ment which he may desire, or to oust the jurisdiction by change of residence, or to leave the will once rejected open to probate in the usual way after death, the proceeding is still more anomalous. I am disposed to think, with the Circuit judge, that this is not in any sense a judicial proceeding which he was bound to consider or entertain.

The

This is the first instance in our jurisprudence in which an attempt has been made to compel a living person, as a condition of relief, to enter upon a contest with those who, until his death, can have no recognition anywhere, and who after his death are presumed to represent him, and not any hostile interest. maxim that the living can have no heirs is as well settled by statute as by common law. Until a man dies it can never be known who will succeed him, even if intestate, and whatever may be the probability there is no certainty that a single one of the persons who have come in here to oppose the will may survive the testator. The law gives no preference to contingent expectations, and legally it is just as possible that the State may take by escheat, as that the person now litigating, or any other more remote relatives, will be come interested. It is also within the power of relator to dispose of his entire property, not merely by a new will, but by sale or gift, and in such event there will be nothing for this will to dispose of, and possibly nothing for these or any other kindred to inherit. It is also competent for him to go into another county or State or country, either of which acts would put his estate beyond the jurisdiction of Wayne county; and either of the two latter may change the course of inheritance or otherwise affect the disposal of his estate.

I cannot conceive it possible that the proceeding can be dealt with as judicial when the chief party to it will not be precluded by the decree from doing exactly as he might have done had the court never been called on to act at all. This statute, which was probably designed to prevent the unseemly and disgraceful attempts too often made to defeat the enforcement of the last will of persons whose competency to deal with their own affairs was never doubted or interfered with, has been so drawn as to remove none of the difficulties, but rather to make them worse. It is a singular, and in my judgment a very unfortunate spectacle, to see a man compelled to enter upon a contest with the hungry expectants of his own estate, and litigate while living with those who have no legal claims whatever upon him, but who may subject him to ruinous costs and delays in meeting such testimony as is apt to be paraded in such cases.

The practice which has usually prevailed in civil-law countries, and also is said to have been customary in various parts of England (see Seld. Ecc. Jur. Test. 5) of having wills execnted or declared in solemn form, or acknowledged before reputable officers and a sufficient number of disinterested witnesses to render it unlikely that the testator is not acting with capacity and freedom, has been approved by the continued experience of most countries, and has saved them from the post mortem squabblings and contests on mental condition which have made a will the least secure of all human dealings, and made it doubtful whether in some regions insanity is not accepted as the normal condition of testators There is no sensible reason why a will which is always revocable and contingent should not be established, presumptively at least, by such an acknowledgment as will suffice to prove a deed which is irrevocable; and where, as is usually the case abroad, such an acknowledgment is made before trustworthy officers, in the presence of known and reputable witnesses, and in the enforced absence of all other persons, the security against incapacity and in

competency is quite as strong as can be found in a contest before a court or jury that never saw the testator. A man's incapacity, if it exists, will not easily escape the notice of his disinterested friends and neighbors, and when they certify to his competency and freedom of action with their attention directly called to their own responsibility in doing so, they are seldom mistaken, and those who seek to impugn their action, if allowed to do it at all, should be compelled to assume the burden and risk themselves. But this is not judicial action.

In the proceedings of various kinds familiar in England, where conveyances are made effective by acknowledgment and enrollment before various classes of public officers and tribunals, it was never deemed proper or necessary to bring general heirs presumptive before the acknowledging officer, in order to give efficacy to transfers in fee-simple, either of man or woman, although they are as clearly affected in their prospects of inheritance as they would be by a will. And in the cases where testimony is to be perpetuated for use in future controversies, the rule is inflexible that no matter how great the probability of inheritance may be, the heir presumptive is not either a competent or permissible party to such litigation; and this is so even in case of estates tail, and although the circumstances are as strong as possible against the chances of any change. Earl Belfast v. Chichester, 2 Jac. & W. 439; Allan v. Allan, 15 Ves. 130; Lord Dursley v. Fitzhardinge, 6 id. 251; Sackvill v. Ayleworth, 1 Vern. 105; Smith v. Attorney-General, 6 Ves. 260; S. C., in note, 1 P. Wms. 117.

