account of insanity, who claimed dower for her. This was quite consistent with the position that she had made a valid waiver. It was contended that the widow was insane when she made the waiver. But whether she was or not the court did not decide. The court says, in effect, that the contracts of insane persons are not void, but only voidable, and may be ratified during a lucid interval; that nothing had been done by the widow evincing a disposition to avoid the waiver, nor by the guardian after his appointment. It is apparent the case fails to sustain the position to which it is cited, that the guardian may elect. In Heavenridge v. Nelson, 56 Ind. 90, the court decided that the guardian of a widow of unsound mind has no power to elect for her, as between the provisions of a will and her legal rights. The case is in harmony with the great current of authority. Pinkerton v. Sargent, 102 Mass. 568, affirms the same doctrine, that the privilege of a waiver is a purely personal right, and if the widow is insane, neither she nor her guardian can exercise it. It seems unnecessary to multiply cases upon this point. Nor do we find anything in the statute relating to the powers and duties of a guardian of an insane person which confers the right to elect.

We cannot go over, in detail, the various provisions referred to by counsel, but content ourselves with saying that in none of them is the right given, either expressly or by any fair implication. The right of the guardian to sue for and collect debts due his ward, and to appear for and represent such ward in all actions and proceed. ings, except where another person is appointed for the purpose, does not relate to or apply to an election under a will. It properly refers to the proceedings in ordinary actions in court. Still, notwithstanding these provisions of the statute, the appointment of a guardian ad litem is generally deemed necessary, and made; but it is clear that the statute confers no power on the guardian to make an election for an insane widow, and it would be a perversion of it terms to so hold. It therefore follows, from these views, that the elec tion made by the guardian of Mrs. Washburn was without authority of law, and can have no validity whatever. But if neither he widow nor guardian could make a valid election under the statute, the question arises whether a court of equity has the power to make it for her. At common law, where the person entitled to elect was insane and incapable of exercising the right, a court of equity would elect for him. Says Mr. Justice Story: "It is in cases of wills that the doctrine respecting election and satisfaction 'must frequently, though not exclusively, arise in practice, and is acted upon and enforced by courts of equity." The learned author defines "election" as used by him, "to be an obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of

election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has the right to control one or both, that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefits of both." 2 Story, Eq. Jur. sec. 1075.

Independent of the statute, probably, no one would question the power of a court of equity, where the application was in time, to elect for an insane widow, or other person, incapable from want of capacity of personally making it. Such a power has often been exercised by courts of chancery in England and in this country, and the jurisdiction is well established. Does, then, the statute which requires the widow to elect, limit or abrogate this jurisdiction, so that a court can no longer exert it on behalf of an insane widow? We perceive no sufficient ground for saying that it does. The object of the statute is to regulate dower, declare when and under what circumstances it shall exist, define its extent, and prescribe the manner in which it may be barred. True, it provides that when the widow is put to an election she shall be deemed to have elected to take the jointure, devise, or other provision, unless within a year from the death of her husband, she file a notice that she elects to take the share of his estate which the law gives her. But we do not think it was the design of the statute to abrogate the jurisdiction of a court of equity in a proper case. Such an inference should not be made without a clear expression of such legislative intent. Besides, within the year, the executors invoked the jurisdiction of the court to construe the will, asking directions as to how they shall execute its trusts, and that the question of election be determined. In one question they distinctly ask whether the widow, being insane, is put to an election; if so, how and by whom the election is to be made. This calls upon the court to make the election if it has the power to do so.

The question as to the right of a court of equity to make an election for an insane widow has been considered in other States where a similar statute exists. In Wright v. West, 2 Lea, (Tenn.) 78, it was decided that a widow who had not dissented from the provisions of her husband's will within time prescribed by law, because of her insanity, might in equity assert her rights in the estate as though she had dissented. Judge Freeman dissented from the decision, holding that she was barred by the statute. But the discussion in both opinions is learned and able. In Smither v. Smither, 9 Bush, (Ky.) 230, the court ruled that the widow might make an election in a mode different from that pointed out by the statute. The proceeding was in equity, and the election of the widow was postponed until the conditon of the estate was ascertained. In Collins v. Carman's Ex'r, supra, no renunciation by the widow or by any one in her behalf was made or attempted to be made during her life, but the provisions of the will for her benefit were fully complied with by

