
    The Fraternal Mutual Life Insurance Company v. Henrietta Applegate.
    Where A., acting as the agent of his wife, takes out in her name and for her sole use, a policy of insurance on his life, from a company whose charter makes such policy the exclusive property of the wife, and exempts its proceeds from liability for the husband’s debts, the wife is, as to such policy, to be regarded as a feme sole.
    
    Where, in such a case, representations in regard to the condition of his health are made by the- husband, in his application for the policy, which, by the terms of the policy, are made part thereof, the subsequent declarations of the husband, made pending his unauthorized negotiations for the surrender of the policy, and tending to show the false or fraudulent character of the representations upon which the policy issued, are not competent evidence in a suit brought by the wife upon the policy after the husband’s death.
    In error to the Superior Court of Cincinnati.
    *This action was originally brought by the defendant in error upon a life-policy, dated June 7, 1851, procured by Henry S. Applegate, in the name, and for the sole use and benefit of, his wife, the said defendant in error, at the office of the plaintiff in error, for $2,000.'
    The application was signed “Henrietta Applegate, per H. S. Applegate,” and contained answers to numerous interrogatories, which, by the terms of the policy, were made part thereof. One of these answers, so made by H. S. Applegate, states that he “ had not since birth been afflicted with consumption, or any other disease of the lungs, spitting of blood, habitual cough,” etc., “or any other disease tending to shorten life.” The declaration contains two counts in covenant, in the ordinary form, making profert of the policy. The defendant set out, upon oyer, the policy, and the application containing the interrogatories and answers, and filed eight pleas. ‘ •
    The first plea was non est factum; the next four set up misrepresentation and false allegations in the application, as to the health of the said Henry S. Applegate, and as to the spitting of blood; and were traversed by replication.
    The sixth plea alleged that the deceased procured the policy in the name of his wife, and surrendered it afterward to the company, in consideration of the supposed misrepresentation, and the issuing of a new policy upon his life, dated June 21, 1852, for the benefit of his representatives, for five hundred dollars, without premium. To this plea the plaintiff below demurred, and the court sustained the demurrer.
    The seventh plea averred that H. S. Applegate, with the consent of the defendant in error, surrendered the policy sued on, an d took out a new one for $500, which she accepted.
    In the eighth plea this surrender of the policy, and the acceptance of another for $500 in lieu thereof, are stated as the acts of the defendant in error.
    These last two pleas were traversed by replication.
    The issues of fact thus made presented two grounds of defense : 1. That the application whereon the policy issued was untrue; 2.
    *That the policy was surrendered and a new one taken in lieu thereof by Mrs. Applegate.
    At the trial below the plaintiff in error offered in evidence certain statements of Henry S. Applegate, made more than a year after the date of the policy sued on, in regard to his having spit blood before he made the answer on that subject contained in the application for the policy. The court refused to permit evidence of these statements and admissions to be given for the purpose of establishing the condition of his health before the policy was issued, and the plaintiff in error excepted.
    The court below tried the case on submission, and found all the issues in favor of Mrs. Applegate. The plaintiff in error moved for a new trial. The motion was overruled, and judgment entered. This judgment was affirmed on error at the general term of the Superior Court. To reverse the judgment of affirmance is the object of the present petition in error.
    It is assigned for error that the court below sustained the demurrer to the sixth plea — rejected the evidence of Henry S. Applegate’s statements, mentioned above — found the issues in favor of the defendant in error, and refused a new trial.
    