The broadest definition ever given to the judicial power confines it to controversies between conflicting parties in interest, and such can never be the condition of a living man and his possible heirs. Our statutes have never undertaken, and do not in this case undertake, to give to the heirs any interest which will ever be fixed by this probate, or which may not be cut off at any time by their own death, or by relator by new will or conveyance. It is by no means free from doubt what classes of probate proceedings under our system are to be treated as judicial proceedings in the proper sense of that term; and it is not important here to consider that question, because this proceeding is not even a suit for probate. There has never been any proceeding known to our laws for the mere purpose of establishing the will even of a deceased person. The probate of wills under our statutes is merely a part of the proceedings to administer the estates of deceased persons in the court that has jurisdiction and charge of the estates. This rule is so general that in some States devises are not probated at all, and in some the probate is not conclusive, because controversies concerning land are usually tried in other courts. We have enlarged the jurisdiction in probate so as to reach lands for some purposes, and have made all wills subject to probate. But there is no case where an original probate can be granted here, except in the court having jurisdiction over the estate; it cannot be done separately. This statute does not attempt to change the place of ultimate probate, and it does not make a decree against the will either a bar or even admissible to prevent future probate after death. It makes no provision for making a finding either way evidence for any purpose during testator's life, so as to negative testamentary capacity, or otherwise to affect him. And it has no force for any purpose so long as he lives.

I am of opinion that the statute is inoperative, as not within any recognized judicial power, and that the courts cannot be called upon to administer it, and that the mandamus should vacate the whole proceedings. Sherwood and Champliu, JJ., concurred.

sale merely, and to some extent, by heavy taxes and rigid police regulations, intends to discourage it. There is nothing therefore in this condition which is legally objectionable on the ground of conflict with public policy or State legislation.

That independent of the statute above recited, the condition is perfectly lawful. and that its breach may work a forfeiture of the estate granted, is undoubted. Many cases of similar conditions are found in the books, and in none of them has enforcement, either by forfeiture of the estate or by injunction, been refused. The enforcement is subject to the rule that the law favors covenants rather than conditions; and it inclines to construe the undertakings of parties strictly as against forfeiture. Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225; S. C., 41 Am. Dec. 549; Blanchard v. R. Co., 31 Mich. 43; Taylor v. Sutton, 15 Ga. 103; Broadway v. State, 8 Blackf. 290; Southard v. Cent. R. Co., 26 N. J. Law, 13; Voris v. Renshaw, 49 Ill. 425; Hooper v. Cummings, 45 Me. 359; Woodworth v. Payne, 74 N. Y. 196; S. C., 30 Am. Rep. 298; Glenn v. Davis, 35 Md. 208: Wier v. Simmons, 55 Wis. 637; Page v. Palmer, 48 N. H. 385; Joslyn v. Parlin, 54 Vt. 670. The evidence of breach must also be clear (Hadley v. Man'fg Co.,4 Gray,140; McKelway v. Seymour,29 N. J. Law, 321), and the party in whose favor the condition is reserved may be held to waive it by any act of his own which would render insisting upon it unjust, as was held in this case before. But the courts will not defeat a condition by a construction which is strained and unreasonable, and which manifestly was not in the minds of the parties. Guild v. Richards, 16 Gray, 309; Keening v. Ayling, 126 Mass. 404; Taylor v. Railroad Co., 25 Iowa, 371; Wilson v. Wilson, 86 Ind. 472.

The condition in this case is simple and unambiguous, and no construction is suggested which would defeat it. Of the cases in which conditions have been sustained which either restrained some particular use of premises conveyed, or enforced some particular use, it may be useful to refer to a few.

In Sperry's Lessee v. Pond, 5 Ohio, 387; S. C., 24 Am. Dec. 296, the condition was that the grantee should keep a saw-mill and grist-mill doing business on the premises granted, and the court said of it: "The mills, if kept in operation as the water would permit, would increase the value of the balance of Sperry's tract of land, and be a benefit to the occupier of it. This probably with Sperry was a part of the consideration for making the grant; " and the condition was enforced. To much the same purport is Langley v. Chapin, 134 Mass. 82.

In Gillis v. Bailey, 21 N. H. 149, the condition was that the lot conveyed should be occupied by only a single dwelling-house, with out-buildings, and it was held to be broken by the erection of a building designed and calculated for the occupation of three distinct families in severalty. Somewhat similar to this is Dorr v. Harrahan, 101 Mass. 531; S. C., 3 Am. Rep. 398.

In Clark v. Martin, 49 Penn. St. 289, the condition was in restraint of the erection of a building above a certain height.

In Linzee v. Mixer, 101 Mass. 512, it inhibited the construction of a bay-window in a house.

In Gibert v. Peteler, 38 N. Y. 165, the purpose was to preserve from interruption the view from certain premises.

In McKissick v. Pickle, 16 Penn. St. 140, the condition was against alienation for any other purpose than for a school-house. And in each of these cases the party in whose favor the condition was reserved, had, or apparently supposed he had, an interest in the condition being observed, and imposed it upon the estate

granted for that reason. Keening v. Ayling, 126 Mass. 404, is also instructive in this connection.