the executor. The widow was insane at the death of her husband, and continued so until she died. Shortly after her death letters of administration on her estate were granted to the complainant, who promptly filed a renunciation of the devises and bequests made for the benefit of his intestate. He then filed a bill to obtain a decree declaring bis renunciation effectual and sufficient; or if, for any cause, it should be deemed informal and imperfect, he prayed that he might be considered as revoking by his bill the renunciation. The court held that the act requiring the widow to renounce the devises and bequests in the will within six months from the death of her husband, included an insane person, and that her administrator, after a lapse of four years, could not renounce for her, she having enjoyed during all that time the benefits provided for her by the will. Therefore the court decided he could not make the renunciation or claim anything beyond what was given his intestate in the will. In the opinion the court uses this language: “In saying this, we wish to be understood as not intimating any opinion upon the question whether a court of equity can or cannot make an election or renunciation for an insane widow during her life, and in proper time. The case does not call for a decision on that point." Page 527. Therefore, in view of these authorities and of the nature of the case, we are disposed to affirm the right of the court to elect for the widow.

But upon what principles must the court proceed, or what considerations should be regarded in making that election? The counsel for the respondents insist that the principle upon which an election is made by a court for the person under disability, is to take that property which is the most valuable. That may afford a just and proper rule upon which to proceed in most cases.

But

we think it would not be wise to act upon that principle in the case before us for these reasons: Gov. Washburn, at the time of his death, owned large properties in the States of Wisconsin, Minnesota, ahd Missouri. Had he died intestate it is said his widow would have taken $600,000 or $700,000 as her share of his estate. It was assumed on the argument, and such doubtless is the fact, that the executors have set aside $5,000 a year to be expended for her support. If this amount should be doubled or trebled, it is plain that the sums expended for her benefit would only be a small fraction of the share she would take by law. Mrs. Washburn was sixty two years of age when this bill was filed. She has been insane, without a lucid interval, for more than twenty-five years. There is no ground for a rational hope or expectation that she will ever be any better. Her mind has rested too long in the deep eclipse to justify or warrant such hope. Medical science and skill long since exhausted their resources in efforts to cure her. Presumably she is incurably and hopelessly insane; and if she is ever restored to her reason, ever again clothed and in her right mind, to all

human judgment, that change must be brought about by an agency higher than that of man. She can have no conception of the value or use of money. If the wealth of Ormus and of Ind" were laid at her feet she would not distinguish it from the dust. She cannot use money; she cannot manage it; its possession would be of no earthly benefit or advantage to her. Provision is made in the will for all her wants and necessities; for medical care and attendance; for all other care; in short, for everything that will promote her comfort and physical health. Does not this meet the demands of every equitable requirement, so far as Mrs. Washburn is concerned? Further, cannot the court pay some regard to the benevolent intentions of the testator towards his kindred by blood, and those having claims on his bounty; to his munificent bequests for admirable and noble public charities, such as establishing a public library, an orphan asylum for young and destitute orphans; to the fact that he made a will in and by which he disposed of his entire estate in a manner which seemed to him just and right. Is it permissible for the court to consider any of these matters, or must its discretion and judgment be limited to the sole inquiry, which property is the more valuable? It is evident if the court should elect what the law gives the widow in case of intestacy that the intentions of the testator will in a measure be defeated? Such an election would greatly interfere with the scheme of the will. Defeating a will, in any substantial provision, is much like breaking it. It is defeating it pro tanto. The right to dispose of one's estate in accordance with his own wishes is a sacred right, which a court of equity will not disregard or destroy. The late chief justice, in Dodge v. Williams, 46 Wis. 70, says: "Every one should have the same power to dispose by will, after his death, in accordance with his own wishes, of whatever he may leave behind him in his sole right, as he had in life to dispose of it by contract or by gift, and is as much the duty of the courts to uphold and enforce his will after death, as to uphold and enforce his contracts made during life." Pages 90, 91.

It seems to us these considerations are entitled to some weight in making the election in this case. If the court can regard them, if it has any discretion in the matter, they should exert their due influence on our judgment. But if the court must elect for the widow, the more valuable interest, without reference to any other consideration then it really will exercise no discretion. But we think it is the clear duty of the court to exercise a sound discretion in the matter-to consider everything having a legitimate bearing on the electiou to be made. Consequently, acting upon that principle, the court, in view of Mrs. Washburn's insane condition, in view of the liberal and ample provision made for her benefit in the will, and in consideration of all the facts, does elect for her that provision as being on the whole the best and most advantageous for her interest and welfare.

