1Q. B. QUEEN'S BENCH DIVISION.

147
disputes to arbitration. This, however, is not a higher interpre- 1891
tation than was necessarily put on the language of the old Act, BAKEB
under which it was the universal practice to refer these cases, v * '
m
,
and does not mean that in all cases the written agreement to
FlRE AND
. . . LlL''E ASSUIt-
refer must be signed by both parties. I t is quite unnecessary AXCE CO.
to say more as to the decision in Caerleon Tinplate Co. v. A. L. smith, j .
Hughes (1) than that it turned entirely upon the peculiar facts
of the case; for I am convinced that the learned judges who
gave that decision would decide the present case in the same
way that we are deciding it. My brother Charles at chambers
was quite right, and his decision must be upheld.
Appeal dismissed.
Solicitors for plaintiff: Smiles & Co., for Beleher, Cardiff.
Solicitors for defendants : Bell, BrodricJc, <& Gray, for Gray &
Dodsworth, York.
W. J. B.
[IN THE COUET OP APPEAL.] 0. A.
CLEAVER AND OTHERS V. MUTUAL RESERVE FUND LIFE
1S91
ASSOCIATION. X6o
2
8.
3:
Insurance {Life)Insurance in favour of WifeDeath of Insured through
Crime of WifePublic PolicyResulting Trust in favour of Insured's
EstateAction hy Executors Married Women's Property Act, 1882
(45 & 46 Vict. c. 75), s. 11.
The executors of a person who has effected an insurance on his life for the
benefit of his wife can maintain an action on the policy notwithstanding the
fact that the death of the insured was caused by the felonious act of the wife.
The trust created by the policy in favour of the wife under the Married
Women's Property Act, 1882, s. 11, having become incapable of being per-
formed by reason of her crime, the insurance money forms part of the estate of
the insured; and as between his legal representatives and the insurers no
question of public policy arises to afford a defence to the action.
APPEAL from the judgment of the Queen's Bench Division
upon a question of law raised by the pleadings and ordered to
be decided by the Court pursuant to Order xxxiv. , r. 2, before
trial of the issues of fact.
(1) 60 L. J. (Q.B.) 640.
148 QUEEN'S BENCH DIVISION. [1892]
C A. The facts as al l eged by t he pl eadi ngs were as fol l ows:
1891 The st at ement of claim st at ed t hat J ames Maybri ck effected
CLEAVER an i nsurance on his life wi t h t he defendant s for 2000Z., i n favour
MUTUAL ^
u
^
s w
^
e
> Fl or ence El i zabet h Maybri ck. The policy st at ed t hat ,
EESEHVE f
or
tf
ie
consi derat i ons t her ei n ment i oned, t he Mut ual Eeser ve
FUND LIEE
ASSOCIATION. Fund Life Association received James Maybrick as a member of
the said association, and t hat there should be payable to Florence
E. Maybrick, his wife, if living at the time of the death of the
said member, otherwise to the legal representatives of such
member, the sum of 2000Z., within ninety days after receipt of
satisfactory evidence to the association of the death of the said
member. James Maybrick died on May 11, 1889. By his will he
appointed Thomas Maybrick and Michael Maybrick his exe-
cutors. On August 1, 1889, Florence E. Maybrick assigned by
deed to the plaintiff Cleaver the said policy and all her interest
thereunder, and notice of such assignment was duly given to the
defendants before the action. On August 30, 1889, Cleaver was
duly appointed administrator of the property and effects of
Florence E. Maybrick under 33 & 34 Vict. c. 23, s. 9 (the Act
to Abolish Forfeitures for Treason and Felony). The plaintiffs,
as such assignee or administrator and executors respectively
claimed payment of the insurance money.
By the statement of defence it was alleged that James
Maybrick died from poison, intentionally administered to him
by Florence E. Maybrick, and that she was, at the assizes
held at Liverpool on Jul y 25, 1889, tried and convicted upon
an indictment charging her with the wilful murder of James
Maybrick. The sentence of death passed upon Florence
E. Maybrick was afterwards commuted to penal servitude for
life.