But in those cases in which the condition has had for its purpose a restraint upon the business of dealing in intoxicating drinks, the interest of the grantor in its enforcement has been specially prominent in the mind of the court in passing upon the condition. This was the case in Collins Man'fg Co. v. Marcy, 25 Conn. 242, where the condition was in these words: "Provided, always, and this deed is upon condition, that in case any ardent spirits, cordials, or wines shall be kept or sold on any part of said premises, or in any building erected or to be erected thereon, unless it be with other drugs and medicines, and sold in similar quantities and in case of sickness only, then and in that case the deed shall become void and of no effect." Dealing with a similar condition in Plumb v. Tubbs, 41 N. Y. 442, the judge delivering the opinion of the court said: "The grantor in the present case evidently belonged to that class of persons who consider the habitual use of intoxicating liquors as a serious evil. He was the owner of a tract of land, which as I infer from the case, he purposed to have formed into a town or village by the sale of lots to individuals who should build upon them. This would give to his prop erty remaining unsold the advantage of the enhanced price resulting from such improvement. The increase of inhabitants would give to himself and family the benefits of refined society. It was his opinion, as we may infer from his restrictive conveyance, that intemperance was a social evil from which he desired to protect himself and his family. We may infer in the same manner that he considered his remaining property as more valuable if located in a community where no liquor was sold as a beverage, than where its use was permitted. These views and wishes cannot be pronounced unreasonable and absurd. The grantor had a right to hold them, and he had a right to use his property in a manner that would accomplish them." To like effect are O'Brien v. Wetherell, 14 Kans. 616, and Post v. Weil, 8 Hun, 418.

A like condition to the one before us was considered and sustained in Cowell v. Colorado Springs Co., 3 Colo. 82; S. C., in error, 100 U. S. 55. In that case the condition was objected to as repugnant to the feesimple estate, which was granted by the deed containing it; but Mr. Justice Field showed very conclusively, in a few short and terse paragraphs, that there was nothing in the objection. We may well believe counsel in this case were of the same opinion, for they have not raised it.

These cases are ample to show that the ruling of the Circuit judge was erroneous. The condition in this case was far from being "merely nominal," and when the circumstances are shown, as they have been now, they are far from evincing "no intention of actual and substantial benefit to the party to whom and in whose favor" it was to be performed. The grantors had a purpose in view which was grounded in substantial interest; and the condition was not arbitrary, but was imposed for the protection of their somewhat extensive business. And good grounds were given in the evidence for supporting the condition as one which the grantors did not err in deeming important.

The fact that no sale of liquors to any of the plaintiffs' servants was proved, was not important. The plaintiffs undertook to prevent the temptation to intoxication being held out to their servants, and they are not dealing with these defendants as criminals, but as parties who are guilty of a breach of contract in offering to the men the enticement to intoxication which the contract provided against; and the fact which appeared on the trial, that liquors were sold in

the assumption that it was wrongfully paid to her, the present action was brought by the beneficiaries under the old policy to recover it from the defendants, and upon the facts above stated the complaint was dismissed, from which the plaintiffs appeal.

I do not see upon what ground this action could be maintained. Lindemann effected the insurance for the benefit of his children, and whatever interest they may have had in it, the existence of that interest or the continuance of it depended upon the payment of the annual premium, which on his part was a voluntary act, he being under no legal obligation to continue the payment of it. Clark v. Durand, 12 Wis. 223; Gambs v. Col. Mut. Life Ins. Co., 50 Mo. 44; Swift v. R. P., etc., Ass'n, 96 Ill. 309; Landrum v. Knowles, 22 N. J. Eq. 594.

If after he had taken out the first policy, he had delivered the instrument to the beneficiaries, or to any one of them, or to any one to hold in trust for them, it would, according to certain decisions, have vested in them the right to the insurance, although he should afterward, with the consent of the company, take out a new policy, for the same amount and at the same premium, for the benefit of some one else. Lemon v. Phoenix Life Ins. Co., 38 Conu. 294; Ricker v. Charter Oak Life Ins. Co., 27 Minn. 193; Pilcher v. N. Y. Life Ins. Co., 33 La. Ann. 332.