But it is said the heirs of Mrs. Washburn are entitled to recognition upon the question of election. An examination of the will shows that the testator has made a most bountiful provision for his two daughters. It is said that they will receive under the will about a half million dollars apiece. They have, therefore, no grouhd to complain; indeed, they do not complain of anything in the will. It is but fair to assume from the record that it is not their wish that any disposition which their kind and affectionate father saw fit to make of his property, should fail, or not have full effect given to it.

These remarks sufficiently indicate our views on most of the points upon which directions were asked by the executors. Of course, the personal property will be governed by the law of the domicile, so that the election which has been made will dispose of all questions relating to the persopal estate and the real estate situated in this State. How this election may or should affect the rights of the widow in real property in other States, is a point upon which we decline to express an opinion, although the executors ask us to decide the qucstion here. But it seems to us that the decisions of that question may properly be left to the tribunals of the State where such real estate is situated. There can be no doubt of the correctness of the proposition that the court of the domicile, the one which has jurisdiction of the person and estate of the insane widow, is the one to make an election for her. The court of this State placed the widow under guardianship and appointed a guardian of her person and estate. This court has made an election for her, but how far such election will affect her rights in real estate situated in another State, may be a grave question. This observation, however, may be made: It is generally agreed by writers on the subject, and the rule has frequently been acted on by the courts, that the "interpretation " and construction of the will belongs to the tribunal of the domicile of the testator. Mr. Justice Story, in his work on the Conflict of Law, so states the doctrine (section 491) as law; Judge Redfield (1❘ Redf. Wills, p. 396), and other authorities cited by these learned writers, in notes to their texts. It is also true that the administration in the State of the domicile is deemed the principal or primary administration-the one that can make the final decree for the settlement and distribution of the estate. If administration is granted in another State, it is treated as in its nature ancilliary merely, and is generally held subordinate to the prin cipal administration. See Story, Confl. Law, sec. 518; Price v. Mace, 47 Wis. 23; (S. C. 1 N. W. Rep. 336); Parsons v. Lyman, 20 N. Y. 103. So, where assets remain in the hands of the ancillary administrator after the satisfaction of all debts in his jurisdiction, they are usually ordered to be sent to the principal administrator for distribution. But real estate is governed by the lex loci, and questions in respect to it properly belong to the jurisdiction where it is situated. There may be

exceptions to this rule, as the counsel for the executors claim. But, suffice it to say, we shall not attempt to define the rights of Mrs. Washburn in real estate in other States.

It

It appears that there is a statute in Minnesota which provides that the surviving wife shall be entitled to, and shall hold in fee simple, an equal undivided one-third of all lands of which her deceased husband was at any time during coverture seized or possessed, free from any testamentary or other disposition thereof to which she shall not have assented in writing, but subject in its just proportion to the payment of debts of deceased. The respondents' counsel claim that under this statute the widow took, eo instanti on the testator's death, an undivided one-third in fee-simple, and that this interest in such real estate she now holds, both by descent and by the decree of the Hennepin County Probate Court. does, indeed, appear in the case that the Probate Court of that county made such a decree, from which an appeal was taken, and which is now pending in the Appellate Court. But the construction of this statute, as well as the question as to what effect must be given the election for the widow made by the Probate Court, we shall leave for the decision of the Supreme Court of Minnesota. It may safely be assumed that that able and enlightened tribunal will correctly expound the statute in question, and define the rights of Mrs. Washburn under it, and under the decree of the probate court. No doubt it will give to the decision of this court in placing a construction upon this will of Gov. Washburn, and in making an election for the widow, all the consideration and credit to which it may be entitled, whether upon principles of comity or under the law of Congress. There we leave the matter.

In closing this opinion, we must express our admiration at the eminent ability and great research displayed by counsel on both sides in the argument of the case.

It follows, from the views expressed, that the judgment of the circuit court, in construing the provision made in the will for the support of the widow, as well as in the directions to the executors in regard to the execution of their trusts, is erroneous. The judgment is therefore reversed, and the cause remanded, with directions to enter a judgment in accordance with this opinion. It is also ordered that the taxable costs and disbursements on both sides be paid out of the estate. It is so ordered.