The question of law to be decided was whether, if it were
proved that James Maybrick died from poison intentionally
administered to him by Florence E. Maybrick, that would afford
a defence to the action; (a) as against the plaintiff Cleaver as
assignee of the policy from Florence E. Maybrick; (J) as
against the plaintiff Cleaver as administrator under 33 & 34 Vict.
c. 23, s. 9; (c) as against the plaintiffs, Thomas Maybrick and
Michael Maybrick, as executors of James Maybrick.
1 Q. B. QUEEN'S BENCH DIVISION. 149
The Divisional Court (Denman and Wills, J J.) gave judg- C.A.
ment for the defendants. 1891
CLEAVEB
Nov. 2 and 3. Sir Charles Russell, Q.C., and Reginald J. Smith, v.
for the plaintiffs. The executors of James Maybrick are entitled RESEUVE
to recover on the policy. This policy was a perfectly valid policy ASSOCIATION.
in its inception. So the case has no analogy to a case like Prince
of Wales Association v. Palmer (1), which was decided on the ground
that the insurance was a fraud ab initio. I t is clear that the
event happened upon which by the terms of the policy it was .to
become payable. The argument for the defendants is that public
policy may be invoked to relieve the defendants from performing
their contract. But it is contended that no question of public
policy arises as between the executors and the defendants; if any
such question comes in at all, it is at a later stage. The contract
of the defendants was with the insured, James Maybrick. The
right to recover on the policy vests in his executors, and it is
only when it is a question as to the application of the money by
them that considerations of public policy arise. I t is argued by
the defendants that the policy makes the money payable to the
wife only. That is not so. I t must be read by the light of the
Married Women' s Property Act, 1882. The contract was with
James Maybrick, and, there being no trustee appointed under
the 11th section, the policy, and all rights under it, vested in
his legal personal representatives. They hold in trust for the
wife so far only as any trust for her is legally recognisable; but
if the trust for her benefit cannot legally be performed by
reason of a rule of public policy, the money will form part of the
insured's personal estate. Whether that be so or not, however,
does not concern the defendants. They have nothing to do with
the application of the money. There can be no rule of public
policy that prevents the executors from recovering the money
which the defendants contracted with the insured to pay upon
his death, and in respect of which they have received the con-
sideration. The rule of public policy acted upon in Amicable
Assurance Society v. Bolland (2), applies only to cases where the
insured, with whom the contract is made, by his own crime
(1) 25 Beav. 605. (2) 4 Bli. (N.S.) 194 (Fauntleroy's Case).
150 QUEEN'S BENCH DIVISION. [1892]
C. A. causes his death. The rule in such a case is that it is against
189] public policy that the assignees of the contracting party should
CLEAVEU receive benefit from the contract through his crime. That has
MUTUAL
n o
application where the death is caused by the crime of a person
EESKHVK
w
ho is not a party to the contract: Waineivriqlit v. Bland. (1)
ASSOCIATION. [They also cited Horn v. Anglo-Australian Insurance Co. (2);
Moore v. Woolsey. (3) ]
Sir E. Clarice, 8.G., and Hextall, for the defendants. This
insurance was obviously effected under s. 11 of the Married
Women's Property Act, 1882, and it gives the whole benefit of
the insurance-money to the wife, if she survives the insured. I t
has been held in such a case that the insurance money goes to
the wife, not the husband's trustee in bankruptcy : Holt v.
Everall (4). I t is against public policy that a person should profit
through his or her own criminal act. I t was held in Amicable
Assurance Society v. Bolland (5) on that principle that the
assignees of a man who died through his own crime by the hands
of justice could not recover on a policy of insurance upon his
life. The policy must be read as subject to an implied exception
of the case where the insured dies by the hands of his wife. The
legal interest in the policy may be vested in the executors ; but
under the Married Women' s Property Act, they would be
trustees of the money for the wife: see Be Dash; King v.
