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the policy. If Wyness had such an accident insurance policy on his life, it might be 808 to the financial interest of his widow that it be proved that he was accidentally killed, and her knowledge of the existence of such a policy was relevant as affecting her credibility as a witness. Her information on the subject was material; its source immaterial. "The rule excluding secondary evidence does not apply to matter not relevant to the merits, but drawn out on cross-examination to test the temper and credibility of the witness": Abbott's Trial Brief, Criminal Causes, sec. 436, citing Klein v. Russell, 19 Wall. 439, 464; Kalk v. Fielding, 50 Wis. 339.

6, 7, 8. The sixth, seventh and eighth headnotes sufficiently elaborate the conclusions stated therein.

Judgment affirmed.

All the justices concurring.

HOMICIDE-DYING DECLARATIONS - ADMISSIBILITY AS EVIDENCE.-Dying declarations are admissible in evidence only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the declarations: State v. Harper, 35 Ohio St. 78; 35 Am. Rep. 596. See extended notes to Field v. State, 34 Am. Rep. 479-482; and Cox v. State, 37 Am. Rep. 83-89. A dying declaration that the defendant had no reason that the declarant knew of for perpetrating the crime, is admissible: Boyle v. State, 105 Ind. 469; 55 Am. Rep. 218; but dying declarations not part of the res gestae are not competent in exculpation of the accused: Moeck v. People, 100 Ill. 242; 39 Am. Rep. 38, and note. TRIAL-IMPROPER STATEMENTS BY COUNSEL.-Comments of counsel in arguing a case before a jury are controllable in the discretion of the trial court. This discretion is subject to review, and when counsel makes material statements, outside the evidence, likely to do the accused an injury, it is deemed an abuse of discretion when not stopped by the court on objection made at the time: Jenkins v. State, 35 Fla. 737; 48 Am. St. Rep. 267. But to be reviewable on appeal, though such comments are excepted to when made, the court must have been requested to take some action, and have erred in refusing or granting the request. Lunsford v. Dietrich, 93 Ala. 565: 30 Am. St. Rep. 79; Murray v. Doud, 167 Ill. 368; 59 Am. St. Rep. 297, and note.

HOMICIDE-INSTRUCTIONS AS TO DEGREE OF CRIME Where a conviction for manslaughter in the fourth degree might have been warranted by the evidence in a cause, it is erroneous for the court to omit entirely any mention, in its charge to the jury, of the fourth degree of manslaughter, after instructing them that under the indictment they might convict the defendant of either murder in the first or second degree, or of manslaughter in the second or third degree, especially if it omits to intimate to the jury that it had the power to acquit the prisoner if the evidence warranted an acquittal: Pinder v. State, 27 Fla. 370; 26 Am. St. Rep. 75.

CASES

IN THE

SUPREME COURT

OF

INDIANA.

BOOKOUT V. BOOKOUT.

[15) INDIANA, 63.]

MARRIED WOMAN-CONVEYANCE ON THE EVE OF MARRIAGE TO DEFEAT RIGHTS OF.-A secret voluntary conveyance, made by a man on the eve of his marriage, operates as a fraud upon his wife, and will not be permitted to defeat her of her dower or other interest in the lands conveyed thereby, where he has represented to her that he is the owner of such lands as an inducement to the marriage.

J. M. Brown and S. H. Brown, for the appellant.

M. E. Forkner, for the appellee.

64 JORDAN, J. This was a suit in the lower court by appellee to set aside certain conveyances of real estate made by her late husband, Robert Bookout, to appellant and others prior to their marriage, on the grounds that said conveyances were executed for the fraudulent purpose of defeating her inchoate interest in the lands conveyed. She was successful in her action in respect to twenty-five acres of the land conveyed to appellant, in which the court found she was entitled to her interest as widow of her deceased husband, and she was awarded partition for the same. But two questions are sought to be presented by appellant: 1. The sufficiency of the complaint on demurrer; 2. The sufficiency of the evidence to sustain the judgment.

The complaint avers, in substance, that the plaintiff, Mrs. Bookout, is the lawful widow of Robert Bookout, deceased, and that he and the plaintiff were married to each other, and became husband and wife in August, 1891, and that she remained his said wife until the date of his death, which occurred in October, 1895. That at the time of said marriage her husband, Robert Bookout, was in actual possession of the lands described in the

complaint, and was occupying the same as his homestead. And it is averred that he was in fact the owner of said real estate and in visible and open possession thereof at the time of their marriage under a clear and indefeasible title of record; that to induce the plaintiff to marry him he represented to her that he was the owner of all the lands in question, and promised, in consideration that she would marry him, that if she survived him as his widow, she would have and receive her rights as such in and to said lands. It is alleged that the public 65 records disclosed that the said Robert Bookout was the absolute owner of said realty, and that the plaintiff relied on said representations and the showing of title as exhibited by said records, and in good faith, and without any notice of the fraudulent conveyances mentioned in the complaint, consented to and did marry the said Robert Bookout, as above stated; that she was induced to marry him by reason of said representations of ownership of said lands, and without the same having been made she would not have entered into said marriage relation. The complaint further alleges that a short time prior to the said marriage, and in anticipation thereof, and for the purpose of cheating and defrauding her in her marital rights, said Robert Bookout executed two deeds purporting to convey the lands in controversy to the defendants, who are his children and grandchildren by a former marriage, the plaintiff being a childless second wife. It is further averred that these deeds were executed wholly without any consideration, and for the fraudulent purpose, as heretofore stated, all of which the defendants had full knowledge at the time of the execution thereof; that in furtherance of said fraudulent purpose, and in order to conceal the fact of their execution from the plaintiff, the defendants withheld said deeds from the public records for more than forty-five days from the time of their execution, and, in fact, until within a few months of the death of the said Robert Bookout; that the lat ter at his death possessed no other lands than these in dispute, and owned at said time only a small amount of personal property, not exceeding five hundred dollars in value. The prayer is that the conveyances mentioned be set aside as fraudulent and void as to plaintiff, and that she be adjudged the owner, during her life, of the undivided 66 one-third of said real estate, and that she have partition of her said interest, and that the remainder of the realty be declared subject to a lien for the five hundred dollars allowed her under the law. Marriage, in the eye of the law, is held to be a valuable con

