several days after the second premium was due. It was attempted to show the custom of the company to waive the prompt payment of premiums and to accept them within thirty days after they became due-a fact which was known to the insured. At the trial there was a verdict for the defendant and appeal taken.

HELD-The failure to pay the premium when due terminated the contract, as the insured was not intended to have the rebate applied on the second premium until the balance due on such second premium had been paid. The fact that the company had indulged its patrons by accepting payment of premiums after they had become due affords no argument for recovery in a case like this. Doubtless if the insured had been a well man or in good health at any time within a reasonable period after the premium matured, the company would have received the money and restored the policy; but the mere indulgence to those insured ought not to affect the written contract or require the company to accept the premium after its maturity, when the insured is in bad health and perhaps in a dying condition. To adjudge the appellee to have been a member of the company at his death would be to dispose of the necessity of paying the premiums as they become due and require the company to pay the insurance money in the face of an expressed stipulation to the contrary. The judgment of the court below is affirmed. Richardson vs. The Mutual Life Insurance Company of Kentucky-Court of Appeals, Ken

tucky.

THE POWER OF THE COURT TO REFORM POLICY.

In this case the applicant for insurance informed the agent that he wanted to insure his life for the benefit of his wife. The application was so filled out, but the agent thought that in the absence of the wife the application would be irregular, and so induced the applicant to sign a new application making the insurance payable to himself. The agent assured him that his wife would get the money under the second form of application as well as under the first. The insured having died, his creditors claimed the money under the policy, while the widow maintained that the insurance was designed for her benefit; that it was a mistake that the policy was made payable to the insured.

HELD-The Chancellor has the power to reform a written contract where there has been a mutual mistake of law as to the effect of the terms used as well as where there has been a mistake of fact. In this case it was within his power to correct the mistake and give the fund to the widow.

Welch, Administrator, vs. Welch-Kentucky Superior Court.

RETURN OF POLICY NECESSARY TO OBTAIN PAID UP INSURANCE.

A policy was issued to the insured providing that when at least three full annual premiums had been paid and the policy, duly receipted, had been transmitted to and received by the company before default was made in the payment of any premium due thereon, or within thirty days thereafter, such policy might be exchanged for a paid-up term policy. It was in evidence that a letter was addressed to the secretary of the company demanding a paid-up policy, but the original policy duly receipted, had not been returned.

HELD-The rule of construction applied to contracts in general applies to this one. It is to be interpreted according to the sense and meaning of the words used. The right to the paidup policy was expressly made dependent upon the return and receipt of the original policy, and such terms not having been complied with no suit can be maintained.

The Universal Life Insurance Company vs. Devore et al-Virginia Supreme Court of Appeals.

RIGHTS OF CREDITORS IN ENDOWMENT INSURANCE.

This was an action brought by a creditor to obtain a satisfaction of his judgment from the proceeds of an endowment policy. At the trial court the case was decided against him and he appealed.

HELD-While ordinarily a policy of life insurance payable to the wife upon the death of her husband cannot be applied to the payment of his debts, yet where such policy is in the form of an endowment, providing for a specified sum to be paid to the insured after a certain number of years, the transaction is in the nature of a loan, the insurance feature of it being a

mere incident. The premiums in this case having been paid by an insolvent debtor and the endowment paid to the wife during the lifetime of the husband, the money so paid is not transmutable so as to become absolutely hers as against creditors of the husband, but is subject to their claims. Judgment reversed.

Talcott vs. Field et al-Nebraska Supreme Court.

PROCEEDS OF POLICY HELD IN TRUST.

This was a case upon a bill of inquiry asking for directions relative to the disposition to be made of the proceeds of certain life policies held by the plaintiff.

HELD-Where the policy provides that the money shall be paid to the insured himself if he lived to a certain date, and if he died before that date to a person named as trustee in the interests of the mother of the insured, it is competent to show by parol evidence that the insured stated in his lifetime that his design in creating the trust was to provide for the support of his mother after his death. The mother having died before the insured, there was a trust created in his favor and the proceeds of the policy became a part of his estate. Bancroft vs. Russell-Massachusetts Supreme Court.

ENTITLED TO RECOVER PREMIUMS PAID.

In this case it was shown that an agent of the company solicited the plaintiff to take out policies on the lives of her sister and brother payable to herself. She signed the names of the sister and the brother to the application with the knowledge of the agent. Several years later she ascertained that the policies were void on that account and brought action to recover the premiums paid.

HELD-The defendant company was chargeable with the agent's knowledge of the invalidity of the policies, and though the facts were never communicated to the company the plaintiff was entitled to recover. The defense that the plaintiff had forged the names of her sister and brother to the applications and that she was by this action seeking to take advantage of her own wrong, cannot be sustained in the absence of any intent to deceive, or of any representation on her part that the signatures were genuine, and in view of the agent's assurance that it was competent for her to sign their names. Judgment for plaintiff affirmed,

Fulton vs. Metropolitan Life Insurance Company-New York City Common Pleas Court.

CREDITORS MUST PROVE INDEBTEDNESS AT DECEASE OF INSURED.