Barley. (6) The Court will not allow her through other persons
to obtain a benefit which it is against public policy that she
should obtain. By the terms of the policy and the 11th section
of the Married Women's Property Act, the wife is the only
person interested in the policy money. The trust in her favour
cannot be said to have been performed. I t remains unperformed.
But the money cannot be recovered by her or any person suing
as her trustee, because the death of the husband was caused by
her criminal act. The case is similar in principle to the case
where a man insures his own life and then commits suicide
feloniously.
Sir Charles Bussell, Q.C., in reply.
Cur. adv. vult.
(1) 1 Mood. & Bob. 481. (4) 2 Ch. D. 266.
(2) 30 L. J. (Ch.) 511. (5) 4 Bli. (N.S.) 194.
(3) 4 E. & B. 243. (6) 57 L. T. (N.S.) 219.
1Q. B. QUEEN'S BENCH DIVISION. 151
Dec. 8. LORD ESHEE, M.E. In this case the executors of the ' C. A.
will of James May brick in that capacity sue the defendants upon a 1891
policy of life insurance granted by them to the testator. James ~\ ~
Maybrick is dead, and the. defendants admit that during his v.
lifetime they granted him the policy ; but they insist that they RESERVE
are not liable to pay the sum insured to his executors, because ^"JJ^QJ^IQ^-
they would hold it in trust for the wife of James Maybrick, and
his death was occasioned by the criminal act* of his wife, that is
to say, she murdered him. ' They say that it.would be contrary
to public policy that under such circumstances they should be
compelled to pay this money to the plaintiffs, and therefore that
public policy excuses them from that which would otherwise be
the due fulfilment of their contract. No doubt there is a rule
that, if a contract be made contrary to public policy, or if the
performance of a contract would be contrary to public policy,
performance cannot be enforced either at law or in equi t y; but
when people vouch that rule to excuse themselves from the
performance of a contract, in respect of which they have received
the full consideration, and when all that remains to be done
under the contract is for them to pay money, the application of
the rule ought to be narrowly watched, and ought not to be
carried a step further than the protection of the public requires.
This policy of insurance is in a somewhat peculiar form, which
I suppose is of recent invention. I t does not state on the face
of it with whom it is made, but states that for the considerations
therein mentioned the defendants make the insured a member,
and promise that on his death the policy money shall be pay-
able to Florence Maybrick his wife, if then living, otherwise to
his legal personal representatives. I will first consider what the
legal effect of such a policy would be apart from the Married
Women's Property Act, and if no such act had been passed.
The contract is with the husband, and with nobody else. The
wife is no party to it. Apart from the statute, the right to sue
on such a contract would clearly pass to the legal personal
representatives of the husband. The promise is one which
could only take effect upon his death, and therefore it must be
meant to be enforced by them. The condition on which the
money is to become payable is the death of James Maybrick.
152 QUEEN'S BENCH DIVISION. [1892]
C. A. There is no exception in case of his death by the crime of any
1891 other person, not even by the crime of the wife. Therefore the
CLEAVEU condition expressed by the policy, as that on which the money
MUTUAL *
S
^ become payable, has been fulfilled. Consequently, so far,
RESEHVE
arj
(i jf
n 0
question of public policy came in, there would be no
FUND LI FE
U
. .
ASSOCIATION-, defence to an action against the defendants by the executors of
Lord Esher,M.R. James Maybrick. Apart from the statute, what would be the
effect of making the money payable to the wife ? I t seems to me
that as between the executors and the. defendants it would have
no effect. She is no party to the contract; and I do not think
that the defendants could have any right to follow the money
they were bound to pay and consider how the executors might
apply it. I t does not seem to me that, apart from the statute,
such a policy would create any trust in favour of the wife.
