In the use of the words "without fraud," the court evidently means actual fraud participated named in it as the beneficiary or beneficiaries, | effected without fraud directly and on their face This must ordinarily be so where the contract is directly with the beneficiary; in respect to policies running to the person insured, but payable to another having a direct pecuniary interest in the life insured; and where the proceeds are made to enure by positive statutory provisions. in by all parties, and not fraud inferred from "The policies in that case were effected in the name of the husband, and by him transferred to a trustee for his wife at a time when he was totally insolvent. They were held to be valuable choses in action, the property of the assured, liable to the payment of his debts; and hence their voluntary assignment operated in fraud of creditors, and was void as against them under the Statute of 13th in the name of the wife, and in point of fact was Elizabeth. Here, however, the policy was effected given under an agreement for the surrender of a previous policy for the same amount also issued in Mrs. Hume was confessedly a contracting the wife's name The question of good faith party to the Maryland policy; and as to the or fraud only arises in the latter case; that is, when the title of the beneficiary arises by assignment Connecticut contracts, the statute of the State When it exists by force of an original issue in the [207] where they were made and to be performed, name, or for the benefit of the beneficiary, the title explicitly provided that a policy for the benefit is good, notwithstanding the claims of creditors. There is no anomaly in this, nor any conflict of a married woman shall enure to her separate with the letter or spirit of the Statute of Elizabeth, use or that of her children; but if the annual because in such cases the policy would be at no time premium exceed three hundred dollars, the the property of the assured; and hence no question of fraud in its transfer could arise as to his credamount of such excess shall enure to the bene-itors. It is only in the case of the assignment of a policy that once belonged to the assured that the question of fraud can arise under this Act." fit of the creditors of the person paying the The rights and benefits given by the laws of And see Etna Nat. Bank v. U. S. Life Ins. Conceding, then, in the case in hand, that The obvious distinction between the transfer of a policy taken out by a person upon his insurable interest in his own life, and payable to himself or his legal representatives, and the obtaining of a policy by a person upon the insurable interest of his wife and children, and payable to them, has been repeatedly recognized by the courts. Thus in Elliott's Appeal, 50 Pa. 75, where the policies were issued in the name of the husband, and payable to himself or his personal representatives, and while he was insolvent were by him transferred to trustees for his wife's benefit, the Supreme Court of Pennsylvania, while holding such transfers void as against creditors, Бау: "We are to be understood in thus deciding this case that we do not mean to extend it to policies creditors'. The contracts were not payable to But, even though Hume paid this money out These premiums were paid by Hume to the [208] [209] insurance companies, and to recover from them conclusive, and inquiry into his motives is The premiums form no part of the proceeds of the policies, and cannot be deducted therefrom on that ground. Mrs. Hume is not shown to have known of [210] or suspected her husband's insolvency; and if the payments were made at her instance, or with her knowledge and assent, or if, without her knowledge, she afterwards ratified the act, and claimed the benefit, as she might rightfully do (Thompson v. Am. Ins. Co. 46 N. Y. 675), and as she does (and the same remarks apply to the children), then has she thereby received money which ex æquo et bono she ought to return to her husband's creditors, and can the decree against her be sustained on that ground? If in some cases payments of premiums might be treated as gifts inhibited by the Statute of Elizabeth, can they be so treated here? It is assumed by complainants that the money paid was derived from Hume himself, and it is therefore argued that to that extent his means for payment of debts were impaired. That the payments contributed in any appreciable way to Hume's insolvency, is not contended. So far as premiums were paid in 1880 and 1881 (the payments prior to those years having been the annual sum of $196.18 on the Virginia policy), we are satisfied from the evidence that Hume received from Mrs. Pickrell, his wife's mother, for the benefit of Mrs. Hume and her family, an amount of money largely in excess of these payments, after deducting what was returned to Mrs. Pickrell, and that in paying the premiums upon procuring the policies in the Maryland and the Connecticut Mutual, Hume was appropriating to that purpose a part of the money which he considered he thus held in trust; and we think that, as between Hume's creditors and Mrs. Hume, the money placed in Hume's hands for his wife's benefit is, under the evidence, equitably as much to be accounted for to her by Hume, and so by them, as is the money paid on her account to be accounted for by her to him or them. [211] But the circumstances of each particular case should