The policy was issued January 18, 1905, to Charles J. Donohoe, who died January 24, 1918. Premiums were paid on January 18th each year until January 18, 1916, when insured defaulted in the payment of premiums, and so continued in default until his death, The suit is brought by appellant as administrator of the estate of Charles J. Donohoe, deceased. The sole question in the case is one of law, and involves a construction of the policy. If the policy is found to contain a provision for an unconditional commutation of the policy for nonforfeitable paid-up insurance, as mentioned in section 6154, R. S. 1919, then the defendant made a correct tender by paying into court the said amount as due the beneficiary under the policy. If, on the other hand, the insurance policy does not contain a provision for the unconditional commutation of the policy for nonforfeitable paid-up insurance, then the beneficiary is entitled to the face of the policy, to wit $1,000. Sections 6151, 6152, and 6153, R. S. 1919, pertain to nonforfeitableness of life insurance policies, paid-up policies, and the rule of payment on commuted policies. These are followed by section 6154, R. S. 1919, which is as follows: "The three preceding sections shall not be applicable in the following cases, to wit: If the policy shall contain a provision for an unconditional surrender value, at least equal to the net single premium, for the temporary insurance provided for hereinbefore, or for the unconditional commutation of the policy for nonforfeitable paid-up insurance, or if the legal holder of the policy shall, within sixty days after default of premium, surrender the policy and accept from the company another form of policy, or if the policy shall be surrendered to the company for a consideration adequate in the judgment of the legal holder thereof, then, and in any of the foregoing cases, this article shall not be applicable: Provided, that in no instance shall a policy be forfeited for nonpayment or premiums after the payment of three annual payments thereon; but in all instances where three annual premiums shall have been paid on a policy of insurance, the holder of such policy shall be entitled to paid-up or extended insurance, the net value of which shall be equal to that provided for in this article." surance, payable at death, for $104. Column 2. We think this provision of the policy must be construed to provide for an unconditional commutation of the policy for nonforfeitable paid-up insurance, and that therefore same comes within the purview of section 6154, R. S. 1919. This provision is almost a rescript of the provision of an insurance policy reviewed by this court in Stark v. Ins. Co., 176 Mo. App. 574, 159 S. W. 758. In that case the respondent here was then the appellant. In that case it was held that, under a policy providing for payment of a certain sum, upon proof of death, less any indebtedness owing by the insured to the insurance company, and further providing that, if the third or subsequent annual premium should not be paid when due, the insurer would ("there being then no existing indebtedness as aforesaid") continue the policy as paid-up insurance for a specified amount, an indebtedness owing insurer by insured, at the time of default in payment of premium, did not defeat the right to paid-up insurance. The decision further holds that the sentence "there being then no existing indebtedness as aforesaid" does not constitute a condition precedent but merely provides for the deduction of any indebtedness owing by the insured from the paid-up insurance in the same manner as any indebtedness is to be deducted in the event there is no default. Counsel for appellant argues that there is a distinction between that case and the case at bar. Of course the instant case is not a replica of the Stark Case; however, the Stark Case is a positive authority to sustain respondent's position. An insurance company may by its policy provide for an unconditional commutation of same for a paid-up policy for a definite sum after default of payment of certain premiums, and yet provide in the policy that, if there is an existing indebtedness, such sum is to be deducted in favor of the insurer. This clause means nothing more. The pertinent provision of the policy is This policy with such provision must be as follows: "After three full annual premiums shall have been paid hereon, then, in case of default in the payment of any subsequent premium or installment thereof, the company will (there being then no existing indebtedness as aforesaid) after payment of premiums for three full years, without any action on the part of the insured, continue this policy as participating paid-up in held to be one unconditionally commuting the policy for nonforfeitable paid-up insurance as contemplated by section 6154, R. S. 1919. See Bothmann v. Ins. Co. (Mo. App.) 231 S. W. 1007; McLeod v. Ins. Co., 190 Mo. App. 653, 176 S. W. 234. Judgment