A life insurance company's liability on a policy is not canceled because the beneficiary named in the policy feloniously kills the insured. 3. PROPERTY 4-LIFE INSURANCE-PROCEEDS AS PERSONALTY. 2. INSURANCE 448 LIFE INSURANCE-1 suit was issued by the Royal Indemnity ComMURDER OF INSURED BY BENEFICIARY-CAN-pany on the 4th day of December, 1914, and CELLATION OF LIABILITY. was in full force and effect at the time of the death of said R. H. Murchison. ther shown by the petition of plaintiffs that said policy provided that upon the death of said R. H. Murchison, the proceeds thereof should be paid to the said Margurite Murchison as sole beneficiary. It was further alleged in the petition that the said R. H. Murchison met his death at the hands of his The proceeds of a life insurance policy is in the nature of, or constitutes, personal prop erty. 4. DESCENT AND DISTRIBUTION 51-PROCEEDS OF INSURANCE-CAUSING DEATH OF INTESTATE. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 2465, providing that no conviction shall work corruption of blood or forfeiture of estate, and that there shall be no forfeiture by reason of death by casualty, and article 2462, providing that in the absence of any child or children or their descendants, the whole of the personal estate of one dying intestate shall pass to his surviving wife, where a wife, the beneficiary of her husband's life insurance policy, feloniously killed such husband, who died intestate and without children, to accelerate the due date of the policy and obtain the insurance money, the liability of the insurance company to the husband's estate not being canceled, and the proceeds of the policy being personalty, the wife was entitled to them. Appeal from District Court, Angelina County; L. D. Guinn, Judge. Suit by G. R. Murchison and others against Margurite Murchison and another. From judgment of dismissal, plaintiffs appeal. Af firmed. Mantooth & Collins, of Lufkin, for plaintiffs in error. Denman & Thomas and I. D. Fairchild, both of Lufkin, Blount & Strong, of Nacogdoches, and W. J. Townsend, of Austin, for defendants in error. HIGHTOWER, C. J. This suit was filed in the district court of Angelina county by G. R. Murchison, Dailey Murchison, Ross Murchison, Jr., and Dora Faris, the latter being joined pro forma by her husband, W. B. Faris, as plaintiffs, against Margurite Murchison and Royal Indemnity Company as defendants; the purpose of the suit being to recover a judgment against the Royal Indemnity Company on a policy of accident insurance issued by said company upon the life of one R. H. Murchison. said wife, Margurite Murchison, who feloniously killed and murdered him with the intention and for the purpose of securing and obtaining the money which it was provided by the terms of said policy should be paid to her upon the death of said R. H. Murchison. It was then alleged, substantially, that because of the fact that the said Margurite Murchison did feloniously kill and murder the said R. H. Murchison, she forfeited all right and interest that she otherwise might have had in and to the proceeds of said policy of insurance as the beneficiary named therein; and, further, it was substantially alleged that because of the fact that the said Margurite Murchison felonious ly killed and murdered said R. H. Murchison, she was not only prevented from claiming and recovering from the Royal Indemnity Company the amount of money stipulated to be paid her as beneficiary in said policy, but also that she thereby forfeited any and all right and interest in and to the proceeds of said policy in the hands of said Royal Indemnity Company, and was not, in law, entitled to have said proceeds or any part thereof under the law of descent and distribution of this state, but that plaintiffs, as the father, brothers, and sister of said R. H. Murchison, by reason of such relationship to him, immediately upon the death of said R. H. Murchison became and were entitled to recover of said Royal Indemnity Company the proceeds of said policy still in its hands, as the heirs and next of kin of the said R. H. Murchison. The petition is quite lengthy, and for the purposes of this opinion it is entirely unnecessary to quote the same in full, and we think that the foregoing substantial statement of the material allegations will be sufficient for the disposition here. It was alleged in the petition that G. R. Murchison was the father, and Dailey Murchison and Ross Murchison, Jr., were the brothers, and said Dora Faris the sister, of Both the defendants were served and anthe said R. H. Murchison, who, it was alleg-swered, and each interposed a general demured, died on the 14th of April, 1915; and it rer to the plaintiffs' petition, and also each was further alleged that the said Margurite interposed certain special exceptions, which Murchison