be considered, as in Partridge v. Gopp, 1 Eden, 163; S. C. Amb. 596, where the Lord Keeper, while holding that debts must be paid before gifts are made, and debtors must be just before they are generous, admitted that "The fraudulent intent might be collected from the magnitude and value of the gift.' Where fraud is to be imputed, or the imputation of fraud repelled, by an examination into the circumstances under which a gift is made to those towards whom the donor is under nat ural obligation, the test is said, in Kipp v. Hanna, 2 Bland, 33, to be the pecuniary ability of the donor at that time to withdraw the amount of the donation from his estate without the least hazard to his creditors, or in any material degree lessening their then prospects of payment; and in considering the sufficiency of the debtor's property for the payment of debts, the probable, immediate, unavoidable, and reasonable demands for the support of the family of the donor should be taken into the account and deducted, having in mind also the nature of his business and his necessary expenses. Emerson v, Bemis, 69 Ill. 541. This argument in the interest of creditors concedes that the debtor may rightfully preserve his family from suffering and want. It seems to us that the same public policy which justifies this, and recognizes the support of wife and children as a positive obligation in law as well as morals, should be extended to protect them from destitution after the debtor's death, by permitting him, not to accumulate a fund as a permanent provision, but to devote a moderate portion of his earnings to keep on foot a security for support already, or which could thereby be, lawfully obtained-at least to the extent of requiring that, under such circumstances, the fraudulent intent of both parties to the transaction should be made out. And inasmuch as there is no evidence from which such intent on the part of Mrs. Hume or the insurance companies could be inferred, in our judgment none of these premiums can be recovered. The decree is affirmed, except so far as it directs the payment to the administrators of the premiums in question and interest, and, as to that, is reversed, and the cause remanded to the court below, with directions to proceed in conformity with this opinion. Ordered accordingly. THE GEORGIA RAILROAD AND BANKING COMPANY, Piff. in Err., We do not, however, dwell particularly upon this, nor pause to discuss the bearing of the laws of the States of the insurance companies upon this matter of the payment of premiums by the debtor himself, so far as they may differ from the rule which may prevail in the District of Columbia, in the absence of specific statutory JAMES M. SMITH ET AL., R. R. COMMIS enactment upon that subject, because we prefer to place our decision upon broader grounds. In all purely voluntary conveyances it is the fraudulent intent of the donor which vitiates. If actually insolvent, he is held to knowledge of his condition; and if the necessary consequence of his act is to hinder, delay, or defraud his creditors, within the statute, the presump; tion of the fraudulent intent is irrebuttable and v. SIONERS. (See S. C. Reporter's ed. 174-182.) Charges of a railroad company-legislative control over charter-proviso-contract-exemp tion. prescribe the charges of a railroad company for the 1. The Legislature of the State has the power to carriage of persons and merchandise within its [212 [174 [175] 4imits, in the absence of any provision in the char- 3. In the 12th section of the charter of the Georgia there designated. 4. The general purpose of a proviso is to except the clause covered by it from provisions of a statute or to qualify the operation of the statute. But it is often used as a conjunction to an independent paragraph. 5. A railroad corporation is a private corporation, 6. But to effect this result the exemption must Argued Oct. 16, 17, 1888. Decided Oct. 29, 1888. IN ERROR to the Supreme Court of the Statement by Mr. Justice Field: By an Act of the Legislature of Georgia, passed December 21, 1833, the plaintiff in error was incorporated under the name of the Georgia Railroad Company, and empowered to construct a "rail or turnpike road from the City of Augusta," with branches extending to cer tain towns in the State, and to be carried beyond those places at the discretion of the Company. Laws of 1833, 256. By an Act of the Legistature, passed December 18, 1835, certain amendments to the charter were made, and among others one changing its corporate name to The Georgia Railroad and Banking Company," its present designation. or transportation of persons or property, or the On the 14th of October, 1879, the Legislature In pursuance of this Act a board was con- charter of the Company. The Act imposes a [176] Mr. Justice Field delivered the opinion of the court: the right to charge any rates for freight and | (27: 812); Stone v. Loan & Trust Co. 116 U. S. passengers not exceeding those limited in the 307, 347 (29: 636, 650). 