is paid by any person with intent to defraud his creditors, an amount equal to the premium so paid, with interest thereon, shall inure to the benefit of said creditors, subject, however, to the statute of limitations."

The amount of the insurance may be made payable in case of the death of the wife before the period at which it becomes due, to his, her, or their children, for their use, as shall be provided in the policy of insurance, and their guardian, if under age.

Here is a statute which empowers a wife in her own name or in the name of a third party, to obtain a policy of insurance on the life of her husband, and in the case of his death the amount of the insurance shall go to the wife free from the claims of her husband's creditors.

There is but one saving provision in the statute in favor of creditors, and that is where a person pays the premium on the policy with the intent to defraud his creditors, an amount equal to the premium so paid, and not barred by the statute of limitations, may be recovered. The defendant in the bill in her answer alleges that she caused the life of Josiah D. Cole to be insured in the Equitable Society, and that the insurance was for her sole use. She denies the right of complainant to any portion of the money paid her by the insurance society, and sets up the statute of limitations as a bar to the recovery of an amount equal to the premium paid by her husband on the policy prior to July 17, 1874. The question here is not whether defendant falls within the letter of the statute, but it is whether she substantially complied with the act, and falls within its spirit. The constitution of 1870 declares that "The General Assembly shall pass liberal homestead and exemption laws." Prior, however, to the adoption of the constitution, in Deere vs. Chapman, 25 Ill, 610, it was held that the Homestead Act was a remedial act, and should receive a liberal construction. It was there said: Though this act may be said to be in derogation of the common law, and an innovation upon all former relations between creditors and debtors, giving to the latter new rights and immunities, yet it does not follow that it should not receive a construction so liberal as to advance the object contemplated by the Legislature in passing the act. In Good vs. Fogg, 61 Ill., 451, where the act of 1843 and 1861, exempting certain personal property from levy and sale, came before the court for construction, it was held that a person entitled to the benefit of the exemptions may hold under both statutes a home worth not exceeding $160; that the acts are not to receive a

strict construction, and that according to their spirit a party thus situated may, in his claim, unite both laws.

Now, while the act which allows the wife to hold a policy of insurance on the life of her husband, and protects her in the proceeds of the policy as against the creditors of her husband, is not strictly an exemption law, yet it is of that nature, and should be construed with the same liberality. But we are not without authority on this question. In Charter Oak Life vs. Brant, 47 Mo., 419, where a statute similar to our own was under consideration, it is said: "The statute was founded on charity, and intended to subserve a beneficient object, and in a case falling within it I should be disposed to give it the most favorable construction to carry out its humane purpose." Do the facts presented by this record establish a case within the spirit of the statute? Cole had a policy payable to him, his executors, administrators and assigns; he assigned the policy to defendant, his wife; on the same day the insurance company was notified of the assignment; it accepted the notice and consented to the assignment. In the City Fire Insurance Company vs. March, 45 Ill., 482, where a policy had been taken out in the name of Morris on a stock of goods, who subsequently sold the goods to Meyers, and with the consent of the company, assigned to him the policy, it was held, in substance though not in form, a new insurance was granted to Meyers.

In Burroughs vs. State Mutual Life Assurance Company, 97 Mass., 359, where a policy was payable to the insured and his assignees, and duly assigned with the consent of the company, it was held that the assignment transferred the legal title to the assignee with right to sue in his own name.

Whether under the assignment in this case a suit might have been maintained in the name of Mrs. Cole is a question which does not properly arise, and it will not be necessary to determine it. But when the assignment was made with the consent of the company, as was held in the Marsh case, in substance a new insurance was granted to Mrs. Cole. After the assignment was made it could not be repudiated by Cole or the company, but under the assignment the policy was held by Mrs. Cole for her sole use and benefit, and although the transaction may not have assumed the form required by the statute, yet the substantial requirements of the statute were fol`lowed, and under a statute of this character that is all that can be required. At the time the assignment was made, had Mrs. Cole taken out a new policy on her husband's life in her name, or that of

a trustee, it is not denied that she would have been able to hold the proceeds, regardless of the creditors of the husband. What is the difference in principle between taking out a new policy and having one already in existence assigned with the consent of the company? We perceive no substantial difference, and hence we must hold that Mrs. Cole under the statute had a clear right, with the consent of the company, to accept an assignment of the policy. But under the statute, Cole being insolvent, all premiums paid by him on the policy within five years next before this action was brought, with interest thereon from the date of payment, could be recovered by the creditors. The action was commenced in October, 1878. The premium paid in July, 1873, and all paid before that time would be barred by the statute, but the complainant was entitled to recover the premium of $501.60 paid July 17, 1874, and $501.60 paid July 17, 1875, and $501.60 paid July 17, 1876, with six per cent interest on each of said amounts from the date of payment.