James Maybrick might have altered the destination of the
money at any time, and might have dealt with it by will or
settlement. If he had done so, the defendants could not have
interfered. I think that, apart from the statute, no interest
would have passed to the wife by reason merely of her being
named in the policy; and, if the husband wished any such
interest to pass to her, he must have left the money to her by
will or settled it upon her during his life, otherwise it would
have passed to his executors or administrators. The question
might arise how such a policy would have to be treated at law,
apart from the statute. Supposing such a policy were made in
favour of some person other than the person effecting the
insurance, and not being any of the persons named in s. 11 of
the Married Women's Property Actas, for instance, a nephew
or nieceand supposing that the person, in whose favour the
policy had been made, or to or upon whom the insurance money
had been left by will or settled, became the criminal cause of
the death of the insured, it would then be necessary to consider,
independently of the statute, what the effect of the policy
would be, and whether the insurance company could vouch
this doctrine of public policy as a defence to the action.
That the person who commits murder, or any person claiming
under him or her, should be allowed to benefit by his or her
criminal act, would no doubt be contrary to public policy.
1Q. B. QUEEN'S BENCH DIVISION. 153
But this doctrine' ought not to be stretched beyond what is c. A..
necessary for the protection of the publ i c; and, if the matter 1891
can be dealt with so that such person should not be benefited, I CLEAVER ~
do not see any reason why the defendants in such a case should .., "
be allowed to say, though they might have received premiums RESERVE
perhaps for thirty years and still retained the same, that public ASSOCIATION.
policy forbade their paying the sum of money which they had
Lord E9her> M
.
R
,
contracted to pay. I t seems to me that this question of public
policy does not arise as between the executors and the defend-
ants. The question arises at a later stage. When the money is
in the hands of the executors, the question arises how, under the
circumstances, they must deal with it. If, in consequence of
the death of the insured having been caused by the crime of a
person in whose favour the policy is expressed to be made, or to
or upon whom the policy-money is left by will or settled, such
person is not entitled to insist on its being paid to him, but he
nevertheless claims the money from the executors, they may
then vouch the doctrine of public policy, and may say that by
reason of it such person has forfeited his or her right to the
money. What would be the consequence of t hat ? The exe-
cutors cannot be entitled to keep the money themselves. I t
seems to follow as a necessary result that they would hold it
as part of the estate of the testator. If the Married Women' s
Property Act had not been passed, or if the policy had made the
money payable to some person other than the insured's wife or
children, I should say that, on the true construction of the
policy, the only persons who could claim under it, and give a
valid receipt for the money insured, were the executors of the
insured; that as between them and the insurers the rule of
public policy referred to could have no application, and, there-
fore, that the insurers must pay the money to the executors, and
it would be for them to deal with it subject to the rules of public
policy; but the insurers would have nothing to do with the
application of the money after they had paid it. That would be
a matter entirely between the executors and any person, claiming
the money under any will or settlement made by the insured.
But this case must be considered further with reference to
the Married Women' s Property Act, 1882. Sect. 11 of that Act
VOL. I. 1892. M 2
154 QUEEN'S BENCH DIVISION. [1892]
C. A. provides that a policy of insurance effected by any man on his
1891 own life, and expressed to be for the benefit of his wife or of his
CLEAVEU children, or of his wife and children, or any of them, shall create
MUTUAL
a
*
r u s
t i
n
favour of the objects therein named, and the moneys
RESERVE payable under such policy shall not, so long as any object of the
ASSOCIATION, trust remains unperformed, form part of the estate of the insured
LordEsher.M.R. or be subject to his debts. Therefore, it is not provided that
such moneys shall never form part of the insured's estate, but
only that they shall not form part of his estate so long as any
object of the trust remains unperformed. That gives rise to t he
necessary implication, that, when no object of the trust remains
unperformed, the money is to. form part of his estate. Then
it is provided that " t he insured may, by the policy or any
memorandum under his hand, appoint a trustee or trustees of the
moneys payable under the policy, and, in default of any. such
appointment of a trustee, such policy shall, immediately on its
being effected, vest in the insured and his legal representatives
in trust for the purposes aforesaid." Under this provision, no
trustee having been appointed, the policy vests in the executors
who are trustees for the purposes of the trust in favour of the
wife, but only as long as the object of the trust remains unper-
formed. When the object of the trust no longer remains unper-
formed, the policy is to form part of the estate of the insured.