was the wife of said R. H. Murchison at the time of his death. It was further alleged that the said R. H. Murchison left no outstanding' debts at the time of his death, and that there was never any administration upon his estate, nor any necessity for any. It was further alleged that the said R. H. Murchison left no child or children surviving him. It was further alleged that the policy of insurance made the basis of the it is unnecessary to here mention. The trial court sustained the general demurrer interposed by each of the defendants, and some of the special exceptions, and the plaintiffs having declined to amend, their petition was ordered dismissed, and from that order and judgment of the trial court this appeal has been prosecuted. [1] The action of the trial court in sustaining the general demurrers of defendants has In a beneficiary in any character of insurance policy to recover life insurance money upon the contract itself, after having feloniously killed the insured with the intention and for the purpose of accelerating the due date of such policy and obtaining possession of such money, would not be against the public policy of this state, regardless of what the public policy of some other states may be, as declared by their courts. been duly assigned as error in this court, | us to subscribe to the doctrine that to permit and such assignments and propositions there under raise two questions only for the consideration of this court. The first question is this: Can one who is named as sole beneficiary in a life insurance policy, and who feloniously kills the insured for the purpose and with the intention of accelerating the due date of such policy and collecting the money to be paid to such beneficiary thereunder, recover the proceeds of such policy against the company issuing same, in accordance with the provisions of the policy? other words, can such beneficiary, under such circumstances, recover upon the contract of insurance? The Supreme Court of this state has never decided this question, in so far as we have been able to ascertain, but we are not left in the dark in the matter, because we find that no less eminent authority than the Supreme Court of the United States long ago decided this very question, and the opinion of that great court will be found in the case of New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 600, 6 Sup. Ct. 881, 29 L. Ed. 1000. In that case we find this expression in the opinion of the court: "It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired." It has been a long time, it is true, since the Supreme Court of the United States used the language just quoted, but in all the years since then that court seems never to have changed its views on the question. Innumerable cases from that court might be cited, more or less relevant on the point, but it would serve no useful purpose to here mention them, because a decision of the question could not be more squarely made by any court, nor could stronger or sounder reason than is there announced be found. See, also, Schmidt v. Life Ins. Association, 112 Iowa, 41, 83 N. W. 800, 51 L. R. A. 141, 84 Am. St. Rep. 323; Filmore v. Life Ins. Co., 82 Ohio St. 208, 92 N. E. 26, 28 L. R. A. (N. S.) 675, 137 Am. St. Rep. 778; Anderson v. Life Ins. Co., 152 N. C. 1, 67 S. E. 53; Supreme Lodge v. Menkhausen, 209 Ill. 277, 70 N. E. 567, 65 L. R. A. 508, 101 Am. St. Rep. 239; Order of Columbus v. Fuqua, 60 S. W. 1020; Life Ins. Co. v. Shane, 98 Ark. 132, 135 S. W. 837. It is the contention of appellees in this case that because article 1, section 21, of the Constitution of this state provides that "no conviction shall work forfeiture of estate," and because article 2465 of the Revised Statutes of this state provides, substantially, the same, it should be held by this court that the people of this state, both by their representatives in the constitutional convention and in the legislative halls, have declared the public policy of this state to be in favor of permitting such a beneficiary to recover upon the terms of the contract of insurance. We cannot accept the correctness of this contention by counsel. We therefore hold that if the right of Margurite Murchison to the proceeds of the policy in question depended upon the provisions of the policy itself, as a contract, then we would be compelled to hold, and without any reluctance whatever, that the trial court was in error in sustaining the general demurrer of either of the appellees. [2-4] The second question, however, for determination, in legal contemplation is this: Assuming the truth of the allegation in plaintiffs' petition, to the effect that Margurite Murchison feloniously killed and murdered R. H. Murchison for the purpose of sooner obtaining the insurance money on his life, did that fact deprive her of the right