178 Iowa, 863, 160 N. W. 289, an action on a policy by the administrator of the insured, who died from a criminal operation, holding that no recovery could be had where it appeared that the insured's parents, who had aided in procuring the operation, were her sole heirs.

In Murchison v. Murchison (1918) Tex. Civ. App., 203 S. W. 423, affirming a judgment sustaining a demurrer to an action by the father, brothers, and sisters of the insured, against the beneficiary and the insurer, to recover a judgment on a policy of accident insurance, it was conceded by both parties that the insurer's liability would not be canceled because of the fact that the beneficiary obviously killed the insured; and it was held that the proceeds of the policy were in the nature of personal property, and that, the beneficiary having deprived herself of the right to take as beneficiary, and the insured having died intestate, the policy became payable to the insured's estate, and that the wife did not forfeit her rights under the Statute of Distribution, even though she did feloniously take her husband's life for the purpose of collecting the insurance money.

III. By-laws or policy provisions covering contingency.

The determination of the question under consideration in some cases is governed by provisions of the by-laws, or policies.

In Grand Circle, W. W. v. Rausch (1913) 24 Colo. App. 304, 134 Pac. 141, it was held that a by-law of a beneficial association, providing that if the insured should be murdered by the beneficiary the benefit should revert to the society, was valid, and that a recovery by the insured's heirs was precluded where she had been murdered by her husband, the beneficiary.

In Geer v. Supreme Tribe, B. H. (1917) 195 Mo. App. 336, 190 S. W. 72, one by-law of a benefit association provided that if the death of the insured should be caused by a beneficiary the certificate should be forfeited to the society, and should not be paid to the beneficiary or his heirs,

It

or the heirs or personal representatives of the insured; another by-law provided that no benefit should be paid if the insured was killed by any of the beneficiaries; and a third by-law provided that in the event of the death of a beneficiary prior to the death of the insured, without his having disposed of the benefit, it should be paid to the insured's personal representative for the benefit of his heirs. appeared that the beneficiary, the insured's husband, after inflicting mortal injuries upon her, committed suicide and died shortly before she did. It was contended in an action by the insured's administrator that the first two by-laws, in view of the third, were ambiguous, and should be construed most favorably to the insured; that the husband never became the beneficiary, since he died shortly before the insured, and that when the latter died, the designated beneficiary being dead, the insured's heirs became the beneficiaries; as a corollary the plaintiff claimed that the first by-law applied only when the designated beneficiary survived the insured, and thereby became a beneficiary in fact. The court stated that this was a very technical construction of the by-law, and that if followed to its necessary conclusion an insured could never be killed by anyone who was more than a contingent beneficiary when the mortal blow was struck, as lightning or some other quick agency might end the slayer's life before that of his victim. It was held, however, that there was no conflict in the by-laws, that they were written for different purposes, that the last related to policies which were valid obligations after the insured's death, and that the first two related to a different subject, that is, the forfeiture of the policies and the acts and conditions which would make the policy void, and had to do with dead policies incapable of enforcement by anyone.

In Robinson v. Metropolitan L. Ins. Co. (1918) 69 Pa. Super. Ct. 274, where an industrial life policy provided for the payment of a certain sum to the insured upon his attaining a stated age, and, in case of death be

fore reaching that age, for the payment of a like sum to the beneficiary, personal representative, or any person appearing to be equitably entitled to it, it was held, upon its appearing that the beneficiary murdered the insured, that the fact that the beneficiary named was disqualified from deriving any benefit under the contract did not discharge the insurer, and that the insured's administrator was entitled to recover. The court said: "If the person to whom payment was to have been made had previously died, or was incompetent to be a beneficiary, the company is not thereby absolved from payment. Public policy excuses it from performance according to the terms of the contract so far as the named beneficiary is concerned, but the application of this doctrine cannot be carried to the extent that

one is released from the performance of a contract where the full consideration has been received and nothing is left to be done except to pay the money agreed on, where, justly and equitably, payment should be made to the estate of the person who paid the consideration. The condition on which payment was to be made has arisen; the first beneficiary has ceased to exist, legally speaking; the defendant has not paid any other person to whom payment could have been made, and denies liability to pay to anyone. On such a state of facts the fund should be paid to the estate of the decedent. It is not reasonable that the felonious act of the beneficiary should discharge the obligation of the insurer and nothing in the contract requires us to hold it exempted." J. T. W.

de

fense of deprivation of beneficial use of premises.

2. The burden of establishing the defense of deprivation of beneficial use of premises in an action for rent due and unpaid is upon the one pleading it.

Contract intent.

presumption as to lawful

4. If a contract is fairly susceptible of an interpretation or construction which is lawful, it will be conclusively presumed that such was the intention of the parties rather than an agreement for something that is unlawful.

[See 6 R. C. L. 839.] Landlord and tenant effect of change of law on lease.

5. A lease which is lawful when made does not become unlawful by a subsequent change in the law, although the change may in some cases annul the contract obligation.

