CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ILLINOIS. HUGH COLLINS, Exr., Plaintiff in Error, vs. The Metro- Opinion filed December 17, 1907-Rehearing denied Feb. 7, 1908. I. PUBLIC POLICY-declaration of public policy in constitution is conclusive. The public policy of a State is to be sought for in its constitution, legislative enactments and judicial decisions; but if the constitution declares the public policy of the State upon a particular subject, such declaration is conclusive and must be accepted by the legislative and judicial departments. 2. SAME public policy of Illinois is against forfeiture of estate for conviction of crime. The public policy of Illinois, as evidenced by the constitution and the statutes relating to the descent and devise of property, is against the forfeiture of estate or property rights as the result of a conviction for crime. 3. INSURANCE-legal execution of insured for a crime does not bar suit on policy. The legal execution of the insured for a crime committed by him is no defense, in Illinois, to a suit upon his policy by his personal representatives, in the absence of any provision of the policy exempting the company from liability in that event. 4. Res judicata—plea of res judicata must show a final judgment. A plea of res judicata is fatally defective which fails to show a final judgment by a court of competent jurisdiction. WRIT OF ERROR to the Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. L. C. RUTH, Judge, presiding. This is an action on a life insurance policy issued by the Metropolitan Life Insurance Company on the life of Robert Kilpatrick. The provisions of the policy are set out in the declaration, one of which is, that the policy should be incontestable after two years except for the non-payment of premiums or for fraud. Two defenses are set up in the pleas of the insurance company: First, that Kilpatrick was indicted, tried, convicted and executed for murder; second, that in 1903 the plaintiff commenced a suit in the court of common pleas of Philadelphia against the insurance company on the same policy declared on in this suit; that a rule was entered upon the defendant by that court to file its affidavit of defense; that the defendant filed its affidavit, setting up the indictment, trial, conviction and execution of Kilpatrick on the charge of murder, and that it was adjudged and decided by said court that on the ground of public policy, the insured having been executed for a crime, the plaintiff could not recover; that the plaintiff took an appeal to the superior court of Pennsylvania, and upon such appeal the superior court decided that the facts alleged in the affidavit constituted a good defense to said suit and dismissed the plaintiff's appeal at the cost of the plaintiff, but without prejudice. The plea setting up the latter defense contained averments of facts showing jurisdiction of the court over the parties and subject matter. The plaintiff below demurred to the pleas. The demurrer was overruled, and the plaintiff electing to abide his demurrer, the court gave judgment against him for costs. Upon an appeal to the Appellate Court for the First District the judgment of the circuit court of Cook county was affirmed. The case comes to this court on a certificate of importance, the amount involved being less than $1000. PATTISON & SHAW, (WILLIAM H. HOLLY, of counsel,) for plaintiff in error: The liability of the insurer is not avoided, on the ground of public policy, by the fact that the insured takes his own life, is executed on conviction for crime, or killed while in the commission of a felony. Greenhood on Public Policy, pp. 1, 2; Lord v. Doll, 12 Mass. 115; Harper v. Insurance Co. 19 Mo. 507; McDonald v. Triple Alliance, 57 Mo. App. 87. The plea of former adjudication is not sufficient, as the judgment of the court of Pennsylvania therein set out was not a final judgment, and therefore not a bar to this action. I Herman on Estoppel, 27, 65; 24 Am. & Eng. Ency. of Law, (2d ed.) 793; 13 id. 24; Agnew v. Bank, 96 N. W. Rep. 189; Hurst v. Everett, 21 Fed. Rep. 218. HOYNE, O'CONNOR & IRWIN, for defendant in error: An order of court reversing a judgment is a final judgment as to the facts upon which the decision of the court was based. People v. Cohen, 219 Ill. 200; In re Estate of Maher, 204 id. 25; Trust Co. v. Railway Co. 217 id. 504; Heimann v. Wilke, 219 id. 310. There can be no recovery where the insured is hanged for the commission of a crime and suit on the policy is brought by the legal representative of the insured or one claiming through the insured. Therefore there can be no recovery, in such a case, upon a policy payable to the legal representative of the insured. Collins v. Insurance Co. 27 Pa. 353; Cleaver v. Life Ass. I L. R. Q. B. 147. Death in consequence of crime is not one of the risks covered by a contract of insurance. Burt v. Insurance Co. 187 U. S. 362; Supreme Commandery v. Ainsworth, 71 Ala. 436; Ritter v. Insurance Co. 169 U. S. 139. Public policy will not permit a recovery by one who seeks to profit by his own wrong or by the wrong of another through whom he claims. Schreiner v. High Court, 35 Ill. App. 576; Knights of Honor v. Menkhausen, 209 Ill. 277; Supreme Lodge v. Kutscher, 72 Ill. App. 462. Mr. JUSTICE VICKERS delivered the opinion of the court: Whether the legal execution of the assured for a crime committed by him constitutes a defense to an action by his legal representative on a life insurance policy is a question of first impression in this State. Where this defense has been sustained it is generally upon the ground that it is contrary to public policy to permit a recovery where the death is in consequence of a violation of the law. This is the basis of the decision of this case by the Appellate Court and is the main reason urged here in support of the judgment below. It is said by the defendant in error that to permit a recovery on this policy would be contrary to the public policy of this State, as it would tend to remove a restraint thrown around persons who are tempted to commit crimes. The argument rests upon the same grounds that were urged centuries ago in support of the now obsolete doctrine of attainder and corruption of blood. In the earlier history of the common law various consequences other than the punishment of the offender followed conviction for felony, and in some instances the causing of a death by mere misadventure or negligence was visited with certain forfeitures and penalties. Without attempting historical accuracy, the law of England provided that all the property, real and personal, of one attainted should be forfeited and his blood so corrupted that nothing could pass by inheritance to, from or through him. He could not sue, except to have his attainder reversed. Thus the wife, children and collateral relations of the attainted person suffered with him. As said by Bishop: "When the tree fell it brought down all its |