#### L. W. ANDERSON, Administrator of PENELOPE BARNES, v. LIFE INSURANCE COMPANY OF VIRGINIA and N. R. PARKER.

(Filed 25 February, 1910.)

Insurance — Procurement of Death of Insured — Fund, Right to.

A beneficiary who has caused or procured the death of the insured under circumstances amounting to a felony cannot recover on the policy; but when the contract of insurance was made with the company by the insured, and the question presented is whether the representative of the insured or of the beneficiary has a right to the proceeds of the policy, it is resolved in favor' of the former.

Appeal from Ward, J., September, 1909, of Pasquotank.

Civil action, beard on appeal from a justice’s court and on facts agreed.

Tbe facts formally agreed upon were as follows: “Tbat on 1 February, 1909, Penelope Newby, now Barnes, obtained from tbe Life Insurance Company of Virginia a policy of insurance on ber life for tbe benefit of Setb Newby, ber brother; tbat botb Penelope Barnes and Setb Newby died on 3 July, 1909; tbat Setb Newby died by bis own band before Penelope Barnes .died; tbat Penelope Barnes was murdered by Setb Newby; tbat tbe Life Insurance Company of Virginia bas paid to N. R. Parker, administrator of Setb Newby, deceased, tbe sum of $110, tbe amount due under tbe said policy of insurance, witb tbe understanding by all parties tbat Parker shall bold money to abide determination of this action, and tbat tbe policy of insurance hereto attached is an exact copy of tbe original policy of insurance, and tbe samé is hereby made a part of this statement of facts.”

*2Upon these facts the court gave judgment for plaintiff, and the defendant N. R. Parker, administrator of Setb Newby, appealed.

0. E. Thompson for plaintiff.

E. L. Sawyer for defendant.

Hoke, J.,

after stating the case: It is a principle very generally accepted that a beneficiary who has caused or procured the death of the insured under circumstances amounting to a felony will be allowed no recovery on the policy. Vance on Insurance, 392-393; Cooley’s Insurance Briefs, 3153; 25 Oyc., 153; 3 A. and E. (2 Ed.), 1021.

This wholesome doctrine, referred by most of the cases to the maxim, Nullios commodum capere potest de injuria sua propria, has been uniformly upheld, so far as we are aware, except in certain cases where the interest involved was conferred by statute, and the statute itself does not recognize any exception. Such an instance has occurred in our own Court, in Owens v. Owens, 100 N. C., 240, where a widow convicted as accessory before the fact to her husband’s murder was awarded dower under the statute — a decision which caused an immediate amendment of the statute, Laws 1889, ch. 499; and this amendment has since prevailed as the law of the State on-that subject.

The authorities are also to the effect that in cases like the present, where the contract is made between the insured and the company for another’s benefit, that is, a valid contract of that character, a felony of the kind indicated on the part of the beneficiary will not relieve the company of all liability on the policy, but recovery can be had usually by the representative of the insured and for the benefit of the latter’s estate. Vance and Cooley, supra; Schmidt, admr., v. Ins. Co., 112 Iowa, 41; Supreme Lodge v. Menkhausen, 209 Ill., 277; Ins. Co. v. Davis, admr., 96 Va., 737; Shea v. Mass. Benefit Assn., 160 Mass., 289; Tyler v. Odd Fellows Relief, etc., 145 Mass., 134; Cleaver et al. v. Mutual Res. Fund, L. R. Q. B., 1892, p. 147.

This latter ruling would very likely not obtain in an ordinary life policy, where a valid contract of insurance had been made and purported to be between the company and the beneficiary, and such, beneficiary was and continued to be throughout the owner of the policy and of all interest in it. Such a position, however, is not presented here in any aspect of it, as the company recognizes its liability on the policy, and the question is on the right to the fund as between the representative of the insured and of the beneficiary. On that question, and under *3tbe authorities cited, there is no error in the ruling of the court below, awarding the fund to the representative of the insured, and the judgment to that effect is affirmed.

Judgment affirmed.