Whether these cases were correctly decided or notwhich has been questioned, or at least as respects two of them. Union Mut. Life Ins. Co. v. Stevens, 19 Fed. Rep. 671, it is not material here to inquire, as Lindemann never parted with the policy, but kept it in his possession until it was surrendered to the company and the new policy taken out; showing by this circumstance and by the fact that he, and not the beneficiaries paid all the premiums; that he did not,as was said under like circumstances in Bickerton v. Jakes, 12 Abb. N. C. 25, intend to place the insurance irretrievably beyond his own control; and the fact that the person who has obtained an insurance upon his life for the benefit of children or others keeps the instrument himself, and alone pays the premiums, has in other cases been regarded as sufficient to show that the beneficiaries, under such circumstances, have no vested rights in the policy, and that the insurer has the right to surrender, and if he thinks proper to take out a new one payable to other beneficiaries. Union Mut. Life Ins. Co. v. Stevens, 19 Fed. Rep. 671; Clark v. Durand, 12 Wis. 223; Kerman v. Howard, 23 id. 108; Foster v. Guiles, 50 id. 603; Gambs v. Col. Mut. Life Ins. Co., 50 Mo. 44; Sanford v. Sanford, 45 N. Y. 726.

There is no reason why this should not be so. The creating of such an insurance for the benefit of children or others is a mere gratuity; for although there is a duty upon parents to maintain children during their minority, this is a provision to take effect for their benefit after the parents' death.

There may be many reasons why the right to transfer such an insurance from one beneficiary to another, even in the case of children, should exist. In the course of years their pecuniary coudition may be materially improved, by marriage, success in business, or other causes; so that it may be more desirable and just that others who have claims upon the insurer, and who are in greater need, should have the benefit of the sum secured by the insurance, instead of those for whom it was originally intended. When therefore the insurer keeps the policy entirely in his own possession, he alone paying the premiums, he should, with the consent of the insurance company, have the same right to revoke, alter or change, that he would have in respect to a will; for like the provisions in a will, it is a gift that is to take effect upon his death. He may of course put an end to it by ceasing to pay the annual premium; but there is no reason why his right should

be limited to this; and that where, for reasons satisfactory to him, he desires to transfer the benefit of it to another, he should have to lose all the premiums he may have paid over a long course of years, and be compelled to pay for a new policy the increased premium consequent upon his increase of years.

An insurance taken out and kept in this way is distinguishable from what has been held in cases where a wife, under the act of 1840 and subsequent acts, Laws of 1840, ch. 80, p. 59, causes the life of her husband to be insured for her sole use, either for a definite period or for the term of his natural life, and in case of her death before the decease of her husband, makes the amount of the insurance payable to her children. It has been held that such an insurance, within the intent of the statute, is so exclusively for the benefit of the wife and children that she cannot even assign her interest in it, nor traffic with it in any way. Barry v. Equity Ass. Soc., 59 N. Y. 592, 593; Eadie v. Slimmon, 26 id. 9.

And also that the surrender of such a policy by the husband after the death of the wife, with the assent of the company, is absolutely void; and that notwithstanding such a surrender, the policy may be enforced against the company for the benefit of the children. Whitehead v. New York Life Insurance Co., 63 How. 394.

And that where the payment of the annual premium is allowed by a collusive arrangement between the husband and the company to lapse, that a new policy may be taken out upon the same terms as the former one, for the benefit of the husband's creditor, such a transaction is also void; and upon the death of the husband, that the insurance is payable to the wife, and not to the creditor of the husband, under the new policy.

These cases I say are distinguishable because by the operation of the statute, the insurance is so exclusively for the benefit of the wife that neither she nor her husband can transfer it to another. Nor can that end be effected through a collusive arrangement between the husband and the company by which the payment of the annual premium is allowed to lapse. But where, in my judgment, as in the present case, the husband alone pays the premiums and keeps the policy in his possession, he may put an end to it by ceasing to pay the premiums, or if he thinks proper, surrender the policy, with the assent of the company, and convert it into a policy payable to some other beneficiary. This is all that there is in this case.

There is noth

ing in the evidence showing any collusion or fraud on the part of the company. They simply recognized the right of Lindemann, who had the policy in his own possession, and had paid the premiums upon it, to surrender it and take out a new one at the same rate of premium for the benefit of his wife, instead of the former beneficiaries; and in the absence of any fraud or collusion, there is no ground that I can see for holding that they were wrong in paying the amount of the insurance to the widow, upon the new policy, and should be compelled to pay it to the children under the old one.

The judgment dismissing the complaint should, in my opinion, therefore be affirmed. Allen, J., concurred.

NEW YORK COURT OF APPEALS ABSTRACT.

NUISANCE Courts will not in all cases interfere by way of injunc tion to restrain the continuance of an illegal trade, the abatement of a nuisance, or the prosecution of a daugerous employment. Wolcott v.Milick, 11 N. J. Eq. 204;

INJUNCTION - ADULTERATED TEAS.