DEATH BY LEGAL EXECUTION   477

CROPSEY, J. The action is to recover upon a policy of life insur ante. A o evidence was taken. The facts were all stipulated in the court below. Those that may be important are the following:

About April 21, 1922, the defendant issued a policy in the sum of $1,000 upon the life of plaintiff's testator. The policy was pay-able to Marie Rose Smith, the wife of the insured. All premiums were paid. The policy provided that, if the beneficiary died before the insured, the interest of the beneficiary should vest in the insured. About May 4, 1922, the insured murdered the beneficiary. For that crime he was convicted and executed about June 28, 1923. Thereafter the will of the insured was duly probated, letters testamentary were issued to the plaintiff, proper proof of death was given to defendant, and demand for payment made and refused.

In appellant's brief it is stated that by the terms of the policy the right of the insured to change the beneficiary was reserved to him. The policy is not before us, and there is no such concession in the stipulated facts, although respondent's brief does not dispute the accuracy of that statement. The question presented is: Where the insured murders the beneficiary, and because of his crime is convicted and electrocuted, may his estate recover upon a policy which provides that the interest of the beneficiary shall vest in the insured upon the death of the former?

No case in this state directly in point has been brought to our attention. The question has been decided, however, in other jurisdictions. We think the plaintiff is not entitled to recover. By killing the beneficiary the insured made the policy and its proceeds payable to himself and his estate. If recovery may be had, he would thereby enrich his estate upon his death." The principle enunciated in Riggs v. Palmer, 115 A. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819, seems to be applicable. There the per-son who was a legatee under the will of another killed that other, and the court held that the person committing the crime could not share in the deceased's estate, although otherwise he would have taken under the will. It was the act of the criminal that created his claim.72 In the case at bar, without a change of beneficiary, neither the insured nor his estate would have benefited upon his death. The criminal act of the insured made the policy payable to himself and his estate. The situation would be no different if the facts showed that the beneficiary could have been changed by the insured without the former's consent. Even though the insured had had that right, he did not exercise it, and the policy became payable to himself and his estate solely by virtue of his wrongful act in murdering the beneficiary.

11 Is it a crime for the insured to enrich his estate? Iie could have done so more surely and with less hazard by simply changing the beneficiary from his wife to his estate.

12 Is this analogy sound?