Suppose the wife had died before the husband, the defendants
could not have said that they would not continue the policy or
receive any more premiums, and that the policy was at an end.
I n that case the performance of the trust for the wife would have
become impossible. I take it that the proper reading of the
section is that, if the performance of the object of the trust has
become impossible, it must be treated as if it had been per-
formed ; and, therefore, there would in such case be no object of
the trust remaining unperformed. Applying the rule of public
policy to this, construction of the section, the wife here has
by her crime rendered the trust in her favour incapable of per-
formance. I t must, therefore, be treated as if it did not exist;
an object that cannot be performed cannot, for the purposes of
the section, be said to remain unperformed. Then, by necessary
implication, according to the section, the policy forms part of
1Q. B. QUEEN'S BENCH DIVISION. 155
the insured's estate. As I have said, the rule of public policy is C. A.
not to be carried further than is necessary to ensure its object. 1891
On this construction of the section, it is unnecessary, under these CLEAVER
circumstances, to vouch the rule as between the executors and the ^i
v
^
UAh
defendants. The defendants must pay the money to the execu- RESERVE
T 1' UNDLIFE
tors, and then it will be for the executors to deal with it according ASSOCIATION.
to their duty as executors. They would be trustees of it for the LordEsher.M.R.
wife if she had not forfeited i t ; but her interest being forfeited,
it forms part of the insured's estate. If there are creditors, it
will go to them so far as may be necessary to satisfy their
claims. If anything is left, it will go to t he children of the
insured if there are any. The rule of public policy in such a
case prevents the person guilty of the death of the insured, or
any person claiming through such person, from taking the
money; but t he children would not claim through the mother,
but through the father. What is there against public policy
in such a result ? I think that, if the Court were to deprive the
children of the insured, who do not claim through the mother, of
the insurance-money under such circumstances, on the ground of
public policy, it would be a gross injustice. Any one claiming
through the wife is shut out by the rule of public policy ; so t hat
any assignee from her, or other person claiming through her,
cannot recover the money; but the rule of public policy does
not apply as between the executors representing the estate of
the insured and the defendants, and, therefore, their rights and
liabilities must be governed by the contract. That contract
does not make any exception in the case of the death of t he
insured being caused by the crime of any other person. Conse-
quently, I think that the suggested defence fails so far as the
executors of the insured are concerned. So far as regards the
assignee claiming through the wife, he has no title, and has not
made out his claim. For these reasons, I think that the decision
of the Divisional Court was wrong, and that the appeal should be
allowed.
FKY, L. J. Of the questions stated by the order of the master
in this .case one only has been argued before usnamely,
whether the murder of James Maybrick by his wife Florence, if
M 2 2
156 QUEEN'S BENCH DIVISION. [1892]
C. A. proved, would afford a defence to this action brought by the exe-
1891 cutors of James Maybrick. This question has been answered in
CLEAVEH the affirmative by the Divisional Court, and the judgment has
MUTUAL t een maintained before us by the same line of argument as was
BESERVE adopted by the Court, which is shortly as follows: The executors
FUND LI FE
A J
.
J
ASSOCIATION, of James Maybrick, it is said, are suing as trustees for Florence,
Fry, L.J. and can have no better title than their cestui que t rust : it is
against public policy to allow a criminal to claim any benefit by
virtue of his crime; she is, therefore, disentitled to claim the
proceeds of the policy in question, and the executors, who are
her trustees, are equally disentitled. This line of argument
appears to me equally untenable whether there be or be not such
a principle of public policy as that stated. If there be not, there
is no objection to the action; if there be, it disqualifies Florence
Maybrick from asserting that she is the cestui que trust of the
executors, and negatives the proposition that the plaintiffs are
suing for her benefit. They may be suing for their own benefit
or for the benefit of the estate of the deceased or of some other
person; but if the principle be valid, they cannot possibly be
suing for her benefit.
