Am. Rep. 554. The same ruling prevailed under similar statutes in Phillips v. Carpenter, 79 Iowa, 600. In this case the certificate of insurance was payable to the member's "legal heirs." He left a wife and child surviv ing him, and it was held that the fund went to the child alone, since that provision of the law of descent which provided that, "if the intestate leave no issue, the one-half of his estate shall go to his parents, and the other half to his wife," was the only instance when the rights given to the widow under the statutes of Iowa partook of the nature of heirship. The court, in deciding the case, said: "If the term 'legal heirs' was used in its technical seuse, then she is not such because of the issue surviving, if in the commonly accepted sense; then she is not a legal heir. The dis tinction between the word 'widow' and the word 'heir' is marked in common parlance. No one having children speaks of his wife in contemplation of her survivorship as his heir; but it is believed it is universal that she is referred to as widow, and the children as heirs. While, technically, and in the single instance stated, a widow may become the legal heir of her de ceased husband, our conclusion is, under the facts of the case, that whether used in their technical or genuine sense the words 'legal heirs' were not intended, and should not be construed to include the widow.

A Divorced Wife of a member of a benefit insurance association, or of a man insured in an ordinary insurance company, whose insurance is made payable to his heirs, is not entitled to a share in the distribution of the fund after his death, whether he leaves a wife or children or other heirs surviv ing him or not": Tyler v. Odd Fellows' Mutual Relief Assn., 145 Mass. 134; Schonfield v. Turner, 75 Tex. 324.

Insurance no Part of Estate of Assured.-Under a certificate of membership in a benefit society which provides that the devisees, or, in case of no will, the heirs of the member, upon his death are to receive a designated sum, the member has no property in the fund during his life. He has only a power of appointment by will. In case of his death without the exercise of such power, except to name his executor, neither the latter nor the cred. itors of the deceased can acquire any interest in the benefit fund. It must be distributed to the heirs under the intestate law: Northwestern Masonic Aid Assn. v. Jones, 154 Pa. St. 99; 35 Am. St. Rep. 810; Masonic Mutual Assn. v. Jones, 154 Pa. St. 107; Rollins v. McHatton, 16 Col. 203; 25 Am. St. Rep. 260; note to Bankers' etc. Assn. v. Stapp, 19 Am. St. Rep. 789. Money due upon the certificate of a member of a benefit association at the time of his death forms no part of his estate, but belongs to his "legal heirs" named as beneficiaries: Mullen v. Reed, 64 Conn. 240; 42 Am. St. Rep. 174; Mul lins v. Thompson, 51 Tex. 7; Bishop v. Grand Lodge of Mutual Aid, 112 N. Y. 627; Kentucky Masonic Mutual Life Ins. Co. v. Miller, 13 Bush, 489; Gosling v. Caldwell, 1 Lea, 454; 27 Am. Rep. 774. In Wilburn v. Wilburn, 83 Ind. 56, the court said: "Policies of insurance payable to designated beneficiaries are not the property of the decedent within the meaning of the statutes of distribution. The beneficiaries have the exclusive right to the money realized; the executor or administrator is not entitled to it, and it cannot therefore be regarded as property of a decedent subject to distribution un der the statute. In truth, the policy is not the property of the insured in any sense, but is the property of the beneficiary from the day of its issue, for from that time he has the whole beneficial interest."

In this case the insurance was payable to the "legal heirs" of the insured. If necessarily results from the reasoning in these cases that the creditors of the deceased have no claim on insurance on his life made pay. able to his heirs.

CAMPBELL PRINTING PRESS AND MANUFACTURING COMPANY V. ROCKAWAY PUBLISHING COMPANY.

[56 NEW JERSEY LAW, 676.]

CONDITIONAL SALES-RIGHT TO REPLEVIN GOODS.-Under a contract for the sale of goods providing that the purchaser shall give notes for the purchase price, the title to remain in the seller until a mortgage is given to secure such notes or the price is paid, the title to the goods remains in the seller, and, if no rights of innocent third parties intervene, he may, upon the failure of the purchaser to give such mortgage, recover judgment on the notes and subsequently recover the goods by replevin.

R. W. Parker, for the plaintiff in error.

676 VAN SYCKEL, J. The Campbell company sold to the Rockaway company a printing-press. The contract of sale, which is in writing, provides that in thirty days after the receipt of the bill of lading the vendee shall pay twenty-five dollars in cash, and give its notes for the balance of the purchase price; that the purchaser shall insure the press and deposit the policy with the vendor. It was further agreed as follows:

677"It is also agreed that the deferred payments above mentioned shall be secured by first mortgage on the property herein contracted to be sold. It is further agreed that the title to the said property shall remain in the seller until such mortgage be given, or until the purchase price, with interest, has been fully paid; and, in case of any default in any of the terms of this contract, the seller shall have the right to take immediate possession of said property.

"Upon the execution and delivery of the aforesaid mortgage, or the payment of the purchase price in cash, the Campbell Printing Press and Manufacturing Company agree to execute and deliver a good and sufficient bill of sale of the above-described property."

The press was delivered to the Rockaway company, and notes given for the purchase price to the vendor, but the mortgage to secure the notes was not given.

When the notes matured the vendor brought suit upon them and recovered judgment, and afterward brought an action of replevin to reclaim the printing-press.

The trial court held that the institution of the suit by the vendor for the purchase price was an election of his remedy, and necessarily a waiver of his right to retake the property.

Error is assigned upon this ruling of the trial judge, which was based upon the case of Heller v. Elliott, 44 N. J. L. 467, and 45 N. J. L. 564.

