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land, and had made said Patrick Hogan no compensation for the improvements made by him, said Patrick Hogan, thereon, and that he, Patrick Hogan, had a just, legal and moral claim upon his father, for such labor and improvements upon said piece of land at the time of making said application for insurance upon the life of his father, and the issuing the policy thereon, then the court instructs the jury that such facts would constitute an insurable interest in Patrick Hogan in the life of his father, John Hogan."

As also to the refusal to give the following instructions, which were asked on behalf of the defendant:

"If you shall find, from the evidence, that the applications for insurance bearing date December 29, 1868, and October 28, 1872, offered in evidence, and purporting to have been made by John Hogan, were really, in substance, the application of Patrick Hogan for insurance on the life of his father, then you will inquire whether Patrick had an insurable interest in the life of his father which would support a policy for $10,000:"

"In determining this question, you will inquire whether, from the evidence, it appears that, at the time of making such applications, said Patrick had any pecuniary interest, as creditor or otherwise, in the life of his father, or any reasonable expectation of profit or advantage which might be thwarted. by his father's death, for the law will not enforce policies of insurance procured for mere gambling or wager purposes upon lives, on the continuance of which the assured can not be deemed to have an insurable interest; and the mere relation of father and son, where both parties are of mature years, and live apart, in independent pecuniary circumstances, and mutually entirely independent of each other, and having no business relations with each other, does not create an insurable interest in the son on the life of the father; and, in deciding whether, in this case, Patrick Hogan had such an interest in his father's life as will support the insurance pro

Opinion of the Court.

cured, you will take into account all the evidence as to the respective ages and situations in life of the father and son, and their business and social relations and all other facts. which tend to show whether, as above defined, the son had an insurable interest in his father's life, at the date of his application aforesaid."

"You are further instructed that, though a party may have some insurable interest in the life of another, as creditor or otherwise, yet, if the amount of insurance procured upon such life appears palpably to be very largely in excess of any possible loss the assured can suffer from the death of the insured, then the presumption of a gambling or wager insurance arises, which calls upon the assured to show that such insurance was not procured as a mere cover for gambling, or a wager upon the life of the insured; and, in this case, if you believe, from the evidence, that the plaintiff had some interest of an insurable character, as already defined, in his father's life, at the date of his several applications for insurance, yet, if you find, from the evidence, that the amount procured was vastly disproportionate in its excess to any probable loss which Patrick might suffer from his father's death. such circumstance has a tendency to prove that the insurance was procured for mere purposes of speculation, and as a cover for gambling, and if, from the evidence, you shall find that such was the fact, then the plaintiff can not recover in this action."

Under the facts, we consider that Patrick Hogan had no just or legal claim upon his father for labor or improvements, and that should not have been submitted to the jury as a question for them to find upon. A moral claim would not constitute an insurable interest in behalf of one as a creditor. The facts, as we regard, were no more than evidence tending to show an insurable interest, and should not have been declared by the court to constitute an insurable interest.

As said by the court in the case of Reese v. The Mutual Benefit Life Insurance Company, 23 N. Y. 516, "A policy

Opinion of the Court.

obtained by a party who has no interest in the subject of insurance, is a mere wager policy."

"But policies without interest, upon lives, are more pernicious and dangerous than any other class of wager policies, because temptations to tamper with life are more mischievous than incitements to mere pecuniary fraud." And see 3 Kent's Comm. 11th Ed. 462-3.

It is said, that every man has an interest in his own life to any amount he chooses to value it, and may insure it accordingly. But what is such an interest in the life of another as will support a contract of insurance upon the life, is confessedly not as yet well defined under the authorities. Some of them tend in the direction that the mere relationship, as between father and son, reciprocally, is a sufficient foundation upon which to rest an insurable interest.

Mr. May, in his late treatise on the Law of Insurance, sec. 107, says that precise question yet remains to be decided, and he states, as the result of his review of the authorities, his conclusion to be, that the relationship seems to be of little importance except as tending to give rise to the circumstances which justify a well-founded expectation of pecuniary advantage from the continuance of the life insured, or risk of loss from its termination.

Mr. Bliss, in his work on Life Insurance, sec. 31, seems to arrive at essentially the same conclusion. We are disposed, from an examination of the authorities, and our own sense of the requirement of sound public policy, to concur in such conclusion, and hold that the mere relation here of father and son did not constitute an insurable interest in the son in the life of the father, unless the son had a well-founded or reasonable expectation of some pecuniary advantage to be derived from the continuance of the life of the father.

We do not regard as really holding anything different, the case, cited as a contrary authority by appellee's counsel, of Insurance Company v. Bailey, 13 Wall. 619, where the court, in discussing this question, say, as the better opin

Opinion of the Court.

ion, "that it is sufficient to show that the policy is not invalid as a wager policy, if it appear that the relation, whether of consanguinity or of affinity, was such, between the person whose life was insured and the beneficiary named in the policy, as warrants the conclusion that the beneficiary had an interest, whether pecuniary or arising from dependence or natural affection, in the life of the person insured."

We think this may consist with the idea that it is the wellfounded expectation of advantage to be derived from the continuance of the life insured which makes the insurable interest in it, and not the mere relationship as between father and son, under any and all circumstances.

The circumstances of the situation of the parties, as bearing in this connection, were, that, at the time of the application for the original policy, John Hogan was an infirm man, having but a partial use of his right arm and leg, unable to labor, engaged in no business, and sixty years of age, as the application states, though his age was a point in dispute, there being evidence tending to show he was at least five years older. He had four children; had been married to a second wife about four years before, by whom he had a young child. He left an estate of some $13,000, and a legacy by his will of $1000 to Patrick Hogan. The latter was forty years of age, living away, in another county, some seventeen miles distant, with a family of children, upon a farm of his own, of 300 or 400 acres.

As respects the second refused instruction, appellee's counsel, saying nothing in justification of its refusal, asserts that it was given, and files with his brief a certificate of the clerk of the circuit court to that effect. But we, of course, can not notice it. The bill of exceptions states that the instruction was refused. We can only look to and act upon that.

Cammack v. Lewis, 15 Wall. 643, was a case where, in a policy of insurance to a creditor on the life of a debtor, the sum insured was so largely disproportionate to the amount of the creditor's claim, that the policy was held void, as

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being a mere wager policy. The principle of this decision would seem to have entitled the defendant to the instruction.

According to the views which have been expressed, the first refused instruction was substantially correct, and, we think, should have been given, as well as the second one, as also that the above ones given for the plaintiff should have been refused.

Other questions have been raised and discussed, which, in order to the disposition of the case, it is unnecessary to notice, and we pass them by, without considering them. The judgment is reversed and the cause remanded. Judgment reversed.

1.

WILLIAM H. WACHTER

V.

HARRIET ALBEE, Admx.

STATUTE OF LIMITATIONS subsequent admission

new promise. Where the Statute of Limitations has run and become a bar to an action for the recovery of a debt, a subsequent admission by the defendant that the account was correct, or that he had received the goods or money, or had executed the note sued on, is not sufficient to obviate the bar.

2. Nothing short of an express promise to pay the money, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay, will obviate the bar of the Statute of Limitations.

3. A promise made to a stranger will not take a case out of the oper ation of the Statute of Limitations. In order to give it legal force and effect, it must be made to the party to be benefited, or to some one authorized to act in his behalf.

4. Where a party has permitted a debt to run, without any effort to collect it, until the Statute of Limitations can be pleaded in bar of the action, a court will not aid him on slight proof; on the contrary, the evidence should be clear and satisfactory to overcome the bar of the statute.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.