LYONS, J., dissenting.—I fully concur in the decision of the court on all the questions determined by it leading to and including the proposition that the court must make the election whether Mrs. Washburn shall take under the will of her late husband, or whether the provision made for her therein be waived in her behalf, and she be left to take the interest in his estate given by the statute in such cases. I also agree that all the probabilities are that Mrs. Washburn will never

recover her reason; and further, that the provisions of the will are amply sufficient to supply all of her wants, and to secure for her the best care and attention during the remainder of her life. Yet I am unable to concur with my brethren in the election made by them that Mrs. Washburn take under the will instead of the statute. I think the court should make the election for her which she, were she sane and capable of exercising reasonable judgment, would make for herself. I can not doubt, in that event, she would elect to waive the provisions made for her in the will, and take the interest in her late husband's estate which the statute in such case would give her.

I must therefore dissent from the judgment of the court which elects for her that she take under the will.

United States Supreme Court, Nov. 19, 1883. 1. A fire insurance policy contained this clause: "This insurance may be terminated at any time at the option of the company, on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term of the policy. It is a part of this contract that any person other than the assured, who may have procured the insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company under any circumstances whatever, or in any transactions relating to this insurance:" Held, that this clause imports nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in matters immediately connected with the procurement of the policy; that where his employment did not extend beyond the procurement of the insurance, his agency ceased upon the execution of the policy, and subsequent notice to him of its termination by the company was not notice to the insured.

2. Parol evidence of usage or custom among insurance men to give such notice to the person procuring the insurance was inadmissible to vary the terms of the contract.

3. The doctrine reaffirmed, that when jurisdiction of the circuit court depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, must be distinctly and positively averred in the pleadings, or appear affirmatively and with equal distinctness in other parts of the record. An averment that parties reside, or that a firm does business, in a particular State, or that a firm is "of" that State, is not sufficient to show citi. zenship in such State.

4. Where the record does not show a case within the jurisdiction of a circuit court, this court will take notice of that fact, although no question as to jurisdic. tion had been raised by the parties.

HARLAN, J., delivered the opinion of the court: This is an action upon a policy of fire insurance issued September 26, 1877, by the American Cen

tral Insurance Company of St. Louis to the firm of Wm. R. Grace & Co.

The circumstances under which it was issued are these: A clerk of Wm. R. Grace & Co., charged with the duty of effecting insurance against loss by fire upon their property, employed one W. R. Moyes, a broker in the city of New York, to obtain insurance, in a specified amount, for his principals. Moyes instructed one Anthony, an insurance broker and agent in Brooklyn, who had on previous occasions obtained policies for Grace & Co., to procure the required amount of insurance. Anthony obtained the policy in suit from the general agents in New York City of the defendant company, mailed or delivered it to Moyes, and by the latter it was delivered to Grace & Co., not later than the day succeeding its date. On the morning of October 6, one Carrol, for the insurance company, verbally notified Anthony that the company refused to carry the risk, and required the policy to be returned. There is some conflict in the testimony as to what occurred between Carrol and Anthony on this occasion. But, in the view which the court takes of this case, it may be conceded that Anthony gave Carrol to understand that the policy would be returned to the company or its agents. The property insured was destroyed by fire on the night of October 6, 1877, or early on the morning of the 7th. Prior to the fire, neither the insured, nor their clerk by whose instructions the policy was obtained, had any knowledge or notice of the conversation between Carrol and Anthony, or of the fact that the company had elected not to carry the risk. At the trial it was admitted that the contract between the parties was fully executed upon the delivery of the policy to the insured.

The eighth clause of the policy is in these words: "The insurance may be terminated at any time at the request of the assured, in which case the company shall retain only the customary short rates for the time the policy has been in force. The insurance may also be terminated at any time at the option of the company, on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term of the policy. It is a part of this contract, that any person other than the assured, who may have procured the insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company under any circumstances whatever, or in any transaction relating to this insurance."

The court refused, although so requested by plaintiffs, to rule that Anthony was not, within the meaning of the policy, their agent for the purpose of receiving notice of its termination; but charged the jury, in substance, that Anthony was, for such purpose, to be deemed the agent of the insured. Exception was taken in proper form by plaintiffs, as well to the refusal to give their instruction, as to that given by the court to the jury. A verdict was returned for the company, and judgment thereon was entered.