affirmed. ALLEN, P. J., and BECKER, J., concur. BRAGG v. OSBORN et al. (248 S.W.) (Supreme Court of Tennessee. March 3, 1923.) Appeal from Chancery Court, Rutherford County; Thos. B. Lytle, Chancellor. Suit between Omega Hembree Bragg and C. T. Osborn and others. From a decree for said Bragg, the Superintendent of Banks appeals. Reversed and remanded. Roberts & Cooper, of Nashville, for Bragg. Holloway & Coffey, of Murfreesboro, Wm. Hume, of Nashville, H. T. Stewart and W. Hancock, both of Woodbury, and G. S. Ridley, Jas. D. Richardson, Brown & Whitaker, and J. W. Sparks, all of Murfreesboro, for appellee. GREEN, J. The Citizens' Bank & Trust Company of Murfreesboro was taken in charge by the superintendent of banks on January 7, 1922, as an insolvent institution. Prior thereto it had qualified as guardian of Omega Hembree Bragg, a minor, and had received $10,000 of her funds on October 19, 1921. The question presented on this appeal is whether the ward is entitled to preferential payment out of the assets of the bank. The chancellor so decreed, and from this decree the superintendent of banks has appealed. The sureties on the guardian's bond are making the question. The chancellor referred the cause to the clerk and master as to certain matters, and the master made a report, which was confirmed. The concurrent finding, however, cuts no figure in the case since, in so far as we disagree with it, there is no evidence to support such finding, or the conclusion reached is upon a matter of law. The proof taken is quite meager, consisting alone of the deposition of the former cashier of the bank. He testifies that the bank undertook to receive this minor's fund and hold it intact not to lend out the fund or invest it, inasmuch as the young woman lacked only a few months of reaching her majority. He says that the fund was held intact in the bank's reserve, and that it was not converted or used by the bank. The money received was in the form of a check on the Louisville Farm Loan Bank. The check was placed to the credit of the minor on the books of the Murfreesboro bank. No effort, however, was made to keep the proceeds of the check separate; but such proceeds were commingled with other funds of the bank. The only effort made to trace these proceeds is an effort to follow them into what is called the bank's reserve. When the bank ceased business, it had in its vaults $4,606; $1,022.50 was in cash, the balance in checks on other banks. On that day, however, this bank had to its credit in the Fourth & First National Bank at Nashville, $33,200.58. The proof shows that during the time of this guardianship the lowest amount of the bank's apparent reserve was $11,366, counting cash and cash items in its vaults and deposits to its credit at its correspondent banks. It is said, therefore, the $10,000 belonging to this minor has all the while been held in the bank's reserve, and that she is entitled to reclaim it in full. We cannot agree that the credit at the Fourth & First National Bank, which existed on January 7, 1922, in favor of the Murfreesboro bank, can be treated as any part of the latter bank's reserve. The proof shows that this money in the Fourth & First National Bank was the proceeds of a loan. While, under section 19 of chapter 20 of the Acts of 1913, a bank's reserve may consist in part of a balance due by banks and bankers payable on demand, a bank is prohibited from building up its reserve out of loans or discounts. Since there was only $4,606 in cash at the Murfreesboro bank when it suspended, it necessarily follows that more than half of the minor's money had been converted and used, notwithstanding the idea of the cashier to the contrary. The so-called reserve in the Fourth & First National Bank was not a reserve at all, but resulted from a discount. The minor has therefore failed to trace any part of her money into the balance of the Murfreesboro bank at the Fourth & First The proof affirmatively National Bank. shows this balance was otherwise acquired. The question remains as to whether she has traced her money into the fund remaining in the Murfreesboro bank when its doors were closed. We undertook to review our cases upon the subject of following trust funds quite recently in McDowell v. McDowell, 144 Tenn. 452, 234 S. W. 319, 18 A. L. R. 623, and from this review announced our conclusion as follows: "In order to follow trust money there must be specific property, capable of being identified, into which the trust money has gone." McDowell v. McDowell, supra. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The old rule undoubtedly was that, since, administering and has mingled several trust money has no earmarks, it could not be fol- funds. Such an effort was made in Pennsyllowed when a trustee mingled his own with vania, and the Supreme Court of that state that of his cestui que trust. Our cases rather denied it and said: lead to the conclusion that there has been no relaxation of this rule in Tennessee Arbuckle v. Kirkpatrick, 98 Tenn. 221, 39 S. W. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854; Akin v. Jones, 93 Tenn. 353, 27 S. W. 669, 25 L. R. A. 525, 42 Am. St. Rep. 921; Sayles v. Cox, 95 Tenn. 579, 32 S. W. 626, 32 L. R. A. 715, 49 Am. St. Rep. 910; Klepper v. Cox, 97 Tenn. 543, 37 S. W. 284, 34 L. R. A. 536, 56 Am. St. Rep. 823. In McDowell v. McDowell, supra, we declared that this court had never accepted the doctrine that, if one's general estate had been swelled by the proceeds of trust property, the trust might be established against the general assets, although the estate was insolvent. The case of Knatchbull v. Hallett, L. R. 13 Ch. Div. 696, has been rather generally followed in this country, and has been approved by the Supreme Court of the United States in Central National Bank v. Connecticut Mutual Life Ins. Co., 104 U. S. 54, 26 L. Ed. €93. It is the line of authorities following this case that is invoked in behalf of the minor here. The doctrine of these cases is that, where a trustee blends in a bank account his own money with a beneficiary's, from which account the trustee subsequently withdraws funds, the withdrawals will be presumed to be the trustee's own funds, which he had a right to withdraw, and the balance will be presumed to include the beneficiary's funds, which the trustee had no right to use. To save a trust fund, another fiction was applied by this court in Brocchus v. Morgan, 3 Shan. Cas. 671, and we are not required to say that in a proper case Knatchbull v. Hallett wouid not now be accepted. In the case before us, however, the defunct bank was not only the guardian of this minor, but of several others. In addition to the $10,000 in question, it had more than $8,000 belonging to other minors. It was trustee for all of these, and, regardless of any particular agreement made, it handled the funds of all these minors in the same manner. We think Knatchbull v. Hallett, supra, cannot be applied in favor of any one beneficiary, where an insolvent trustee has been "The case is distinguishable from that of an individual trustee, who mixes the funds of a single cestui que trust with his own account. In such case it can readily be determined whether and to what extent he has appropriated the trust fund to his own use. On the other hand, when a trust company deposits in a common accannot be said that the mere fact of there being count funds belonging to various persons, it on deposit at all times sufficient to meet the claim of any particular customer of the bank entitled that customer to claim it as against other claimants, whose money also went into the same account. Claimant could not trace title to any particular part of the deposits and his claim can therefore rise no higher than the claim of others whose money was deposited in the same general fund." Commonwealth ex rel. Bell v. Tradesmen's Trust Co., 250 Pa. 378, 95 Atl. 577, L. R. A. 1916C, 10. The fiction of Knatchbull v. Hallett, supra, cannot be indulged here. The guardian had no right to use the funds of any of these wards in its business. The authority of a guardian to invest the ward's money is purely statutory. Woodard v. Bird, 105 Tenn. 671, 59 S. W. 143, and the statutes set out with precision the investments that may be made. Thompson's Shannon's Code, § 4280 et seq. We could not presume that, in the depletion the guardian wronged one minor to the adof the commingled trust funds in its care, (248 S.W.) HEDTKE v. HEDTKE. (No. 3332.) (Supreme Court of Texas. Feb. 14, 1923.) 1. Divorce 249 (3)-Real estate of parties may be divided in the discretion of the court as seems equitable. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 4634, the district court has power, in granting a divorce, to divide the property of the parties, whether homestead in character or otherwise, and whether community property or separate property, in such way as it deems just and right, having due regard to the rights of the parties and of the children; provided, however, that neither party can be divested of title to real estate. 2. Husband and wife 4-Husband's income subject to maintenance of wife and children. A husband's income from his separate property is burdened with the duty to maintain his wife and children. 