Knapp v. Smith. the farm, and that the note given for the cows had been paid from the proceeds of the sale of some of them. She had no separate estate or property, prior to the purchase of the farm. The referee stated, as a conclusion of fact, that the plaintiff was the owner and in possession of the colt and yearlings, when they were seized, on the execution, by one of the defendants,· who was a constable, by the direction of the other defendant. As matter of law, he found that the plaintiff was entitled to recover. Some exceptions to rulings in taking the testimony, are noticed in the opinion. The judgment on the report having been affirmed at a general term, the defendants appealed, and the case was submitted on printed briefs. L. I. Burditt, for the appellants. L. L. Bundy, for the respondent. DENIO, Ch. J. At common law, a married woman had a capacity to take real or personal estate, by grant, gift or other conveyance, from any person except her husband. But as to real property, the husband, where no trust was created, had an estate during the coverture, and during his life, if there was issue of the marriage; and the wife's personal estate, in the absence of a trust, vested in him absolutely, when reduced to his possession. The object of the statutes of 1848 and 1849 was to divest the title of the husband jure mariti during coverture, and to enable the wife to take the absolute title, as though she were unmarried. (Laws 1849, p. 528, ch. 375, § 1.) There is some difficulty in a married woman purchasing property, whether real or personal, on credit, arising out of the principle that she cannot make a contract for payment which will be binding upon her personally, according to the general rules of law; but if the vendor will run the risk of being able to obtain payment of the consideration of the sale, the transfer will be valid, and no estate will pass to the husband, whether the wife had antecedently any separate estate or not. (Darby v. Calligan, 16 N. Y., 21.) It follows, that if the husband of the Knapp v. Smith. plaintiff in this case, had been free from debt, there could be no legal objection to her title to the farm, or to the cows which were purchased by and conveyed to her, and she would have been entitled to hold and enjoy them, to her sole and separate use, in the same manner as though she were not under the disabilities of coverture. It would follow, that she could cultivate the land and manage the personal property by means of any agency which any other owner of property might employ, and that the produce thereof and the increase of the stock would be hers. Where the husband is indebted and insolvent, as was the case here, there is generally more or less reason to suspect that such arrangements are adopted as a cover to disguise the substantial ownership of the husband and to defraud the creditors. Whether, in a given case, the transaction is sincere and bona fide, or a colorable device to cheat the creditors of the husband, is a question of fact, to be determined by the jury or other forum entrusted with decision of such questions. In this case, the referee has found the facts necessary to show title in the plaintiff to the property in question, and he has omitted to find that her title was infected with fraud. On the contrary, by stating that the acts of the husband were done in the character of the agent of the plaintiff, and that she was the owner of the cattle which were seized, on the execution, he has virtually negatived the allegation of fraud. It is not our duty or right to review the testimony, with a view to pass upon the correctness of his conclusion, and we, therefore, express no opinion upon the evidence in this case. A point is made that the defendant Smith, who directed Moore, the constable, to make the levy, is not responsible, in this form of action, because, as it is argued, he never had the property in his possession. That precise question was decided against the defendant's position, in Allen v. Crary (10 Wend., 349). The defendant in that case had done nothing but to direct the sheriff to levy upon the property replevied, under an execution against a person who was not the owner, and a levy was accordingly made. The court held, that this was Knapp v. Smith. a sufficient taking to enable the owner to bring replevin. I notice, that in an opinion at special term, before the late Judge WILLARD, the case of Allen v. Crary is made the subject of some criticism. But, in the case before Judge WILLARD, the defendant, who once had the possession of the property claimed, had actually transferred it and parted with the possession before the bringing of the action. (Brockway v. Burnap, 12 Barb., 347.) It did not become the duty of the court, therefore, to pass upon the effect of a levy upon execution where the process in replevin, as in this case and in Allen v. Crary, was served before anything more than making the levy had been done. I do not think the Revised Statutes, or the Code of Procedure, have made any change in the law as to the nature of the possession in the defendant which is required to warrant an action for the delivery of personal property. We therefore follow the case of Allen v. Crary, and hold that the action was properly brought against both defendants. Two of the exceptions as to the admission of evidence are relied on. Trask, a witness examined for the plaintiff, was asked whether she had been in the possession of the farm since the deed to her, and the defendant objected