[See 16 R. C. L. 742.]

tion to the city of Des Moines. On a portion of the lot, and as a part of said property, is a frame building constructed and formerly occupied as a dwelling. This is the only building on the lot, and is within the fire limits established by the city. On May 22, 1917, plaintiff, by an agent, let the property by written lease to the defendants for the term of one year from June 1, 1917. By the terms of the lease the lessor was to make certain specified changes and repairs in the building to fit it for the lessees' use, and the lessees on their part undertook "to only use the premises for iron, metal, and rag business," and to pay a rental of $60 on the 1st day of each month. The lessees further bound themselves "not to engage in or permit any unlawful business on the premises, nor to permit the premises to be occupied for any business deemed extrahazardous on account of fire.' The lessees took possession of the leased premises, and paid all the monthly instalments of rent up to and including the month of October, 1917, when they abandoned the premises and notified the lessor of their surrender or offer to surrender the lease because of matters hereinafter related. From the date last mentioned lessees have paid no rent, and plaintiff in this action demands a recovery of the unpaid monthly instalments for the rental year.

The reason for defendants' abandonment of the lease and the ground upon which they deny liability in this action is as follows: On July 4, 1917, and when the lessees had been in possession about one month, a statute enacted by the legislature (chap. 184, 37th G. A.) became effective, providing that "the depository or storing of inflammable junk, such as old rags, rope, cordage, rubber, bones and paper by dealers in such articles within the fire limits of any city, unless it be in a building of fireproof construction, is a public nuisance and may be abated and punished as such," and the defendants say that, the leased premises being within the fire limits of

the city and the building not being of fireproof construction, the effect of said statute is to prohibit and destroy their rag business, for which the property was leased; that the principal business of the lessees there carried on was the buying, assorting, baling, storing, and shipping of rags, and that the statute which makes such business unlawful, and exposes the defendants to criminal prosecution, deprives them of any substantial or beneficial use of the property, thus releasing them from further obligation to pay rent.

I. Although the defendants as witnesses emphasize the use to which they put the leased premises as "the rag business," the testimony shows they also dealt largely in junk metals. It is shown that the upper story of the building was very largely, if not entirely, given over to the handling and sorting of rags, which were thrown down chutes made for low, where they were baled for that purpose into bins or boxes beshipment. Upon the lot outside of the house were stored, in large heaps, quantities of old iron and other metals, while brass, lead, copper, and other of the more valuable kinds of junk were stored in the building. There was a spur or side track from one of the railroads, laid to or across the rear of the lot, which facilitated the receipt and shipment of the wares in which the defendants dealt. Altogether, we are satisfied that, while the operation of the statute mentioned served to narrow or restrict to some extent the scope of the business of the lessees, we think the evidence is insufficient to sustain a finding that it deprives them of the beneficial use of the leased property;

Landlord and rag businessbeneficial use.

tenant-lease for

deprivation of

In the case of McCullough Realty Co. v. Laemmle Film Service, 181 Iowa, 594, 165 N. W. 33, on which appellant largely relies, the tenant was held released from his obligation to pay rent because by ordinance the city had prohibited the keeping, storing, or handling of motion picture films in the building leased by him, and, as the lease limited the lessee's use of the building to the keeping of a film exchange and theater supplies, the enactment of the ordinance left no beneficial use to him in the property. It was also held that the term "theater supplies" had reference only to supplies incident to the operation of film picture exhibitions, and that the prohibition of the conduct of a film exchange left the right or privilege of handling "theater supplies" in the building a thing without substantial value.

In this case, however, it seems clear that the right to buy, sell, store, and ship junk metals of all kinds, not only in the building, but upon the entire lot, is not in any sense a mere incident of the rag business, and that a loss of the privilege of using the building for the handling of rags does not deprive the lessees of the beneficial enjoyment of the property for the other specified uses. It may possibly render the use less valuable or less profitable, but there is no rule or principle of law which makes that fact a matter of defense or of counterclaim in an action upon the lease.

II. Counsel cite authorities upon the proposition that contracts to do an illegal act are void. The principle referred to is sound, but it can have no application here, for this contract was not unlawful when made, nor was it rendered unlawful by the statute which came into ef

was the intention of the parties, rather than an agreement for something which is unlawful. Tested by this rule, the lease is not open to the objection of illegality, and we need take no time to discuss or consider what would have been the rights or remedies of the respective parties, were the allegation of illegality sustainable.

III. The same principle renders unnecessary any discussion of the severable or inseverable character of the contract. Defendants' contention that it is inseverable may be conceded. It is one lease of one entire piece of property for one entire consideration. The plaintiff thereby leases her property for a stated term, for a stated rental, and for use in a described business, which is not illegal. If the business be of a nature which is affected unfavorably by a subsequently enacted valid police regulation, it is a misfortune which the lessee must bear, so long, at least, as the beneficial use and enjoyment of the leasehold is not wholly destroyed. Even if wholly destroyed, the lessee is released from his obligation, not because the contract is unlawful, but because by an act of legislative power the exercise by the lessee of his contract rights is forbidden.

Landlord and

words, tenant-effect of a lease which is change of law lawful when made

on lease.

does not become unlawful by a subse