DISSENTING OPINION.
MR. Justice Wilkesdelivered the following dissenting opinion:
I cannot agree with the result reached by the majority of the court. I agree with their holding that a policy taken out by the insured, payable to his administrators and assigns, goes to the estate of the insured, and may be assigned by him in his lifetime. To that extent the insured has control over it. But if he does not assign it in his lifetime, it passes to his estate, not by descent, but by the terms of the policy.
I am also of the opinion that the policy or interest of the assured thereunder can be .assigned by parol and delivery, and such assignment will be good against the beneficiary in the policy, if so intended. But I do not understand that the husband in this case assigned his *419remainder or contingent interest in the policy, or the interest of his estate, to his wife; nor do I understand the court of appeals to so find. On the contrary, he assigned and delivered the policy, as issued to her, to he held by her, and to take effect according to its terms and provisions; that is, she took an interest in it, contingent upon her surviving her husband, and not otherwise, and he held an interest contingent on his surviving her. Waiving the question whether he could, before her death, assign this merely contingent interest, it is sufficient to say he did not do so, por attempt to do so, and the court of chancery appeals so finds. He intended when he delivered the policy to her that she should take according to its provisions, and not otherwise. There is no indication to the contrary, and the court of chancery ■ appeals does not so find. If there was, it could not prevail against the terms of the policy.
Now, if she had died a natural death, and he had afterwards died without assigning the policy, there can be no doubt it would have gone to his administrator or executor, by the terms of the policy, to be disposed of as the statute provides in cases of distribution. In other words, he or his administrator would have taken under the policy, and not jure mariti.
The fundamental error in the opinion of the majority, as I see it, is in holding that Mr. Justice, when he delivered the policy to his wife, intended to vest in her his contingent interest under it in the event he should survive her. I do not find any warrant for this in the find*420ings of the court of chancery appeals, nor could it have so found in the face of the provisions of the policy, and I think all the circumstances show that he did not so intend, hut merely intended' that she should take the policy, and hold under it according to its terms. If he had intended to vest in her an absolute interest in the proceeds, without limitation, condition, or contingency, he avou1<1 have caused the policy to be so worded that in any event she would get the proceeds; that is, he would have made it payable to her, or he would have made a written indorsement indicating his purpose to transfer his interest and.invest in her the absolute and sole right to the proceeds, without condition, contingency, or limitation. He did neither of these things, hut merely delivered the policy to her, and she received it according to its terms, and so held it, and could not hold it except according to its terms, and by those terms she had only the contingent interest which depended upon her surviving her husband. There is nothing to show that his contingent interest was cut off, or intended to be cut off, by the delivery of the'policy to the Avife. The logical inference is to the contrary, and so is the finding of the court of chancery appeals.
The naked question involved in this case is whether the fact that Mr. Justice killed his wife can change the terms of this policy, and the statute which provides how the proceeds shall go, not whether he could recover from the insurance company. The company has already paid *421the money to Ms administrator, without contest or question.
Now, it is true that it shocks the sense of mankind that a person shall become a beneficiary or hasten a beneficial interest by means of the crime of murder. It may be that the legislature should provide against such a contingency, but I am of the opinion the courts cannot do so.
It is an old maxim that hard cases make bad law, and I fear that the truth of the maxim is illustrated in the result reached in this case, as was done in the case of Riggs v. Palmer, 115 N. Y., 506, 22 N. E., 188, 5 L. R. A., 340, 12 Am. St. Rep., 819, cited and relied on in the opinion of the majority, but which was afterwards modified in Ellerson v. Westcott, 148 N. Y., 149, 42 N. E., 540, and which had been disapproved and repudiated by the latter and better-considered cases of Owens v. Owens, 100 N. C., 240, 6 S. E., 794; Deem v. Milliken, 53 Ohio St., 668, 44 N. E., 1134; Shellenberger v. Ransom, 41 Neb., 631, 59 N. W., 935, 25 L. R. A., 564; Carpenter’s Case, 170 Pa., 203, 32 Atl., 637, 29 L. R. A., 145, 50 Am. St. Rep., 765.
