filed by the appellee, Mrs. Raden, to restore or reinstate two policies of fire insurance, alleged to have been canceled by fraud or mistake of fact, and to re-establish these instruments as evidences of the liability of the defendant companies by which they were issued, and to incidentally enforce them by the rendition of moneyed decrees for the amount of the loss by fire, not exceeding the amount of the policies, which were each for the sum of $1,250. The court below granted the full relief prayed in the bill, holding both of the policies to be of binding force. A demurrer was filed to the bill, but no assignment of error is based on the action of the court in overruling it. Objection to this ruling is expressly waived, and the only question presented by the record is, whether the insurers, the Niagara Fire Insurance Company, and the Hamburg-Bremen Insurance Company, one or both, are liable on these policies, under the facts disclosed by the evidence. - The complainant's property in Bessemer is shown to have been destroyed by fire on the night of July 19, 1887; and no controversy is raised as to its value, or the amount of the loss. The property was originally insured in the Liverpool, London, and Globe Insurance Company, on July 2, 1887, for two thousand five hundred dollars; but this policy was canceled, and the two policies here in controversy were substituted in its place, by consent of the insured, a week or ten days after this cancellation. The defense to the present suit is, that each of the policies in controversy was canceled on July 18, 1887,- the day before the occurrence of the loss. This is alleged to have been effected by giving notice of such cancellation to one Langley, who is claimed to have been the agent of Mrs. Raden, the insured, and to him was paid the return premium. It is not denied that cancellation was effected, if Langley was the agent of the insured for the purpose of receiving the notice and the return premium. The whole question of cancellation hinges on this one fact. One John G. Smith was the agent of the defendant companies at Birmingham, Alabama. He was also agent for the Liverpool, London, and Globe Insurance Company, in which the first policy was obtained. Flanagan and Langley were insurance agents at Bessemer, Alabama, their exact relations towards Smith not being made very clear by the testimony. The testimony is very conflicting on the point as to whether they acted as agents of Smith, or of Mrs. Raden, or merely as insurance brokers, in procuring the first policy, as to the can |