as a surviving wife to take the proceeds of the policy after his death, as against the father, brothers, and sister of R. H. Murchison, the latter having left no child or children? This question necessitates a consideration of several articles of our statutes on the subject of descent and distribution: Article 2465, Vernon's Statutes, provides: "No conviction shall work corruption of blood or forfeiture of estate, nor shall there be any forfeiture by reason of death by casualty. Article 2469 provides: These are but a few of the authorities which tion by death, all property belonging to the "Upon the dissolution of the marriage relaannounce the rule that it would be against community estate of the husband and wife sound public policy to permit any beneficiary shall go to the survivor, if there be no child in a life insurance policy, who should feloni- or children of the deceased or their descendants; ously take the life of the insured, to recover but if there be a child or children of the de ously take the life of the insured, to recover ceased, or descendants of such child or children, money due under the terms of the policy; then the survivor shall be entitled to one-half of and without discussing the question further, said property, and the other half shall pass to this court is perfectly satisfied with the rule such child or children, or their descendants. as announced in those cases, and in so far as this court is concerned, nothing short of an express and unmistakable declaration in the Constitution or statutory law of this state, or a decision necessary upon the very point by the Supreme Court of this state, would cause * * Article 2462 provides: "Where any person having title to any estate intestate as to such estate, and shall leave a or inheritance, real, personal or mixed, shall die surviving husband or wife, the estate of such intestate shall descend and pass as follows: "1. If the deceased have a child or children, or their descendants, the surviving husband or wife, shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants. if it has, that it has failed to correct this great injustice, as it seems to us, still, in. view of the plain provision of the statute quoted, and what seems to us to be an unbroken line of decisions by courts of last resort in other states on the question, we are constrained to hold that Margurite Murchison, even though she did feloniously take "2. If the deceased have no child or children, the life of her husband for the purpose of or their descendants, then the surviving husband or wife shall be entitled to all the personal sooner collecting the insurance money upon estate, and to one-half of the lands of the intes- his life, did not forfeit her right thereto, as tate, without remainder to any person, and cast upon her by the statutory law of this the other half shall pass and be inherited ac-state. Hill v. Noland, 149 S. W. 288; Owens cording to the rules of descent and distribution: Provided, however, that if the deceased have V. Owens, 100 N. C. 246, 6 S. E. 794; Carpenneither surviving father nor mother, nor sur-ter's Estate, 170 Pa. 203, 32 Atl. 637, 29 L. viving brothers and sisters, or their descendants, R. A. 145, 50 Am. St. Rep. 765; Shellenberger then the surviving husband or wife shall be entitled to the whole of the estate of such intes- V. Ransom, 41 Neb. 631, 59 N. W. 935, 25 tate." L. R. A, 564; McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, 3 L. R. A. (N. S.) 726, 115 Am. St. Rep. 233, 7 Ann. Cas. 973. It is conceded by both parties to this appeal that the insurance company's liability on the policy in question would not be canceled because of the fact that Margurite Murchison, the beneficiary named in the poli Having reached the conclusion that the appellee Margurite Murchison, upon the death of R. H. Murchison, became entitled to the whole of the personal estate left by him, to the exclusion of the appellants herein, it necessarily follows that there was no error on the part of the trial court in sustaining the general demurrer interposed by each of the appellees and its judgment is therefore affirmed. KING, J., not sitting. DURFEE v. CRAWFORD et al. (No. 352.) JUDGMENT 456(1)-SETTING ASIDE-TIME Where attorney for several plaintiffs omitted one of them from the amended petition and abandoned her without her knowledge, she could the expiration of the term of its rendition, if not have the judgment set aside in equity after she had knowledge of the judgment before the expiration of such term, in the absence of fraud of adverse parties. in question, feloniously killed R. H. Murchison, the insured, and such is the law; and it is further conceded and is the law that the proceeds of the insurance policy in question is in the nature of personal property, or constitute personal property. Therefore, since