I agree with the majority in its view that the rules of the common law are flexible, and adapt themselves to the new and changing conditions and emergencies of society; but they cannot and did not go to the extent of overriding, repealing, and nullifying the provisions of our statutes, or changing the laws of descent and distribution.
*422The-devolution and distribution of personal property is a matter which is regulated by statute, and the statute cannot be set aside to meet hard cases, or to administer a liigher and moral law in its stead.
But it is evident that no such great outrage upon our sense of natural justice can result from allowing the law to take its course in this case as is intimated in the opinion of the majority.
Mr. Justice, the murderer, is not suing in this case, and he can in no event be benefited personally by the proceeds of this policy. He has eliminated himself from the whole transaction by his own suicide. The proceeds of the policy do not go to him. They go to his administrator, and through that administrator, to his next of kin, or, in default of next of kin, under the statute, to his creditors. Neither the next of kin nor the creditors were “particeps criminis” with him in the commission of his crime, and' in thereby bringing the policy to maturity. There is no ground, in law or morals, why they should be punished for his criminal-act. Their hands are not stained with the blood of Mrs. Justice. They should not be punished for. her death. In this connection, it may be well to remark, also, that Mr. Justice did not kill his wife to obtain the insurance. No such thought was in his mind. He killed her in sheer reckless, it may be insane, desperation over her attempt to procure a divorce.
I do not think the cases of Mutual Life Ins. Co. v. Armstrong, 117 U. S., 591, 6 Sup. Ct., 877, 29 L. Ed., *423997, and Burt v. Union Central Life Ins. Co., 187 U. S., 362, 23 Sup. Ct., 139, 47 L. Ed., 216, cited by the majority, are controlling, or even in point, in the present case.
In those cases the contest and question was between the insurance companies and the beneficiaries under the policies, as to whether the companies could be made to pay the policies.
In this case the insurance company has made no contest, but has paid the proceeds into the hands of the administrator; and the question now is not whether the parties entitled shall be allowed to recover, but whether, having the fund in possession, it shall be confiscated and taken away from them.
In the Armstrong case-it appears tliat the policy upon Armstrong’s life was assigned to Hunter, who was a creditor of Armstrong’s. Hunter also procured insurance upon Armstrong’s life in other companies, and afterwards murdered him in order to obtain the insurance. The insurance company refused to pay the policy on account of the fraud perpetrated upon it in obtaining the insurance for the purpose of killing the insured and obtaining the money. It was held that Armstrong’s administrator could not recover, because in order to secure its immediate payment, the beneficiary murdered the insured. This was, as before stated, a contest between the administrator of the assured and- the insurance company as to whether the company could be made to pay-
In the latter case of Burt v. Union Central Life Ins. *424Co., 187 U. S., 362, 23 Sup. Ct., 139, 47 L. Ed., 216, the. contest was also between the assignee of the murderer and the insurance company as to whether the latter could be required to pay the policy by the beneficiary, who had accelerated the maturity of the policy, or his assignee; the assignment being made after the killing had been done.
The insured was legally executed for the killing of his wife, and the holding of the court was that the policy did not insure against his legal execution, and, if his death was the result of a legal execution, then the condition of natural death in the policy, upon which it was to become payable, had not accrued.
In the opinion of the majority it is asked if it can be successfully contended that a claim resting upon a felonious act, which might have been resisted by the insurance company, had acquired more vigor and more virtue when.it is asserted by the murderer’s representatives, to the proceeds of the policy. We answer that we think such a contention is not only entirely tenable, but wholly legal and logical. It is not the case of the murderer taking the fruits of his own crime. The administrator does not hold under the murderer, nor for his benefit. He holds under the terms of the policy, and for the benefit of the next of kin or creditors of'the assured, who are-not, dr should not be, in any way affected by the crime of the assured. The right to the proceeds does not come.to the administrators or next of kin or creditors through any assignment of the murderer, or *425any descent from him, bnt solely nnder the terms of the policy, and the statute applicable thereto'. They do not take and do not hold nnder the murderer, but under- the policy, and are innocent of all crime and all bad faith.