      Taft & Perry, for plaintiff in error argued :
    I. That the original policy was surrendered for a valuable consideration, and that that surrender was binding on the parties. 2 Story’s Eq., secs. 1378, 1380, 1388, 1382, 1390, 1389, 1392, and subsequent sections to sec. 1402; 2 Roper H. & W. 182, chap. 19, sec. 2; 2 Ves. 75, 610, 612, 191; 11 Ves. 220, 221; 18 Ves. 435, 436; 17 Johns. 548; 1 Johns. Ch. 450, 350; 4 Barb. 407, 546.
    II. That the original policy was void for the reason that Henry S. Applegate had been afflicted with “ spitting of blood ’’ — a disease ■tending to shorten life — before the policy was issued, contrary to his statements and the statements contained in the application of his wife; and that his declarations upon that subject, which the ■court below ruled out, were competent, because:
    1. They were the declarations of the person who best knew the facts of the case, if he is not to he considered the only person who •*could absolutely know them. The declaration of a member of a family on a question of pedigree (1 Greenl. Ev. sec. 109-123), of a former owner of real estate, made while owner (7 Conn. 319; 4 Ind. 230; 3 Rawle, 437; 4 S. & R. 174; 6 Watts, 388), stand on reasons not so strong as the declarations of a party as to his own health.
    The statements of patients to their physicians are taken as competent evidence on the subject of their health, because they best know the facts. Aveson v. Lord Kinnaird, 6 East, 188; 1 Greenl. Ev., secs. 109, 123; Ang. F. & L. Ins., sec. 315.
    2. They are declarations of the man upon whose statements the policy was issued, and the falsehood of which was, by its express terms, to make void the policy. Aveson v. Lord Kinnaird, 6 East, 188.
    
      Kebler & Force, for defendant in error, insisted:
    1. That the policy which her husband attempted to surrender was her separate property beyond his or his creditors’ reach, and that the attempted surrender was void. Swan’s Rev. Stat. 480; 49 Ohio L. 220.
    2. The husband’s declarations, which the court rejected, were not competent for the purpose for which they were offered.
    
      The fact that he was dead could not make them competent. Lund v. Tyngsborough, 9 Cush. 36.
    They were not admissions against interest; for they concerned his wife’s separate property, in which'he had no interest whatever.
    They were not competent as declarations of an agent. Smith v. Bodfish, 39 Maine, 136; Burnham v. Ellis, Ib. 319; Franklin Bank v. Cooper, Ib. 542; Patton v. Meinsinger, 25 Penn. St. 393; Runk v. Ten Eyck, 4 Zabr. 756; Welch v. Johnson, 2 Sneed, 73; Cov. & Lex. R. R. v. Ingles, 15 B. Mon. 637; Balt. & Ohio R. R. v. Gallagher, 12 Gratt. 655.
    The admissions of a husband will not bind a feme covert as to her separate estate. Dawson v. Hall, 2 Gibson (Mich.), 390.
    They were not admissible on the ground of being declarations of a sick person; for declarations of a sick person are competent *only so far as they relate to his. condition at the time when the statements are made. Gardiner Peerage Case, note to Aveson v. Kinnaird, 6 East, 188; Lusk v. McDaniel, 13 Ired. 485; Eckles v. Bates, 26 Ala. 655; Allen v. Vancleave, 15 B. Mon. 236.
    The case of Aveson v. Kinnaird, 6 East, 188, is overruled in Stobart v. Dryden, 1 Mees. & W. 615.
   Scott, J.

The first question which arises in the case is: Did the court below err in sustaining the demurrer to the sixth plea ?

The general law in relation to life insurances taken for the benefit of wives, provides that “ it shall be lawful,for any married woman by herself, and in her own name,” etc., “ from her separate property, to cause to be insured for her sole use the life of her husband,” etc. Swan’s Stat. 480. By the eighth section of the act incorporating this company (49 Ohio L. 220), it is provided, “that policies of insurance may issue to any married woman in her name, or in the name of a third person, as trustee, to cause to be insured for her sole use the life of her husband; and in case of her surviving him, the amount shall be payable to her for her sole use and benefit, free from any claims of the creditors or representatives of her husband, provided the annual premium shall not exceed the sum of $150, unless paid from the private property of the wife.”

These provisions treat a married woman as a feme sole in respect to policies of insurance taken out in her name upon the life of her husband. Such policies become her separate property, and are placed beyond the reach of her husband or his creditors.

