Page:Federal Reporter, 1st Series, Volume 7.djvu/625

 BR0CKHAU8 V, KEMNA. 613 �F, C. Winkler, in support of demurrer. �F. W. Cotzhaiisen and Geo. L. Jones, contra. �Dyeb, D. J. The determination of the first ground of demurrer involves the consideration of the rights and equities of the parties springing from the procurement of the policies of insurance npon the life of the complainant, and from the transactions recited in the bill. And first, I do net see how even a court of equity can enforce against Mrs. Kemna, as a bar to any legal right she otherwise had, the arrangement first made in family council and subsequently reduced to writing, and exeeuted as a written agreement, by which the proceeds of the insurance policies should be put into the hands of Franziska Brockhaus and distributed and used by her for the equal benefit of the three children. It may be that this arrangement was, in a measure, the inducement to the exchange of the original policies for new and paid-up poli- cies, though it would seem from the averments of the bill that the Burrender of the first policies had been determined upon before the family arrangement was made, and that the real and original occasion of it was the inability of the insured to pay the premiums and keep those policies in force. When the arrangement was made, and when it was subsequently put in the form of a written agreement and formally exe- euted, Mrs. Kemna was under the disability of infancy. As to her the agreement was voidable, and if she had any rights in the insurance on her father's life, that agreement was liable to be disaffirmed and repudiated on the attainment of her majority. And, if she has now chosen to repudiate it, the court does not perceive how, even in equity, it can be interposed against legal rights, which, without such agree- ment, would exist in her favor. I am of opinion, therefore, that in considering the case we are remitted to the question whether Mrs. Kemna had any vested right or interest in the paid-up policy of insurance in which she was named as ben- eficiary, or in the proceeds of that insurance, though in pass- ing upon that question it may be necessary to further con- sider the effeot of the alleged family understanding or agreement. ��� �