To hold with the majority is, in truth, to visit upon the children the iniquities of the father, which human law does not do, whatever may be the rule of the divine law.
In the present case the proceeds of the policy are .in the hands of the administrators of the husband, where, under the law, they should be. All defenses of the insurance company have been eliminated from the controversy. The administrators do not seek or need the aid of the court to get possession, of the fund. They have it already, and the only question now is to whom .should it be paid. The statute says to the next of kin, or, in default of next of Mn, to the creditors. But the opinion of the majority says: “No,-we will not allow it to go as the statute says and provides, but will give it to the representatives of the murdered woman, who never took any interest in it, because the condition on which she was to acquire an interest never happened.” Not only is the property taken away from the husband’s estate, but it is attempted to be given to the wife, who can in no event have an interest in it.
No interest ever vested in her, except the contingent one fixed by the policy, which was extinguished by her dying before her husband. None ever vested in her ■husband jure mariti} because his wife never had a vested *426interest. None Tested in Mm after her death, because he did not assign or transfer the policy, or exercise any act of ownership over it, but left it to pass by its terms to his administrators, for the use of his next of kin or creditors.
But if the majority is correct in holding that the entire interest in the policy vested in Mrs. Justice when it was delivered to her, still I am of opinion the majority is incorrect in its conclusions.
If she died the absolute, unconditional owner of the policy, and it would have passed t<3- her husband jure mariti in the event of her natural death, the fact that she wa's killed by her husband would not cut him off from such right if he were alive. Much less will it cut off his administrator, who already has the fund in his hands, and does not need the aid of the court in any way, but simply holds it to be paid out as the law provides — to the nexfof kin, if any, and, if none, then to the creditors, under statute. The marital rights of the husband are protected by the statute 29 Charles II, chapter 3, section 25, and this statute became a part of the law of tMs State. This marital right is recognized also by a number of our own statutes — notably the Act of 1875, chapter 89, and Act of 1877, chapter 79 (Shannon’s Code, sections 4237, 4238).
Can the court change the rule of the common law in regard to inheritance in order to punish a criminal offense?
The question is directly considered in the case of *427Owens v. Owens, 100 N. C., 240, 6 S. E., 794. In that case it is said:
“Is the right of the wife to share in the personal estate of her husband as distributee lost or affected, by the fact that he died at her hands or through her procurement? Does the child who slays a parent thereby lose the right to participate with his brothers and sisters in the distribution of the personal estate, or to take his part of the descended real estate? Reversing the matter, does the husband who kills his wife impair his right under the statute of distribution to succeed to the ownership of her personal property left after payment of her debts; or, in general terms, does any one, as a consequence of an unlawful taking of human life, become thereby disabled to take a part of the estate left by the deceased, which the law gives him subject to no such conditions.
“Forfeitures for crime are unknown to our law, nor does it intercept for such cause the transmission of an intestate’s property to his distributees, nor can we recognize any such operating principle.
“No well-considered case can be found holding a doctrine contrary to this.
“The language of Mr. Justice Field in New York Mutual Life Ins. Co. v. Armstrong, 117 U. S., 591, 6 Sup. Ct., 877, 29 L. Ed., 997, in which he holds that Hunter, the murderer, could take nothing under the policy, is a pure dictum, as neither Hunter, nor any one *428representing him, was before the court in that case; and it was not the question involved in the case.
“It was this error in the opinion of Mr. Justice Field that misled the court in Riggs v. Palmer, 115 N. Y., 506, 22 N. E., 188, 5 L. R. A., 340, 12 Am. St. Rep., 819.”
See Shellenberger v. Ransom, 41 Neb., 646, 59 N. W., 935, 25 L. R. A., 564.
In the. latter case the question was fully considered, and the case reviewed, and the former holding of the Nebraska court is reversed.