sideration, and the wife is regarded as a purchaser for a valuable consideration of all property which accrues to her by virtue of her marital rights, or by virtue of any valid antenuptial contract: Derry v. Derry, 74 Ind. 560. Not only is marriage a valuable consideration, but it is the highest consideration recognized by law: Richardson v. Schultz, 98 Ind. 429, 435. Persons about to marry occupy a position of confidential relations to each other requiring the greatest good faith: 14 Am. & Eng. Ency. of Law, 546. Consequently, the doctrine affirmed and supported by the authorities is that a secret voluntary conveyance by a man of his lands on the eve of his marriage operates as a fraud upon his wife, and cannot serve to defeat her upon his death of her dower or interest in such lands allowed to her under the law as his widow. Therefore, she may suc cessfully assert her rights thereto as though such conveyance had not been made. The facts set up in the complaint bring the case fully within the rule affirmed by the decisions of this court, which, in effect, are that, where a man and a woman are about to enter into marriage relations with each other, and one represents to the other that he or she, as the case may be, is the owner of certain property, as an inducement to such marriage, and such representations enter into and operate as a part of the consideration or inducement to the consummation of the marriage, then a secret voluntary conveyance of the property made on the eve of the marriage would be fraudulent, and could not defeat the rights under the law of the surviving husband or 67 widow, as the case might be: Dearmond v. Dearmond, 10 Ind. 191; Alkire v. Alkire, 134 Ind. 350.

Appellant insists that the second paragraph of the complaint is bad, for the reason that it does not aver that the husband owned the lands at the time of the marriage, or that he died seised thereof, as owner. In this contention, however, counsel for appellant are mistaken. The second paragraph of the complaint, while somewhat more specific in its averments, is substantially the same as the first, from which we have summarized the material facts heretofore mentioned and set out, and it expressly alleges that the husband was in fact seised of the lands in controversy at the time of his marriage, and also at the date of his death. Or, in other words, the paragraph proceeds upon the theory that the husband in fact was seised of the lands in dispute at the date of his marriage, and also at his death, for the use of the plaintiff, or, at least, so far as her interest therein was concerned, notwithstanding the fraudulent

conveyances. The complaint is sufficient, and the court did not err in overruling the demurrer thereto. Without passing upon the question of whether the motion for a new trial was seasonably filed, we have considered the evidence in the case, and are of the opinion that it is sufficient to sustain the judgment. The judgment is therefore affirmed.

FRAUDULENT CONVEYANCES ON EVE OF MARRIAGE.Conveyances of real estate made by a man who is about to marry. without the knowledge of his intended wife, and with the object, and for the purpose, of defeating the interest which she would acquire in his estate by the marriage, are, as to her, fraudulent and void: See monographic note to Thayer v. Thayer, 39 Am. Dec. 218; Cranson v. Cranson, 4 Mich. 230; 66 Am. Dec. 534, and note; Swaine v. Perine, 5 Johns. Ch. 482; 9 Am. Dec. 318. So, a voluntary conveyance of property on the eve of marriage, without the knowledge of the intended husband, will be set aside as a fraud on the marital rights: Manes v. Durant, 2 Rich. Eq. 404; 46 Am. Dec. 65, and note. See note to Lamb v. Lamb, 30 Am. St. Rep. 230.

ROACH V. CLARK.

[150 INDIANA, 93.]

APPELLATE PROCEDURE-WHEN NOT CONTROLLED BY THE PROBATE PROCEDURE ACT.-Where the remedy sought by or against an estate is not provided by the probate procedure act, but must be enforced under the Civil Code, an appeal is governed by such code. Therefore, where the proceeding is to obtain a writ of assistance to place a purchaser in possession, the appeal may be taken within the time allowed by the Civil Code.

THE ISSUING OF A WRIT OF ASSISTANCE is within the discretion of the court, but can be justified only when the right is clear, and there is no equity or appearance of equity in the defendant, and when the sale and proceedings under the decree are beyond suspicion.

A WRIT OF ASSISTANCE WILL NOT BE ISSUED where there is a bona fide contest as to the right to the possession of land under a sale, or where the rights of the parties have not been adjudicated in the principal suit.

Thomas D. Evans, for the appellant.

L. H. Stanford, G. W. Pigman, Reuben Conner, and J. M. McIntosh, for the appellees.

94 HACKNEY, J. The appellee instituted this proceeding, by petition, for a writ of assistance to place him in possession of an eighty acre tract of land alleged to have been purchased by him at a sale by an administrator upon an order of the court below. Thomas W. Roach, responding to the petition, alleged that the decedent, who died the owner in fee simple of said real estate, left him surviving as her widower; that she left

AM. ST. KEP., VOL. LXV.-23

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