These observations are to my mind sufficient to dispose of
the case; but, considering its importance and the fulness with
which it has been argued, I shall descend somewhat more
on detail. The principle of public policy invoked is in my
opinion rightly asserted. I t appears to me that no system
of jurisprudence can with reason include amongst the rights
which it enforces rights directly resulting to the person asserting
them from the crime of that person. If no action can arise from
fraud, it seems impossible to suppose that it can arise from
felony or misdemeanour. , I t may be that there is no authority
directly asserting the existence of the principle; but the decision
of the House of Lords in Fauntleroy's Case (1) appears to proceed
on this principle, and to be a particular illustration of it. This
principle of public policy, like all such principles, must be
applied to all cases to which it can be applied without reference
to the particular character' of the right asserted or the form of its
assertion. In Fauntleroy's Case (1) it was held to prevent the
(1) 4-Bli. (N.S.) 194.
1Q. B. QUEEN'S BENCH DIVISION. 157
assignees of a forger from claiming the benefit of a policy on his C. A.
death at the hands of justice by reason of his forgery. I t would 1891
equally apply, it appears to me, to the case of a cestui que trust CLEAVEU
asserting a right as such by reason of the murder of the prior jf
UT
'
UAL
tenant for life or of the assured in a policy: and it must be so KKSEBVB
. . . T i i F UND L I F E
far regarded in the construction of Acts of Parliament that ASSOCIATION.
general words which might include cases obnoxious to this FryTiTj-
principle must be read and construed as subject to it.
James Maybrick insured his life in the policy in question in
the year 1888, and by the proposal which was made part of the
policy he expressed the .policy to be effected for the benefit of
his wife, and in the policy itself she is named as the payee of the
policy-moneys in the event, which happened, of her surviving
her husband. Independently of the Married Women's Property
Act, 1882, the effect of this transaction was, in my opinion, to
create a contract by the defendants with James Maybrick that
the defendants would, in the event which, has occurred, pay
Florence Maybrick the 2000Z. assured; it would be broken by
non-payment to her; but the cause of action resulting from such
breach would vest in the executors of the assured, and not in the
payee. She was, independently of the statute, a stranger to the
contract; it might have been put an end to by the contracting
parties without her consent, and the breach of it would have
given her no cause of action against any one.
The 11th section of the Married Women' s Property Act, 1882,
deals with policies like the present, effected for the expressed
benefit of a wife, and, amongst other things, contains these
alternative provisions. I t enables the insured to appoint a
trustee or trustees of the moneys payable under the policy ; in
default of such appointment, it provides that the policy shall vest
in the assured and his legal personal representatives. I t is impos-
sible to consider the insertion of the name of Florence Maybrick
in the policy as the nomination of her as trustee for herself;
there is no nomination of any other t rust ee; consequently the
statute applied, and, in spite of her nomination as payee, vested
the policy in James Maybrick and his legal personal represen-
tativesnamely, the plaintiffs. The section in question goes
further, and declares the trusts on which such a policy is to be
158 QUEEN'S BENCH DIVISION. [1892]
0. A. held. According to its language, the effecting of this policy
1891 created a trust in favour of the object namedthat is, Florence
CLEAVEK Maybrickand the section enacted that the moneys payable
MUTUAL under it should not, so long as any object of the trust remained un-
KESERVE performed, form part of the estate of the insured. Now, the trust
FUND LI FE
r r
ASSOCIATION, thus created by statute, and the language of the statute creating
Fry, L.J. it, must, in my opinion, be both subject to the principle of public
policy which I have statednamely, the trust is one which can-
not be enforced by a murderess of her husband, and the language
of the statute must be read as if 'it contained an exception of
such a case. Consequently the trust which the statute was in-
tended to create has either never arisen or it has, by the act of