The case is too long to. be copied, but there are so many pertinent points and suggestions in it "that we refer to some of them.
In regard to Riggs v. Palmer, relied on by the majority, it says, in substance, that the reasoning in that case was founded very largely on that species of judicial legislation characterized as “rational construction,” and was based upon the civil law and Code Napoleon, and not in common-law rules and maxims. 41 Neb., 641.
But, says the court, our laws of descent contain no such provisions as the Code Napoleon or the civil law, to wit, that one cannot take property by inheritance or will from an ancestor or benefactor whom he has killed.
■It was further said that this resort to the Code Napoleon was made because the result could not be reached by the rules of the common law, and that the opinion was confessedly judicial legislation.
The opinion, reasoning, and conclusion of the court *429was strongly condemned, and it lias not been followed, even in New York..
It ivas farther said, in commenting on that case, that it seems to have been largely prompted by the horror and repulsion with Avhich it may be jnstly supposed the framers of our statute Avould have viewed the crime and its consequences if they had had it in mind.
“But,” says the Nebraska court, “this is no justification to this court for assuming to supply legislation, the necessity for which had been suggested by subsequent events, but Avhich did not occur to the minds of those legislators by whom our statute of déscent was framed. Neither the limitations of the civil law nor the prompting of humanity can be read into a statute from which, Avitliout question, they are absent, no matter hoAV desirable the result to be attained may be. The facts of the case may impress on some future legislature the necessity of an amendment of our law of descent. From that source alone can such an amendment come.”
The cases of Riggs v. Palmer, of New York Mutual Life Ins. Co. v. Armstrong, of Owens v. Owens, and of Deem v. Milliken are all carefully analyzed and reviewed by the Nebraska court, and the conclusion is expressed in these words: “The well-considered cases Avarrant the pertinent conclusion that when the legislature, not transcending the limits of its poAver, speaks .in clear language upon a question of policy, it becomes the judicial tribunals to remain silent. The decision in Riggs v. Palmer is the manifest assertion of a wisdom *430believed to be superior to that of the legislature upon a question of policy.”
Tbe case of Carpenter’s Estate — Carpenter’s Appeal, 170 Pa., 206, 32 Atl., 637, 29 Atl., 145, 50 Am. St. Rep., 765, is also directly in point. In that case it was sought to deny a son any share in his father’s estate because he had murdered him in order to secure such estate. The court held that it could not be done, and the crime committed could not attaint the blood or change the law of distribution.
The court-said, in substance: “We are unwilling to exclude the son, because we have no power to do' so. From what source is it possible to derive such a power? The law casts the estate on certain persons, and this is absolute and peremptory, and the estate cannot be diverted from these persons and given to others without violating the law.
“It is the act of law which casts the descent of estates, and it cannot be regulated or controlled by the acts, the follies, the frauds, or the crimes of individual.persons.”
The authorities are all reviewed. Owens v. Owens, Deem v. Milliken, and Shellenberger v. Ransom are approved, while Riggs v. Palmer is repudiated, and Ins. Co. v. Armstrong is shown to be not in point.
I can add nothing to the reasoning and sound law of these cases, and I have no power to disregard these principles and rules of law.
If Mrs. Justice died the beneficiary in this policy, and her husband was entitled to its proceeds jure *431mariti, and the fund is in the court, in the hands of the husband’s administrator, to be páid to the party entitled, it cannot be withheld from the husband’s next of kin or creditors unless the law is ignored, and the rules which govern the devolution of property are disregarded ; and this upon the theory that this court can in this way punish the husband for his crime.
I most respectfully dissent from such conclusion.
But, if this could he done, .it still does not reach the merits of this case.
The husband is not a party to this suit. His next of kin and creditors are the persons who are interested. Upon what principle can they he punished for the crime of Mr. Justice?
The law cast the title to the property upon him, whether by statute or common law. It vested in him, and can only he divested out of him by declaring it forfeited in the hands of his innocent representatives.