In that case the property was sold for cash, on condition that the vendee should pay for it on delivery. After the delivery of the goods by the vendor to the vendee, and after the vendee sold the same goods to one of the defendants, the vendor caused an attachment to be issued against the property of the vendee for the price of the goods, and caused them to be levied on under that writ. After this proceeding the vendor claimed that he was still the owner of the goods, and brought an action of trover for them.

The supreme court, in a judgment subsequently affirmed by this court, held that the issuing and service of the attachment 678 was an affirmance of the sale and a waiver of the condition of payment before vesting of the title.

This case, we think, was correctly decided, because the levying on the property by the vendor under the attachment as the property of his vendee was necessarily a recognition of the fact that the property did not remain in himself, but had passed to the purchaser from him.

The case of Leatherbury v. Connor, 54 N. J. L. 172, 33 Am. St. Rep. 672, also differs from the principal case. There the property was sold March 7, 1889, to be paid for by a three months' note, to be secured by a chattel mortgage, which the purchaser promised to execute on the following Monday. The property was delivered, but the mortgage was not executed. Various excuses for its nonexecution were given, until the vendee became insolvent more than a month afterward. A receiver was appointed for the insolvent vendee, who, in May, 1889, sold the property to a third person.

The vendor thereafter, by suit, sought to reclaim the property from the receiver's vendee.

This court denied the right of the original vendor to set up title to the property, on the ground that he was bound to pursue his right to the possession of the goods with reasonable diligence before a purchaser in good faith acquired them, and that by his conduct he had acquiesced in the possession of the chattels by the insolvent vendee as his property to such an extent as to protect the buyer at the receiver's sale.

In the case in hand no question is presented as to the rights of innocent third parties. The rights of these litigants must

be adjudged according to the terms of the contract into which they have entered.

Such contracts as that in Leatherbury v. Connor, 54 N. J. L. 172, 33 Am. St. Rep. 672, do not contemplate an absolute sale. The cases cited in the report of that decision show that it is well settled that delivery of the goods to the vendee does not make the sale absolute: Marvin Safe Co. v. Norton, 48 N. J. L. 410; 57 Am. Rep. 566.

The contract in this case expressly provides that the title shall remain in the seller until the mortgage is given or the 679 purchase price paid, and that, when the mortgage is given or the purchase price is paid, the seller shall execute and deliver a bill of sale to the buyer.

If the vendee desired to acquire title absolute he was bound to execute his part of the engagement; until then the vendor retained title. No right of third parties intervened to affect the transaction.

The taking of promissory notes by a materialman does not affect his right to file a mechanic's lien: Slingerland v. Lindsley, 1 N. J. Law Journal, 115; France v. Netherwood Hotel Co., 2 N. J. Law Journal, 90.

The plaintiff in error had a right to the vendee's notes by the express terms of the contract, and the right to enforce the payment of the notes by any legal proceeding, without surrendering the further right to a mortgage which the agree ment gave to the mortgagee or to payment before the title passed. Such was the undertaking of the parties, and the contract must be enforced as it was made.

The judgment below must be reversed.

REPLEVIN WHEN LIES.-Replevin lies in Pennsylvania wherever one claims goods in possession of another without regard to the manner in which the possession was obtained: Herdic v. Young, 55 Pa. St. 176; 93 Am. Dec. 739, and note. Replevin lies for goods wrongfully detained by a fraudulent purchaser: Root v. French, 13 Wend. 570; 28 Am. Dec. 482, and note.

MERCHANTS' INSURANCE COMPANY V. GIBBS.

[56 NEW JERSEY LAW, 679.]

INSURANCE-WAIVER OF PROOFS OF Loss.-A demand by an insurer for additional proofs of loss is a waiver of the objection that proofs of loss were not furnished within the time limited by the policy. INSURANCE-PROOFS OF LOSS.-NOTARY'S CERTIFICATE of loss in good faith required by an insurance policy to be furnished by the insured is not part of, and need not be furnished with, or annexed to, the proof of loss. A demand for such certificate by the insurer is not a demand for amended proofs of loss, and does not affect conditions in the policy as to the time within which proof of loss must be furnished and an action commenced against the insurer.

O. Jeffery, for the plaintiff in error.

H. S. Harris, for the defendant in error.

680 VAN SYCKEL. J. This suit was brought by Gibbs against the Merchants' Insurance Company to recover the loss occasioned by fire to his insured goods.

The judgment recovered by Gibbs in the court below is assailed under two exceptions: 1. For the refusal of the trial court to nonsuit. This motion was based upon two grounds, the first of which was that the proofs of loss were not furnished within the time required by the conditions of the insurance policy. The policy requires that the proofs of loss be submitted to the company within sixty days after the fire. The fire occurred April 3, 1891, and the proofs of loss were served upon the company June 22, 1891. Suit was commenced April 2, 1892.

It is agreed, therefore, that the proofs were not furnished within the prescribed time, but it appeared in evidence that, after the defendant company had received these proofs, a demand was made upon the insured that he should furnish to the company the certificate of the nearest magistrate or notary that he believed that insured had honestly sustained loss by the fire to a specified amount.

The conditions of the policy entitled the company to make such a demand, and with this demand the insured complied. Under the adjudicated cases in this state this clearly constituted a waiver of the objection that the proofs were not furnished in time: Jones v. Mechanics' Fire Ins. Co., 681 36 N. J. L. 29; 13 Am. Rep. 405; State Ins. Co. v. Maackens, 38 N. J. L. 564; Hibernia etc. Ins. Co. v. Meyer, 39 N. J. L. 482; Martin v. State Ins. Co., 44 N. J. L. 485: 43 Am. Rep. 397.