R. H. Murchison died intestate, as disclosed by the petition, and since it is the law that the liability of the insurance company was not canceled, even if the beneficiary, Margurite Murchison, did murder the insured, R. H. Murchison, but since, as we hold, Margurite Murchison, by reason of her felonious act in taking the life of her husband, deprived herself of taking the proceeds of this policy as the beneficiary named therein, then the proceeds of this policy became payable, under the law, to the estate of R. H. Murchison. And since, by article 2462 above, in the absence of any child or children of R. H. Murchison, or their descendants, the whole of the personal estate of R. H. Murchison passed to his surviving wife, Margurite Murchison, she became entitled to the same under the statute itself to the exclusion of the appellants in this case. It seems to be held by the courts in all the states that where a statute of descent and distribution is plain and unambiguous in prescribing how property shall descend and vest upon the death of its owner, such statute must be given effect by the courts, regardless of the fact that the death of the owner was intentionally caused by one to whom, under the statute, his property is made to descend and vest, and there can be no doubt that article 2462 is plain and posi-ing brought by her for the purpose of settive, and leaves nothing for construction by the courts as to how property of a decedent shall descend and vest in this state; and while it is to be regretted that the Legislature of this state has never discovered, or Appeal from District Court, Harris County; Wm. Masterson, Judge. Suit by Sophie Durfee against Duke Crawford and others. Judgment for defendants, and plaintiff appeals. Affirmed. Stanley Thompson, of Houston, for appellant. Barkley & Weems, of Houston, for appellees. BROOKE, J. This is a suit begun in the district court of Harris county in the FiftyFifth judicial district of Texas by appellant, Sophie Durfee, in an equitable proceed ting aside a judgment in cause numbered 64,963 on the docket of said court, which said suit was styled Rosa Davis and Sophie Durfee v. Duke Crawford, Sr., and Duke Crawford, Jr. The petition alleged, among other actual fraud. The character of the act or neginattention to the business intrusted to him, or lect is not material. It may consist of entire his failure to appear and plead at the trial, or his procuring witnesses or other evidence, or of any error in the judgment with respect to the ter involving the management of the case. pleadings, the evidence, or other material matall such cases no relief can be obtained in equity. *** In this case the conclusion ment sought to be corrected is the direct result cannot be escaped that the mistake in the judgof the negligence of the appellee, or of negligence with which it is chargeable. No diligence whatever is shown to discover the mistake after the judgment was entered, nor is it shown when it became known to appellee. If it was discovered before the court adjourned, it should have been corrected during the term. A party who knows of a material mistake in his judgment during the term at which it was entered, and fails to take the proper steps to correct it, then ought not to bother a court of equity with it afterwards." things, that the attorney acting for the said | management of the original cause, not involving Sophie Durfee, plaintiff in said suit, without the knowledge of plaintiff, abandoned her interest in said suit, and by an amended petition left her out of the case, and that she had no representatives of her interest after said amended petition was filed in said suit, and that when the judgment was rendered in said cause No. 64963, Sophie Durfee had no representatives and no pleadings in court to look after her interests, and prosecute her rights to said property, and that without her knowledge or authority, and in her absence, on the 3d day of January, 1916, there was on the 3d day of January, 1916, there was entered of record in said cause a judgment divesting her of her interest and title to certain property, vesting the same in Rosa Davis and Duke Crawford, Sr. Among other things, she averred that she had never agreed to, or authorized any one to agree to, said judgment, and that she was not present at the time it was rendered, and did not know anything of it until a day or two before the petition to set aside the judgment was filed; that as soon as she learned of said judgment she at once employed counsel for the purpose of bringing and prosecuting this suit. The case was tried before a jury, and after the testimony was closed, the court peremptorily instructed the jury to find for the defendants, and the jury so found. In the case of Bomar v. Parker, 68 Tex. 440, 4 S. W. 607, Judge Gaines uses