The position that the assignment of the policy cannot be maintained because it was not acknowledged and recorded as the transfer of goods and chattels is required to be, under sec. 9, chap. 68, R. L., 1874, page 577, we do not regard as tenable. While the words goods and chattels might be held fordinarily to mean all personal property of every description, yet a moment's reflection will satisfy any one that it was never intended that a chose in action should be embraced within its provisions. Where a husband and wife are residing together, there is manifest wisdom in requiring a transfer of goods and chattels from one to the other to be in writing, and acknowledged and recorded, so that all may know to whom the property belongs, and one may be prevented from setting up a secret transfer of the property should it be seized by execution as the property of the other. But the law could never have been intended to apply to a chose in action. It would be absurd in the extreme to require a husband and wife, on the assignment of a promissory note, to go before a justice of the peace and have the assignment acknowledged, and then have it recorded. The statute was never framed for such a ridiculous purpose. One cross error remains to be considered: Is complainant entitled to have his claim paid first out of the money received? If Cole was living, and the complainant had filed a bill and discovered property, there would be no question in regard to his right to be first paid out of any money recovered as a reward for his diligence. Lyons vs. Robins, 46 Ill., 276; Rappley vs. International Bank, 93 Ill., 396.

Where property has been fraudulently conveyed by a person who afterwards dies, such property is not assets in the hands of the administrator for general distribution among all the creditors. The administrator cannot file a bill and reach such property, but a creditor can, and, when he obtains a lien by filing a bill, and in the end recovers the property, he is justly entitled to be rewarded for his superior diligence, and receive the payment of his debt before other creditors can come in. We do not regard this, however, a new question in this court. In Balantine vs. Beal, 3 Scam., 204, where a creditor had filed a bill to reach property which was held by one in trust for an estate, the complainant having a claim against the estate, it was held that the complainant, by the institution of his suit, secured a lien upon the land for the satisfaction of his debt, and if the administrator was entitled to any of the proceeds, it would only be the residue after paying complainant's debt. See also Alexander vs. Tums, 13 Ill., 221, and United States Bank vs. Burke, 4 Black., 141.

The judgment of the Appellate Court must be reversed, and the cause remanded for further proceeding consistent with this opinion.

SHELDON, J., dissenting.

The policy was Cole's own property. The assignment of it was a gift of the policy to his wife, and void as against creditors. I do not regard the statute as applying to the case.

SUPREME COURT OF ILLINOIS.

Appeal from Appellate Court, Third District.

MARY A. SWIFT

vs.

RAILWAY PASS. AND FT. CONDUCTORS' MUT.
AID AND BENEFIT ASS. OF THE U. S. &
CANADA.*

S. was a member of a mutual association according to the provisions of which he was entitled to certain benefits in case of personal injury, and the association was liable to pay $2,500 in case of his death. This latter sum, according to the rules of the association, could be disposed of by will, and if not so disposed of, should belong to and be paid to his widow, or in case he had no widow, then to his legal heirs or representatives. S. made a will devising the proceeds to children by a former marriage, delivering it and his certificate of membership to the executor appointed. Afterwards, he being absent from home and indebted for assessments which he was unable to pay, sent his wife a writing that it was his wish, made in sound mind, revoking all former life insurance policies, this day he made his life policy read for her benefit in case of his death, and for her special benefit and all that might be derived therefrom, and also wrote to her of his inability to pay his dues, and that "this makes the policy yours if you will keep it up," and she paid the assessments accordingly.

Held, that this, in connection with the wife's acts, amounted to an equitable present assignment of the sum payable by the policy on his death, but not of the sum payable for personal injury, and that on his death she was entitled to receive the sum due on the policy in preference to the executor under the will.

Held, that neither the wife nor children of the insured had any interest in the insurance previous to the assignment; the contract was wholly between the insurer and insured, and the latter had a right to assign the same.

H. R. BENSON, KARR & KARR, and O. W. ALDRICH, for Appellant. BLOOMFIELD & HUGHES, for Appellee.

Opinion filed October, 1, 1880.