that the inquiry called for an opinion on a question of law. The objection was overruled, and the witness answered that they, the plaintiff and her husband, had been on the place ever since. I do not perceive any well grounded objection to the question, but the answer was the statement of a simple matter of fact, and one in respect to which, upon the whole case, there was not the slighest question. Again, the plaintiff, while under examination on her own behalf, was asked by her counsel, "For whom did your husband do what business he did after you took the deed," &c. This was also objected to on the ground that it called for a legal conclusion. Her answer was: "I expected he was doing it for me." Legal considerations may, no doubt, be involved in a question of agency. But prima facie the inquiry whether a person engaged in a particular employment was doing business on his own behalf or as the agent of another, involves only the question of fact whether SMITH.-VOL. XIII. 36 27 282 138 381 Rawls v. American Mutual Life Insurance Company. he had been employed by that other person, and it is, therefore, a competent question to be put to such person. The exceptions, I think, have no merit, and there being nothing else in the case, the judgment must be affirmed. WRIGHT, SELDEN, EMOTT, BALCOM and MARVIN, Js., concurred; ROSEKRANS, J., was for reversal, on the ground that & married woman, prior to the act of 1860, could not buy property for her separate uses, but under the acts of 1848 and 1849, could only take by gift or bequest. Judgment affirmed. RAWLS V. THE AMERICAN MUTUAL LIFE INSURANCE COM PANY. Where a creditor procures an insurance upon the life of his debtor, his insurable interest continues, although the statute of limitations would have barred his action, if pleaded, before the debtor's death. It seems that the contract of life insurance is not one for indemnity merely, and that if the insured had an interest in the duration of the life when he took the policy, he may recover, though that interest has ceased: Per RIGHT, J. Where the insurer pleads the falsity of representations as to the health of the party whose life is insured, evidence is admissible from the plaintiff as to his health prior to the application for the policy. The admission of such party, made after the plaintiff obtained the policy, that his own habits were intemperate, is inadmissible. Proof is inadmissible that a person addicted to intoxicating drink is not regarded as an insurable subject by persons engaged in the business of life insurance. When a person, who had signed written statements in respect to the health of the party, stated as a witness that he had no recollection of having done so, it is competent for the plaintiff to prove that such statement was read to him, for the purpose of repelling any presumption of fraud in obtaining his statement. So it is competent to prove by a physician, who made a written statement, the truth of which was in issue, that he made the statement in good faith. Rawls v. American Mutual Life Insurance Company. It is not competent to call for the opinion of physicians, who had made statements in respect to the party insured, whether, if they had known that he habitually indulged in intoxicating drink, they would have regarded that practice as impairing his constitution, or of the examining physician, in behalf of the insurers, whether, with like knowledge, he would have regarded the life as healthy and the risk good. The plaintiff is entitled to give in evidence all the papers on which the insurers acted when they granted the policy. A statement procured by the,insurer in respect to the life insured, from a third party named by the person whose life is insured, but the contents of such statement not known to him or to the plaintiff, and not furnished as a part of the application, is not a warranty. When all the questions put to the parties desiring the insurance are fully and truly answered, it is not a fraudulent concealment if they omit to state facts, though material to the risk, not called for by any specific or general question. APPEAL from the Supreme Court. Action on a policy of insurance issued by the defendant, dated 28th July, 1853, for $5,000, on the life of John L. Fish, of Rochester, N. Y., payable to the plaintiff. The answer denied, 1st. The allegations of the complaint, as to the plaintiff's interest in the life of Fish; 2d. Alleged that Fish did not conform and comply with all the conditions of the policy, and that the plaintiff had not made proof of the death in the manner provided in the conditions annexed to the policy; 3d. Alleged the contents of certain statements and representations of Fish, F. W. Shipman, James C. Marsh and W. F. Holmes, respecting the life, health and medical history of Fish, presented to the defendant by the plaintiffs, before issuing the policy, and in consideration of which the policy was issued; and then averred that such written statements and representations were false, and that Fish and the plaintiff had notice thereof, and that the policy, by reason thereof, was void; 4th. Alleged that before and at the time of the issuing of the policy, Fish was a man of licentious, intemperate and disorderly habits and passions, and frequently or habitually indulged in habits and practices which had impaired, or would impair, his health and constitution and shorten his life; all which the plaintiff, Fish, Shipman and Marsh well knew, or had good reason to believe at * |