3. Divorce 249 (3)-Court may adjudicate property rights in whatever manner necessary to do equity. GREENWOOD, J. Questions certified from the Court of Civil Appeals of the First Supreme Judicial District of Texas in an appeal from the district court of DeWitt county. The certificate of the honorable Court of Civil Appeals is as follows: "In the above styled and numbered cause, now pending in this court on appeal from the district court of DeWitt county, it being a suit for divorce, division of property, and determination as to which of the parties should have custody of the minor children of the marriage, the following facts appear: "The trial court submitted fact issues between the parties to the jury upon special issues, who found their community property consisted of personalty only, which was accordingly equally divided between them, and that the only real estate involved, which consisted of 1972 acres of land in DeWitt county and 100.4 acres of land in Karnes county, belonged to the husband, the defendant in the suit, as his separate property, and that no community funds had been used in the purchase of either tract. It also appeared that the 100.4 acres in Karnes county was fully paid for, but there was a mortgage indebtedness of $7,500 against the DeWitt county tract. In her petition for divorce the wife alleged that the 1972 acres was the homestead of the parties and their children, and was so used until she was com Under Vernon's Sayles' Ann. Civ. St. 1914, art. 4634, although the court in ordering a divorce may consider benefits to the innocent spouse which she would have received from the other's estate had the marriage continued, its adjudication of property rights is not lim-pelled to abandon him a short time before the ited to compensation for such benefits, but it may for the purpose of doing equity award all the personal property to either spouse, and may subject the revenue of all real estate, separate or community, belonging to either or both, to the support of either or both, or to the education and support of the children. 4. Divorce 253-Adjudication of husband's homestead to wife not a jury question. No question of fact for the jury was presented in determining and adjudicating to the innocent wife and children the use and occupancy, during her natural life, of homestead property, title to which was in the husband. 5. Divorce 249(6)—Adjudication of husband's homestead to wife proper. In an action for divorce, where the court decreed the use and enjoyment of an unincumbered 100-acre tract belonging to the husband to the wife for herself and her two minor children, leaving to the husband only incumbered real estate, he had no cause for complaint where the community property, consisting of personalty only, was equally divided between them, and where she had no other real estate or homestead. Certified Questions from Court of Civil Appeals of First Supreme Judicial District. Suit for divorce by Lena Hedtke against J. G. Hedtke. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which certifies questions. Questions answered. filing of the suit; that she had no separate property of her own, and no homestead other than the two tracts of land referred to. Upon the recommendation of the jury a divorce was granted the wife upon her petition therefor, and custody of the two minor children of the marriage was awarded to her. After submitting the other issues referred to, with reference to homestead rights, the court gave the jury this instruction: 66 'Bearing the above in mind, and the fact that the uncontradicted evidence in this case shows that plaintiff and defendant have two minor children, Evie Leona and Walter Irvin, and that the defendant has a minor daughter, Gussie, by a former marriage, you may make some provision with reference to homestead rights if you think right and proper; or you may decline to make any provision with reference thereto. 'Special Issue No. 17. What provision, if any, as to homestead rights do you make in this case?' "In response to this question the jury replied: 'We make the following provision with reference to homestead rights. We set aside the 100.4 acres of land situated in Karnes county, Tex., 3 or 4 miles northwest of Runge, as a homestead for plaintiff and her two minor children, Evie and Walter Irvin, for her lifetime. Upon this answer the court decreed as follows: 'And it further appearing to the court from said finding and verdict of the jury that plaintiff should be granted and allowed a homestead for herself and her two minor children during the balance of the natural life of plaintiff in the 100.4 acres in Karnes county, J. F. Murray, of Runge, and Davidson & Tex., it is therefore ordered, adjudged, and deBailey, of Cuero, for appellant. Crain & Hartman, of Cuero, for appellee. creed by the court that said tract of 100.4 acres of land in Karnes county, Tex., just For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes above mentioned, be, and the same is hereby, I through the estate of the other spouse, its set aside and awarded to plaintiff to be used power is not limited to providing compensaand enjoyed by herself and her two minor tion for such benefits. Instead the court is children, Evie Leona Hedtke and Walter Irvin to do complete equity as between the husHedtke, as a homestead during the balance of band and wife and the children, having due the natural life of plaintiff. * * Possession of said land to revert to said defendant, regard to all obligations of the spouses and J. G. Hedtke, at the termination of said home- to the probable future necessities