App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. authority, may take the securities out of the possession of the executors and put them in some other place, there to remain until the further order of the court. (Matter of Gilman, 41 Hun, 561.) It has also been held that in the exercise of the authority given to the Surrogate's Court by the sections above cited, he has jurisdiction, if it is necessary in determining questions arising upon the accounting, to construe the will (Purdy v. Hayt, 92 N. Y. 446), and in the exercise of that jurisdiction he has precisely the same power as is possessed by the Supreme Court. (Garlock v. Vandevort, 128 N. Y. 374.) The complaint in this action attacks the executors only in their quality as such. It does not call upon the court to construe any portion of the will except so far as such a construction is necessary to determine the propriety of the conduct of the executors in the distribution of assets and to prescribe their acts in that regard. So far as can be gathered from the complaint or from the opening of counsel, there was no disposition made of real estate in the will. As a matter of fact the will did dispose of real estate; but no question arising upon that portion of the will is presented in this action, and no possible question is presented which is not before the surrogate in the proceeding for a judicial settlement and which he is not necessarily called upon to determine before a decree can be made in that proceeding. All the parties who are interested in that proceeding are before the surrogate. The jurisdiction of the subjectmatter is fully given to him by the statute. There is no suggestion that he cannot make an effective decree as to every matter as to which this court is called upon to determine. It is said that this action brings in question the acts of the executors as trustees of the fund of $150,000 which is to be set apart for the plaintiff's benefit by them. But that fund is, as appears, not yet set apart from the body of the estate, and the complaint is that the executors refused to set it apart and to establish the fund which they are to hold as trustees. It is clearly within the jurisdiction of the surrogate, as a result of the accounting, in the performance of his duty, to enforce the payment of legacies and the distribution of the estate, to direct the executors and determine how much is necessary to be set apart. to bring up the fund to the full amount of $150,000, and to direct them to set it apart; and when that shall have been done it will be FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. time enough, if necessary, to invoke the jurisdiction of this court to control these executors or to remove them if they are recreant to their trust. We can see no question presented here which cannot be presented and determined by the court of the surrogate; and no special circumstances which would prevent that court from doing full, adequate and complete justice in regard to this matter. For these reasons it seems to us that it is proper that the determination of this matter should be left with the Surrogate's Court, where the statute has put it, rather than that it should be drawn into this court, whose jurisdiction to do certain of the things which are demanded by this complaint is, to say the least, doubtful. The judgment of the Special Term is, therefore, affirmed, with costs to the respondents. VAN BRUNT, P. J., O'BRIEN and MCLAUGHLIN, JJ., concurred. EDWIN A. AMES, Appellant, v. THE MANHATTAN LIFE INSURANCE Insurance — offer in evidence as the entire “application," of a portion only of it — right to show that the insured gare true answers — delivery of the policy by the general agent of the company with knowledge that the insured was sick — proof of the actual application — wager policy. In an action brought to recover upon a policy of life insurance, in which a defense was interposed that the assured had made untrue statements in the application therefor, the first sheet of a paper was admitted in evidence, over the plaintiff's objection, as the application for the policy of insurance, notwithstanding the fact that another sheet of the paper, which was a part of it at the time the application was made, had been torn therefrom by the insurance company, although it confessedly contained statements made to the medical examiner as a portion of the application, and by him put upon paper as constituting the answers of the applicant. The second sheet of the original paper was subsequently offered in evidence by the plaintiff and excluded. Held, that such action on the part of the trial court required the reversal of a judgment in favor of the defendant. In such a case the plaintiff is entitled to show by a person who was present at the time the application was made that true answers were given by the App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. assured to certain questions contained in the application, to the regular medical examiner of the defendant, who was sent by its agent to take the application, the terms of which authorized the medical examiner to record the answers. The plaintiff may also show, as a waiver of an agreement that the policy should not take effect unless it was issued during the good health of the person insured, that the general agent of the company to take applications and deliver the policies, was notified, when he brought the policy to the office of the assured, that the assured was sick, but that the agent nevertheless delivered the policy. As tending to show the precise nature of the application upon the faith of which the policy was issued, the plaintiff may put in evidence a letter to the assured, signed by the vice-president of the company, declining to issue a policy upon the application as originally made, and may in connection with that letter show that the agent who brought it to the assured told him the terins upon which the policy would be issued; certainly where it appears that after the application had been delivered to the insurance company it was altered by somebody connected with that company. Where a policy of life insurance, payable to the assured's legal representatives, is effectually delivered to the assured, an assignee