the cestui que trust, become incapable of enforcement. If the
executors of the insured were in such a case as the present to
refuse to sue the office, it is inconceivable to me that the mur-
deress could maintain >a suit against them to enable her to use
their names; or,- in fact, that she could be allowed to sue in any
way in aCour t of Equity as cestui que trust of a fund which she
had created by her crime. - But if the executors are not trustees
for Florence Maybrick,-for whom are they' trustees?' 'This ques-
tion seems to admit of' an easy answer. Whenever' there is
property produced by the payments of A. which is held in trust
for B., and that-trust fails or is satisfied, a resulting trust arises
for A. or his estate. This resulting trust is recognised by the
section of the Act in question, because it takes the property out
of the estate of the insured so long as any object of the trust
remains unperformed: language which implies, if it does not
assert, that when no object of the trust remains to be performed
the policy-moneys form part of the estate of the insured. If it
be suggested that this view only removes the difficulty a step
further off, and that the possible right of the wife under her
husband's will or intestacy forms an objection to the action by
the executors, the reply is obviousthat the principle of public
policy must be applied as often as any claim ' is made by the
murderess, and will always form an effectual "bar to any benefit
which she may seek to acquire as the result of her crime. ' It
follows from the view which I -have expressed that I think it
needless to inquire what the particular trusts may be on which
1Q.B. QUEEN'S BENCH DIVISION. 159
the convict's property is held by the administrator appointed C. A.
under the statute of 1870. He took only the property which 1891
Florence Maybrick had in the moneys in question ; and as she CLEAVEE
took nothing, in my judgment, by reason of her crime, he takes MUTUAL
nothing likewise. RBSEBVB
. FUND LI FE
I t may be argued that having regard to the fact that ASSOCIATION.
Mrs. Maybrick is the prime object of the insurance, and that Fry, L.J.
she is named on the face of the policy as payee, the contract
of insurance must be taken to imply an exception of the case of
the death of the insured when caused by the crime of the person
so named; and it is suggested that Fawitleroy's Case (1) in the
House of Lords supports this contention. This argument does
not appear to me to be tenable. The policy is effected under,
and therefore affected by, a statutory enactment, the effect of
which in the present case is to vest the policy in. the executors
of the insured as trustees in the event of Mrs. May brick's being
entitled to claim in trust for her, and in every other event in
trust for the estate of James Maybrick;just in' the same way as
if before the statute a policy had been' t aken out by James
Maybrick, and he had by a separate instrument declared the like
trusts of it. Now, it is to my mind illogical to make the crime
of one cestui que trust a bar to the claim of another, or of the
trustees for that other cestui que t rust ; and if the supposed
defence were to prevail we should so hold. If Mrs. Maybrick
had inflicted a mortal, but not immediately fatal, wound on her
husband, had then committed suicide, leaving him surviving,
and his executors had claimed on his death, it appears to me
that the crime which caused his death would have furnished no
defence. In a word, I think that the rule of public policy should
be applied so as to exclude from benefit the criminal and all
claiming under her, but not so as to exclude alternative or inde-
pendent rights. In Fauntleroy's Case (1) the plaintiffs were the
assigns of the criminal, and were claiming through him. I n the
present case the plaintiffs are the assigns in law of the innocent
husband, and are claiming through him. The authority, there-
fore, of that case goes to shew that neither Florence Maybrick
nor the administrator of her estate, who claims through her, can'
(1) 4 Bli. (N.S.) 194.
160 QUEEN'S BENCH DIVISION. [1892]
C. A. t ake any benefit. But t hat appears to me t o t hrow no i mpedi -
1891 ment i n t he way of a sui t by t hose who cl ai m wi t h clean hands
OLEAVEU t hemsel ves and as assigns of t he i nnocent i nsured. I n a word,
MUTUAL ^ appears t o me t hat t he cri me of one person may pr event t hat
RESERVE person from t he assertion of what would otherwise be a r i ght , and
FUND LIEE . .