The charge, in connection with the opinion delivered by the learned judge who presided at the trial, indicates that, in his judgment, the words in the eighth clause-"It is a part of this contract that any person, other than the assured, who may have procured the insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy,"-were intended to be qualified by the words, "in any transaction relating to this insurance." Upon this ground it was ruled that notice of the termination of the policy was properly given to Anthony, who personally procured the insurance. We do not concur in this interpretation of the contract. The words in their natural and ordinary signification, import nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in all matters immediately connected with the procurement of the policy. Representations by that person in procuring the policy, were to be regarded as made by him in the capacity of agent of the insured. His knowledge or information, pending negotiations for insurance, touching the subject-matter of the contract, was to be deemed the knowledge or information of the insured. When the contract was consummated by the delivery of the policy, he ceased to be the agent of the insured, if his employment was solely to procure the insurance. What the company meant by the clause in question, so far as it relates to the agency, for the one party or the other, of the person procuring the insurance, was, to exclude the possibility of such person being regarded as its agent, "under any circumstances whatever, or in any transaction relating to this insurance." This, we think, is not only the proper interpretation of the contract, but the only one at all consistent with the intention of the parties as gathered from the words used. There is, in our opinion, no room for a different interpretation. If the construction were doubtful, then the case would be one for the application of the familiar rule that the words of an instrument are to be taken most strongly against the party employing them, and, therefore, in cases like this, most favorably to the insured. The words are those of the company, not of the assured. If their meaning be obscure it is the fault of the company. If its purpose was to make notice, to the person procuring the insurance, of the termination of the policy, equivalent to notice to the insured, a form of expression should have been adopted which would clearly convey that idea, and thus prevent either party from being caught or misled.

As the uncontradicted evidence was that Anthony's agency or employment extended only to the procurement of the insurance, the jury should have been instructed that his agency ceased when the policy was executed, and that notice to him, subsequently, of its termination was ineffectual to work a rescission of the contract.

At the trial below, evidence was offered by the company, and was permitted, over the objectior of plaintiffs, to go to the jury, to the effect th

when this contract was made, there existed in the cities of New York and Brooklyn an established, well-known general custom in fire insurance business, which authorized an insurance company, entitled upon notice to terminate its policy, to give such notice to the broker by or through whom the insurance was procured. This evidence was inadmissible because it contradicted the manifest intention of the parties as indicated by the policy. The objection to its introduction should have been sustained. The contract, as we have seen, did not authorize the company to cancel it upon notice merely to the party procuring the insurance his agency, according to the evidence, not extending beyond the consummation of the contract. The contract, by necessary implication, required notice to be given to the insured, or to some one who was his agent to receive such notice. An express written contract, embodying in clear and positive terms the intention of the parties, can not be varied by evidence of usage or custom. In Barnard v. Kellogg, 10 Wall. 383, this court quotes with approval the lauguage of Lord Lyndhurst in Blackett v. Royal Exchange Assurance Co., 2 Cromp. & Jervis, 249, that "usage may be admissible to explain what is doubtful; it is never admissible to contradict what is plain." This rule is based upon the theory that the parties, if aware of any usage or custom relating to the subject-matter of their negotions, have so expressed their intention as to take the contract out of the operation of any rules established by mere usage or custom. Whatever apparent conflict exists in the adjudged cases as to the office of custom or usage in the interpretation of contracts, the established doctrine of this court is as we have stated. Partridge v. Ins. Co., 15 Ib. 573; Robinson v. United States, 13 Ib. 365; The Delaware, 14 Ib. 603; Nat. Bank v. Burkhardt, 100 Ib. 692.

The record in this case presents a question of jurisdiction which, although not raised by either party in the court below or in this court, we do not feel at liberty to pass without notice. Sullivan v. Steamboat Co., 6 Wh. 450. As the jurisdiction of the circuit court is limited, in the sense that it has no other jurisdiction than that conferred by the Constitution and laws of the United States, the presumption is that a cause is without its jurisdiction, unless the contrary affirmatively appears. Turner v. Bank of North America, 4 Dall. 8; Ex parte Smith, 94 U. S. 456; Robertson v. Cease, 97 Ib. 649. In the last case it is said that, "where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other parts of the record." Railway Co. v. Ramsay, 22 Wall. 322; Bridges v. Sperry, 95 U. S. 401. In Brown v. Keene, 8 Pet. 115, it is declared not to be sufficient that jurisdiciion may be inferred argumentatively averments in the pleadings; that the aver