In Error to the Circuit Court of the United States for the Northern District of California.

This was an action by Eudora Y. Smith, administratrix with the will annexed of William F. Smith, deceased, against the New York Life Insurance Company, on a policy of insurance. The circuit court gave judgment for the plaintiff. 57 Fed. 133. Defendant brings error.

This is an action at law .brought by Mrs. Eudora V. Smith, as administratrix with the will annexed of the estate of Dr. William F. Smith, deceased, to recover of and from the New York Life Insurance Company the sum of 85,800, alleged to be due and payable on a life insurance policy which was issued and delivered to Dr. Smith on the 18th day of July, 1S87. The record shows: That Dr. Smith died on April 7, 1891, at Chicago, 111. That at the time of the issuance of the policy, and at the time of his death, he was a resident of the state of Illinois. That he left, surviving him, a widow, the defendant in error, a resident of San Francisco, Cal., and two sons, La.ra Anderson Smith, a minor, residing in San Francisco, and Paul Smith, of age, residing at Springfield, Ohio. That he had formerly resided In California, That, before leaving said state, financial and domestic difficulties had arisen Between himsell' and wife. That, under the laws of California (section lot of the Civil Code), she had brought an action and obtained a judgment against him in the superior court, of the city and county of San Francisco for maintenance and support, upon which judgment there was due at tile time of his death the sum of $10,000. That prior to his death the policy of insurance, together with the sum of $5,000, had beon sent by him to San Francisco, in order to enable him to comply with the terms of a certain agreement which had been entered into by himself and wife, to the effect 'hat the policy in question should be delivered to her in trust for their son Lara, and that the $5,000 should be paid to her upon her obtaining a divorce from him. That the policy was sent to his counsel, M. L. Campbell, and the money to his agent, Jeremiah Lynch. That no action for a divorce had ever been commenced. That, offer his death, Mr. Campbell delivered the policy to Mr. Lynch, and it was thereafter, by an order of the superior court of the city and county of San Francisco, delivered to Mrs. Smith, an Uto special administratrix of her husband’s estate. That on April 4, 1891, three days prior to Ms death. Dr. Smith, being then indebted to one Dr. ■T. B. Murphy in the sum of $8,400, made, executed, and delivered to said Murphy the following instrument, in writing:

“Chicago, April 4, 1S91.

“For value received, I hereby sell, assign, and transfer to John B. Murphy all of the property, effects, choses in action, and things of value hereinaifer mentioned, and all my right, title, and interest therein: A judgment note made by Morris J. Allberger for $8,700.00 or thereabouts; a policy in. the N. Y. Mutual Life Insurance Company for $5,000.00 or thereabouts; accounts due me as shown by my books, and said books; my horse and buggy: all my stock bonds in all corporations and associations; all my library, books, instruments, office furniture, household furniture, and effects of evos1;1, kind soever. And I hereby authorize said Murphy to talco immediate pos session thereof, or possession thereof at any time thereafter.

“Wm. F. Smith. ISeal.]”

—That this document was executed and delivered to, and was accepted by. J. IS. Murphy, in payment of the indebtedness of Smith to him. That Mur phy thereafter took possession of all the property therein described that war. in the city of Chicago. That, after this instrument was executed, Dr. Smith made his will, wherein he bequeathed to John B. Murphy, to be first paid out of his estate, the sum of $8,400, to his son La.rz Anderson Smith the sum of $50, to Budora Baseom (the defendant in error), designated “as formerly my wife,” $50; and, subject to these bequests, he devised and bequeathed-all of Ms estate to Elizabeth C. Merrill. That the party named as executor of the wall declined to act, and thereafter, upon proceeding-; regularly had in the proper court in Cook county, 111., letters of administration upon said estate were issued to the Jennings Trust Company, a corporation duly organized and existing under and by virtue of the laws of the stale of Illinois; and that said company, under its letters of administration, made a demand upon the insurance company for payment of the amount due on the policy, which was refused; and the trust company thereupon commenced an action to recover the said amount, which action Jr< still pending and undetermined in the circuit court of Cook county, 111. It is claimed that said action was brought and is being prosecuted for, on behalf of, and at the request of, J. B. Murpliy. The policy in question has never been paid. Judgment was rendered in favor of Mrs. Smith.