. ASSOCIATION, may accelerate or beneficially affect the rights of third persons,
Fry, L.J. but can never prejudice or injuriously affect those rights. I n
my opinion, therefore, public policy prevents Florence Maybrick
from asserting any title as cestui que trust of this fund, and
thereby brings into operation the resulting trust in favour of the
estate of the insured, and so enables the executors to maintain
an action as plaintiffs without any taint derived from the crime
committed by Florence Maybrick.
LOPES, L.J. The action is brought by the personal represen-
tatives of James Maybrick, and the question we have to consider
is whether the crime of his wife, Florence Maybrick, incapacitates
them from recovering upon the policy of insurance effected by
the husband with the defendants the amount of the policy-money,
which, by the terms of the policy, is made payable to the wife if
she survive the husband. The contract was between the hus-
band and the defendants. The husband died by the criminal
act of the wife. The right of action upon the contract passes to
the legal personal representatives upon his death. I do not
doubt that the principle of public policy would prevent the wife
from recovering the amount of the policy money from them, and
so reaping benefit from her crime; because no trust can be
enforced which contravenes the law. The simple answer to the
defence set up is that the executors are entitled to say that they
are suing for the benefit of the estate of the deceased husband;
and, therefore, no question of public policy arises. I t appears
to me clear that such would have been the case, if the Married
Women' s Property Act, 1882, had not been passed. I agree with
the Master of the Eolls and Lord Justice Fry, that the effect of
the section of that Act which has been referred to is to create
a resulting trust in favour of the husband's estate which takes
effect when by reason of the crime of the wife the trust in her
favour becomes incapable of being performed in consequence of
1Q. B. QUEEN'S BENCH DIVISION. 161
the rule of public policy. The trust in favour of the wife must C. A.
then be regarded as struck out, and, that being so, a resulting 1891
trust in favour of the husband's estate arises. For these reasons, CLEAVER
I agree that the appeal should be allowed. '
M
*
Appeal allowed. ]?UND LIFE
ASSOCIATION.
Solicitors for the plaintiffs: Sh'arpe, Parkers, & Co., for Cleaver,
Eolden, & Co.
Solicitors for the defendants: Robinson & Stannard.
E. L.
RADCLIFFE v. BARTHOLOMEW. Nov. 9.
JusticesJurisdictionTime within which Complaint must be made
12 & 13 Vict. c. 92, s. 14.
By s. 14 of the Act for the Prevention of Cruelty to Animals (12 & 13
Vict. c. 92), every complaint under the provisions of the Act is to be made
" within one calendar month after the cause of such complaint shall arise."
On June 30 an information was laid against the appellant in respect of an act
of cruelty alleged to have been committed by him on May 30. An objection
to the jurisdiction of the justices having been taken, on the ground that the
complaint had not been made within one calendar month after the cause of
complaint had arisen :
Held, that the day on which the alleged offence was committed was to be
excluded from the computation of the calendar month within which the com-
plaint was to be made; that the complaint was therefore made in time, and
the justices had jurisdiction to hear the case.
CASE stated by justices.
An information under 12 & 13 Vict. c. 92, s. 2, was laid on
June 30, 1891, by the respondent against the appellant, charging
him with ill-treating certain sheep on May 30, 1891. By s. 14
of that Act it is enacted that " every complaint under the provi-
sions of this Act shall be made within one calendar month after
the cause of such complaint shall arise." At the hearing before
the justices a preliminary objection was taken on behalf of the
appellant that, as the offence was alleged to have been com-
mitted on May 30 and the information was not laid until June 30,
the complaint had not been made " within one calendar month "
after the cause of complaint had arisen, and that therefore the
justices had no jurisdiction to hear the case. The justices