12th section of its charter, and that the Act of October 14, 1879, is in conflict with the clause of the Constitution of the United States which prohibits a State from passing any Act impairing the obligation of a contract. They pray in their bill that the Act may be declared null and void, and inoperative against them, and that [177] the commission may be enjoined from prescribing rates of fare and freight over the railroad of the Company and its branches, or in any manner enforcing the provisions of the Act against them. To this bill the defendants demurred, on the ground that it disclosed no case entitling the complainants to relief in equity, and that they had an adequate and complete remedy at law. The court sustained the demurrer and dismissed the bill. On being taken to the Supreme Court of the State the decree was affirmed; and to review it the case is brought to this court by the Railroad Company. Messrs. Ed. Baxter and Jos. B. Cumming, for plaintiff in error: Unless an exemption is clearly established, Ruggles v. Ill. 108 U. S. 531 (27:815). The whole purpose of the statute was to fix 3 Am. & Eng. R. R. Cas. 311, 312; Ragan v. Aiken, 9 Lea, 609, 610, Platt v. Union Pac. R. Co. 99 U. S. 63, 64 (25: 429). A carrier can, in the absence of all law, Munn v. Ill. 94 U. S. 134 (24: 87). Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. As appears from the statement of the case, Art. Pursuant to this provision of the Constitution, the Act of October 14, 1879, was passed, providing for the appointment of three railroad [178] commissioners, and authorizing them to prescribe the rates of fare which railroad companies might charge for the carriage of persons and merchandise within the limits of the State. The Act does not extend to interstate railroad transportation. Laws of Georgia, 1878–9, 125. After authorizing the appointment of the three commissioners by the Governor, the Act declares that any railroad company doing business in the State, after its passage, which shall charge or receive more than a fair and reasonable toll or compensation for the transportation of passengers or freight of any description, or for the use or transportation of any railroad car upon its track or branches, or upon any railroad which it has the right to use, shall be deemed guilty of extortion, and upon conviction thereof shall be subject to certain penalties prescribed. The maximum rates were fixed in the char- The commissioners appointed are required to ter, for the express purpose of furnishing a make reasonable and just rates of freight and standard by which the disputes between ship-passenger tariffs to be observed by all railroad pers and the companies were to be settled. Arnold v. Ga. R. & B. Co. 50 Ga. 304: Knox v. R. Co., Bonham v. C. C. & A. R. Co. and Ragan v. Aiken, supra. Because the term "provided" is used in a law, it does not necessarily follow that the matter which may succeed it is a proviso in its technical sense. Carroll v. State, 58 Ala. 396; Bouv. Law Dict. title, Proviso; 2 Rapalje & L. Law Dict. 1032; Stanley v. Colt, 72 U. S. 5 Wall. 166 (18:509). Mr. Clifford Anderson, for defendants in error: It is not to be presumed that the right of Barrett v. Stockton & D. R. Co. 40 Eng. C. companies doing business in the State on their The commissioners are required from time The supreme court of the State held, on an application for an injunction in this case, that this delegation of authority by the Legislature to the commissioners, to prescribe what shall be reasonable and just rates for the carriage and transportation of persons and property | the transportation of persons and freight withover railroads within its limits, was a proper in its jurisdiction has been under consideration, exercise of its own power to provide protection the question discussed has not been the original to its citizens against unjust rates for such power of the State over the subject, but whethtransportation and to prevent unjust discrimin- er that power had not been, by stipulations of ations; and that it was expected, not that the the charter, or other legislation, amounting to Legislature would itself make specific regula- a contract, surrendered to the company, or [179] tions as to what should in each case be a prop- been in some manner qualified. It is only upon er charge, but that it would simply provide the the latter point that there have been differences means by which such rates should be ascer- of opinion. tained and enforced. [180] persons and merchandise over its road, a right The question then arises whether there is in The difficulty attending the construction of the clause following this one arises from the doubt attached to the meaning of the term "provided." The general purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute, or from some provisions of it, or to qualify the operation of the statute in some particular. But it is often used in other senses. It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them, to precede their proposed amendments with the term "provided," so as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction "but" or "and" in the same place, and simply serving to separate or distinguish the different paragraphs or sentences. Several illustrations are given by counsel of the use of the term in this sense, showing, in such cases, where an amendment has been made, though the provision following often has no relation to what precedes it. It does not matter, in the present case, whether the term be construed as imposing a condition on the preceding exclusive grant to the Company of the privilege of transporting passengers and merchandise over its own roads, or be considered merely as a conjunction to an independent paragraph, declaring a limitation upon the charges which the Company may [181] |