of all constead rights as herein provided. * * And cerned. For the purpose of doing equity, it is hereby ordered and decreed that defend- the court may award all the personal propant take said two tracts of land as his sep- erty to either spouse, and may subject the arate property, subject, however, to the home-income, rents, or revenues of all real estate, stead rights as herein fixed and decreed and belonging to either or both of the spouses, given plaintiff in said tract of 100.4 acres of to the support of either or both of them, or to land in Karnes county, Tex.' the education and support of the children. "Under the facts stated we are in doubt as to whether or not the court, in so fixing homestead rights in the separate property of the husband in favor of the divorced wife for the use and benefit of herself and their two minor children as a homestead during the balance of her natural life, exceeded its power, under article 4634, Revised Statutes of 1911. Accordingly we beg to propound to your honorable court the following questions: "First. Was the trial court authorized to decree plaintiff the right to use and occupy as a homestead during her natural life the 100.4acre tract of land owned by the defendant in his separate right? "Second. Could the plaintiff or the minor children be given the right to hold and occupy said premises as a homestead after said minors became of age or ceased to be constituents of plaintiff's family?" Section 4 of the act of January 6, 1841, being article 849 in Hartley's Digest, authorized the court decreeing a divorce to"decree and order a division of the estate of the parties in such way as to them shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest him or herself of the title to real estate or to slaves." Mrs. Nancy Fitts obtained a divorce from Oliver H. Fitts on the ground of cruelty. By the decree of divorce, rendered under section 4 of the act of 1841, slaves belonging to the separate estate of Mrs. Fitts were placed in the hands of a trustee, who was directed to apply the net proceeds of their [1] By express terms of article 4634 of use, during the natural life of Oliver H. Vernon's Sayles' Texas Civil Statutes, the Fitts as follows: One-fifth to Oliver H. district court was empowered, in pronounc- Fitts, one-fifth to Mrs. Fitts, and threeing the decree of divorce, to order a division fifths to their children. Mrs. Fitts sued out of the estate of the parties to the divorce a writ of error, presenting the single quessuit in such way as to the court seemed just tion that the trial court erred in subjectand right, having due regard to the rights ing slaves which were her separate properof each party and of the children, provided ty to the support of her former husband neither party was divested of title to real and in not adjudging to her absolutely the estate. Real estate impressed with the home- lands belonging to her separate estate. Aftstead character was as much subject to di- er reviewing the decisions of other states convision as was nonexempt property. The struing similar statutes, which held that even estate subject to division, under the statute, the guilty husband was entitled, under cerincluded all property of the parties whether tain circumstances, to maintenance out of community property or separate property. The meaning of the statute is not different from what it would have been had the word "property" been substituted in its phraseology for the word "estate." the wife's separate property, this court held that, under facts showing that the husband had no property and was incapable of supporting himself, and that the wife acquired her property by gift from her husband, the [2] The income from property belonging provision made by the decree of the trial to the husband during marriage is subject court for the husband's support was consistto a charge or burden for the maintenance ent with the statute and did not divest the of the wife and every minor child. The bur- wife of her title to the slaves. In orderden issues from the marital contract, and ing an affirmance, the Supreme Court directis incident to the husband's relation to the ed that the court below proceed to make an family. It is unthinkable that the law order, under which such portion of the revshould reward the husband, by lifting a enues to be derived from Mrs. Fitts' separate charge from his income, for proving unfaith-lands as might be necessary be also appropriful to obligations on which rest the sanctity ated to Mr. Fitts' support. The statute was and welfare of the home. construed in the following plain and clear [3] While the court, in ordering the di-language of Chief Justice Hemphill: vorce, should not be unmindful of the benefits which the spouse not at fault would have derived from a continuance of the marriage, "As the parties in marriage, in this state, very often have each separate property, and as very generally there is some community prop |