the following language: "It seems to us, however, that there is another objection to appellant's cross-bill which is fatal to his case. It is an original action, it is true, but one to which attaches the substantial conditions of a motion for a new trial. Such a suit cannot be maintained without showing that the complainant has been prevented from making his motion during the time of which the judgment sought to be set aside was rendered. Hence if a motion be made and abandoned, it is fatal to a new suit when brought for the same purpose. We think, therefore, that a party who institutes an original action for a new trial occupies no better position than one who makes his motion during the term at which the judgment is rendered, and that he should be held to the diligence of prosecuting his action to a final determination." Appellant has one assignment of error, and that is that the court erred in charging the jury peremptorily in favor of defendant. To this the appellees urge that where a party to a judgment has knowledge, before the expiration of the term of its rendition, and fails to take the proper steps to have the same corrected or set aside, he cannot afterwards maintain a suit in equity for such relief. It seems that the judgment was rendered in the case of Rosa Davis and Sophie Durfee v. Duke Crawford, Sr., and Duke Crawford, Jr., No. 64963, on January 3, 1916. It is undisputed that appellant knew of the rendition of said judgment less than 20 days after same was rendered, and had consulted with counsel in regard to having the same set aside. The record discloses the fact that the suit to set aside the judgment was not filed until the 6th day of May, 1916, which was more than four months after the judgment had been rendered, and subsequent to the term of court at which the same was rendered. It may be said, upon the proposition as to whether the said judgment rendered on January 3, 1916, in No. 64963 was entered by the consent of appellant, or whether counsel for appellant had authority to represent appellant in the premises, there was a conflict but as before stated, there is no question that appellant knew of the rendition of the judg-** ment within less than 20 days after same was rendered. In the case of McLane v. San Antonio National Bank, 68 S. W. 63, the following language is used: "Relief in equity cannot be had because of an act or neglect of complainant's attorney in the In the case of Harn v. Phelps, 65 Tex. 592, Justice Stayton used the following language: "She now seeks to set that judgment aside on several grounds: * * The reasons for not complained of, at the term at which it was enasking the court to set aside the decree now tered, and for delaying action so long, is thus fairly stated in brief of counsel for appellants. ** * *Such results must often occur in the through instrumentalities no better than the administration of laws necessarily imperfect, laws they execute. But when, in the exercise of lawful power, a court has rendered a final judgment, it must be held conclusive between the parties thereto, except in a proceeding appellate in character, unless some ground other than that it is probably unjust is shown, which, under the settled rules of law, is deemed sufficient to authorize a court of equity to re-examine the case. Johnson v. Templeton, 60 Tex. 238; Nevins v. McKee, 61 Tex. 413. To entitle the appellants to the relief now sought, it is necessary that they should show that they ment of which they complain, objections which were prevented from urging, against the judgwould, or ought to, have prevented its rendition, and that this prevention resulted from fraud, accident, or the action of the adverse party, without fault or or negligence on their part. * *The action in which the judgment complained of was rendered was instituted by the appellants, and it was their duty to know what transpired during its progress, and to take steps during the term at which it was rendered to set it aside if unsatisfactory. There is no showing that they were prevented from so doing by fraud, accident, or the act of the adverse party. That a party may be poor is no reason why he should not be held to the same rule of diligence in prosecuting suits instituted by himself as are other persons. The appellants had sufficient knowledge of the land for which they sued to successfully institute and maintain an action in which they obtained a judgment declaring what interest one of them had in each of many tracts of land; and, under such facts, it could not well be held that any sufficient reason is shown why confirmation of the report of the commissioners was not resisted at the term at which it was acted upon." Assuming, therefore, that in the instant case counsel for appellant did not have the authority to agree to the judgment that was