Henry S. Applegate had, therefore, no legal right to control.this policy, and the unauthorized surrender of it by him, as set up in the sixth plea, constituted no bar to the action; and the demurrer was, therefore, properly sustained.

It is shown by the record that the plaintiff in error, upon the trial in the court below, offered in evidence certain statements made by Henry S. Applegate to Doctor Yattier and several other witnesses, during the negotiation for the surrender of the policy, and the substitution of the $500 policy in its stead, which took *place more than a year after the issuing of the policy upon which suit was brought. This policy was issued June 7, 1851.

Mr. Applegate was taken with hemorrhage of the lungs in December following, from which he never fully recovered; and died of pulmonary consumption about the close of the year 1852. The statements offered in evidence consisted of admissions made by said Henry S. Applegate in relation to the condition of his health before the date of the policy sued upon; that he had spit blood before that time, and that his declaration upon that subject, contained in the application for the policy, was untrue.

Counsel for the defendant in error objected to the reception of these admissions by the court, “ for the purpose of establishing the condition of Henry Applegate’s health before the issuing of the policy; which said objection was sustained by the court, and thereupon the court refused to receive and consider the said declarations for the said purpose.” Was this ruling erroneous ?

There is no direct evidence in the case, that Applegate, in the surrender of his wife’s policy, or in the negotiations which preceded this arrangement, acted as the authorized agent of Mfs. Applegate. It is not shown that she had knowledge of the transaction at the time, or ratified it afterward. The surrender was made in writing by Henry S. Applegate, in his own name. He did not even profess, as in the taking out of the policy, to be acting as the agent of his wife. The transaction was manifestly against her interest, for the second policy was for but one-fourth the amount, of the former, and was for the benefit of other parties. Her assent can not, therefore, be presumed. The court below accordingly found, and as we think properly, in her favor, upon the issues presented by the seventh and eighth pleas.

The statements in question, then, are the declarations of a stranger, one who is neither a party to the suit, nor was, at the time of .making them, acting as the agent of a party. They are not the declarations of a sick person in relation to his condition at the time of making them; for they relate to transactions and a state of facts long past. They were not admissions against interest; for they could injuriously affect only his wife’s separate property. They were not the statements of one who had been a *witness on the trial, offered to impeach his credit; but were offered and excluded merely as proof of the facts claimed to have been thus stated. It may be true that these were the declarations of the person who best knew the facts of the case; but whatever weight this consideration might properly give to competent evidence, it can not remove the objection to its competency. Coming from the witnesses through whom it was offered, it was still mere hearsay. Nor do the declarations become competent because made by a person deceased, and who can not, therefore be produced as a witness upon the trial. This circumstance alone, however unfortunate for a party, will never convert hearsay into competent evidence.

And it can not be claimed, that from the mere relation of husband and wife, a feme covert is bound, in respect to her separate property, by the admissions or declarations of her husband. Indeed, I am not aware of any recognized rule in the law of evidence, under which such declarations can be held competent.

Counsel for plaintiff in error, rely mainly on the authority of Aveson v. Kinnaird, 6 East, 188.

The admissibility of the evidence in that case was placed upon grounds which do not exist in the case before us. The declarations there, were regarded as a species of cross-examination, and as statements made by a sick person in relation to the condition of her health at the time of making them. Besides, the authority of that case has not been acquiesced in; and the contrary doctrine was since held in Stobart v. Dryden, 1 Mees. & W. 615, where the question was considered both on principle and authority.

We think that the evidence, viewed in connection with the purpose for which it was offered, docs not fall within any established exception to the general rule in regard to hearsay, and was therefore properly excluded.

Discarding these admissions of the deceased, we have no doubt that the finding of the court below, upon the issues made by the first five pleas, was fully warranted by the evidence.

Judgment affirmed.

Bartley, C. J., and Swan, Brinicerhoff, and Sutliff, JJ., concurred.  