of the policy cannot be defeated in his claim thereon by the defense that the policy was a wager policy. APPEAL by the plaintiff, Edwin A. Ames, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of February, 1898, upon the verdict of a jury rendered by direction of the court. George W. Miller, for the appellant. Edward S. Rapallo, for the respondent. RUMSEY, J.: The plaintiff was the assignee of a policy of life insurance, issued by the defendant to one Henry A. Ostermoor upon the life of Ostermoor, payable to his personal representatives, and by Ostermoor assigned to the plaintiff. The defense substantially was that there was a breach of warranty by Ostermoor, who made untrue statements in the application. The defendant also claimed that there was an agreement that the policy should not take effect unless it was issued during the good health of the person to be insured, and that at the time it was issued to Ostermoor on the 4th of December, 1895, he was very sick and likely to die, and, therefore, the contract never had an inception. The complaint was dismissed by the learned trial [Vol. 31. FIRST DEPARTMENT, JUNE TERM, 1898. justice at the close of the evidence. Various exceptions to the rulings of the court in the admission and the rejection of evidence were taken by the counsel for the plaintiff during the trial, and he relies upon these exceptions to procure a reversal of this judgment. It is claimed by the learned counsel for the defendant that many of these objections were entirely immaterial. He insists that, as the case appeared before the trial court upon proper testimony, the contract never had any inception, and that it cannot be disputed but that there was a breach of warranty, and for those reasons the rulings upon evidence were entirely immaterial and need not be considered. The policy was dated on the 4th of December, 1895. It purports to have been issued in consideration of the application for the policy and the statements and covenants therein contained, which are a part of the contract, and it insures the life of Henry A. Ostermoor in the sum of $10,000. Certain conditions are printed upon the back of the policy, in which it is stated, among other things, that if any statement made in the application is, in any respect, untrue, the policy shall be void. There is a limitation of this condition which need not be considered here. The policy itself contains no provision that it shall not take effect unless it is issued during the good health of the insured, but in what was claimed to be the application, which was offered in evidence and received, there is an agreement by Ostermoor that there shall be no contract of insurance until a policy shall be issued by the company, and accepted subject to the conditions and stipulations therein contained, during the good health of the person to be insured. It appears, therefore, that at the foundation of the defense lies the application for the policy, and the defendant has no standing to establish either of the facts which it relies upon to relieve itself from the liability of this insurance, unless the application is before the court. The application was, by the policy, made a part of the contract, but a copy of it was not attached to the policy of insurance, but it was left to be produced by the defendant upon the trial if it saw fit to do so, upon notice being given to it. As the application was not in the possession of the plaintiff, the court did not require its production by the plaintiff while it had the case, but it was produced and offered in evidence by the defendant. It appeared that the application covered the first two pages of a sheet of four pages of paper. The part App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. of it which is called by the defendant the application contained ninety paragraphs. On the third page was what it called the medical examiner's report of the personal examination, which contained many paragraphs, commencing with No. 91. The first two pages upon which the application was put contained several references to the numbers on the third and fourth pages. The application was taken down in writing by the medical examiner, who also filled out what is called the medical examiner's report. It appeared from an inspection of the papers and from the medical examiner's statement that while the answers made by the applicant were put upon the first and second pages of the paper there were put in proper spaces on the third and fourth pages one or more statements made by the applicant to the medical examiner at the time of making the application and which qualified those answers. Whether those answers and qualifications were very material does not clearly appear and is not in our judgment of the slightest importance. It is sufficient that they constituted a part of the information which was given to the medical examiner by the applicant at the time the application was made and qualified the application and were put upon the same piece of paper on which the application itself was written. When the defendant came to offer what it was pleased to call the application in evidence it appeared that after that paper had been sent to the defendant's office by the medical examiner it had been torn in two, the first two pages, called the application, being offered in evidence and the other two pages not being produced for that purpose by the defendant at that time. It also appeared that one of the officers of the defendant after the application had been presented to him, and without the knowledge of Ostermoor, had altered it in another respect by striking out the statement made by Ostermoor that he desired an ordinary life policy and putting in that the kind of policy desired was a "twenty payment II. Y. W. Policy," the meaning of which was not clear. The policy which was issued did not agree in its terms with the one asked for by the application, for it was not an ordinary life policy and the amount of premium required to be paid for it was considerably larger than the applicant had proposed to pay in the policy for which he made an application. These facts having appeared, when the portion of the application produced by the defendant was offered in evidence, an objection |