entered, following the reasoning in the above cases, this would not be sufficient ground for appellant in this suit to set aside the judgment previously rendered. It would not be sufficient, even for the sake of argument, admitting that appellant had been defrauded, but it must have been shown that the fraud was perpetrated by adverse parties. In this case it is not even alleged that the appellees, Duke Crawford, Sr., and Duke Crawford, Jr., were guilty of fraud or misconduct, or that there was any evidence to the effect that the appellant was prevented from pursuing her legal remedies during the term of court at which the judgment was rendered and entered. Therefore, upon the consideration of the entire record, we are of opinion that there was no error in the trial in the court below, and that the judgment must be, in all things, affirmed. EDMONDSON, Co. Atty., v. CUM- 1. DISTRICT AND PROSECUTING ATTORNEYS Neither Vernon's Sayles' Ann. Civ. St. 1914, arts. 366, 368, providing that county or district attorneys could bring actions against officers intrusted with the collection or safekeeping of any public funds, nor any other statute, conferred any right upon a county attorney to bring an action in behalf of a county to restrain the commissioners' court, county judge, and clerk from allowing officers to buy postage stamps out of county funds. 2. COUNTIES 217-SUITS BY COUNTY-WHO MAY SUE. Where no statute gives county or district attorneys power to sue in behalf of a county, the commissioners' court alone has the right to determine whether a suit shall be brought. 3. INJUNCTION 118(1) — PETITION FOR DEFINITENESS. A petition to restrain a commissioners' court from allowing county officials to buy postage stamps from county funds, which did not name officers who were going to buy stamps nor the amount thereof, was too indefinite to warrant granting of an injunction. 4. COUNTIES 206(1, 2) - COMMISSIONERS' COURT-ALLOWANCE OF CLAIMS-NATURE OF DECISIONS. appeal or other appropriate proceedings instituted for that purpose. Appeal from District Court, Austin County; Norman G. Kittrell, Special Judge. Suit by J. E. Edmondson, as County Attorney, for himself and in behalf of the county, to restrain G. S. Cumings and others, as members of the Commissioners' Court, and the County Clerk of Austin County, from allowing county officials to pay for postage stamps out of the county fund. Judgment for defendants, and plaintiff appeals. Affirmed. J. E. Edmondson, of Bellville, for appellant. Johnson, Matthaei & Thompson, of Bellville, for appellees. GRAVES, J. Appellant J. E. Edmondson, who was county attorney of Austin county, filed this suit in the district court of that county against the county judge and other members of its commissioners' court and its county clerk, alleging that he did so for himself and in behalf of the county, charging that the commissioners' court had formerly allowed, and unless restrained, would in the future continue to allow all the county of ficers of Austin county to illegally pay for postage stamps used by them in their official and private business out of the county's funds, and praying for an injunction to prevent any further such practice. The general purport of further averments was that large amounts of money are, in violation of law, yearly paid out of the county's general fund to its officials for postage stamps, which are not named or included in the statute allowing stationery to county officials; that some of these officers have no property subject to execution and their bondsmen are not liable for stamps so furnished them; that neither appellant nor any other taxpayer of the county had any adequate remedy at law to stop or prevent the acts complained of; that the same would be continued, and he and all other taxpaying citizens would suffer irreparable injury, unless the requested injunction were granted. No authority was pleaded or shown for bringing the suit in behalf of the county, no particular officer was named or charged with having used, or being about to so use, any specified sum, nor was there any averment that the action was brought for the benefit of any other taxpayer than appellant. After a general demurrer, the appellees answered by a number of special exceptions, in substance challenging the sufficiency of the petition, among others, in the following particulars: (a) No, authority in the county attorney to bring the suit in behalf of Austin county was shown. (b) No particular county officer was named, nor was it aver Allowance of claims by a commissioners' court is a judicial act which cannot be revoked red that the commissioners' court had in the at a subsequent term, nor be collaterally at- past approved, or was threatening in the tacked, and can only be revised, if at all, by future to approve, such use of any specific |