The policy in suit, amounting to $10,000, was issued in January, 1883, upon the life of Michael O'Brien, who died in September of the same year. The policy specified that in the event of the death of the insured the proceeds of the policy should be paid to his creditor and the beneficiary, Michael Crotty. The defendant company denied O'Brien's indebtedness to the plaintiff, while the latter failed to furnish evidence showing the extent of such indebtedness at the time of O'Brien's decease. Plaintiff contended that as the creditor of the deceased and as beneficiary under the policy he was entitled to the full amount named therein. At the trial there was a verdict for the defendant and an appeal taken.

HELD-Justice Brewer delivering the judgment of the court said: "If a policy of insurance be taken out by a debtor on his own life, naming a creditor as beneficiary, or with a subsequent assignment to a creditor, the general doctrine is that on the payment of the debt the creditor loses all interest therein, and the policy becomes one for the benefit of the insured and collectible by his executors or administrators. But whatever doubts may exist as to the law applicable to such cases, or the rights of action on such a policy, the plaintiff in this action put his own construction on the contract, and tendered an issue which was accepted by the com. pany. He alleged that he was a creditor at the time of the contract and at the time of the death. Upon the issue thus presented the case went to trial. The promise of the policy is to pay Michael Crotty, his creditor, if living; and it is contended that this is an admission on the part of the company sufficient to justify a verdict against it. If an admission at all it is good only as an admission of the date at which it was made, to wit: the date of the policy. The relation of debtor and creditor is not a permanent one like that of parent and child, but one which may vary from day to day, changing both in fact and amount according to the successive

business transactions between the parties. So, admission or proof that the relation of debtor and creditor existed between two parties at one date is not admission or proof that months thereafter the same relation and the same amount subsisted. Again, the indebtedness of O'Brien to plaintiff, if any existed, was a matter peculiarly within the knowledge of the plaintiff; and if that indebtedness is an essential factor in his right to recover, justice requires that he should, by affirmative testimony, establish both the fact and amount. Still again, not only does justice between the parties but also that public policy which denounces wagering contracts, require that the proof of the indebtedness should be distinct and satisfactory. The ruling of the court below, in which there was no error, is therefore confirmed.

Crotty vs. The Union Life Insurance Company of Maine-Supreme Court of the United States.

WHAT CONSTITUTES SOBER AND TEMPERATE HABITS.

In the application for the policy in this case the applicant had, in reply to interrogatories, stated that he was of sober, temperate habits, and had not taken a drink for over a year. Upon his death the company refused to pay on the ground of intemperance and breach of warranty.

HELD-The representations of the insured in his application that he was a man of temperate habits and had not taken a drink for over a year, was material to the risk and constituted a warranty. A warranty that the applicant was of sober and temperate habits means not only that he was so at the time of the application, but for such a reasonable time prior thereto as would allow one to form a habit.

The Mutual Life Insurance Company vs. Gividen-Kentucky Superior Court.

INSURANCE FOR BENEFIT OF CREDITOR.

Defendant held a policy for $2000 on the life of his debtor. On the debtor's suggestion that this policy was insufficient to secure the debts due, and at his request, the defendant took out another policy on the debtor's life, and agreed in consideration thereof, to pay the expenses of the debtor's burial, which expenses the defendant paid, and also advanced other money for the support of the debtor's family. Defendant recovered a portion of the two policies from the two companies.

HELD, in an action by the debtor's administrator to recover the balance of such insurance, after paying the debts and costs, on the ground that the policies were speculative, that the court erred in separating the policies, and holding that the indebtedness existing when the first policy was issued was sufficient to take it out of the speculative class, and leaving the jury to determine whether the subsequent indebtedness for burial expenses and advances was sufficient to validate the second policy, defendant having a right to require that the whole indebtedness should be considered in reference to both policies.

CONTRACT BETWEEN General AgeNT AND DISTRICT AGENT.

This was a suit brought by J. E. Lester against the New York Life Insurance Company for damages alleged to have resulted from a breach of its contract with him, which contract in writing was attached to the petition and made a part of the same. It was alleged that the company appointed him its district agent to canvass for life insurance in a Western district of Texas upon certain stipulated conditions as compensation. He went to El Paso, the headquarters of the district, and found there another duly accredited agent of the company, whose authority to act as such agent was anterior to that of the plaintiff, by reason of which, and of notice given him by such agent, he was unable to do any business, and returned to his home in the city of Houston involving certain expenses, loss of time, and profits which he would have made if he had been allowed to conduct the business as the sole and exclusive agent in the territory assigned him. The agreement shows that the plaintiff was appointed by W. E. Moore, general agent of the New York Life; that he was prohibited from making any contract for the company. There were stipulations providing what should be done with the money received by him, apportioning his district, fixing a commission basis on original cash premiums on policies effected with the company through his agency. It was also agreed that

in case the general agent, or any special agent acting for such general agent, should secure business conjointly with the plaintiff, the commissions were to be equally divided. It was also stipulated in the contract that the district agent should not have, under this agreement, any claim whatever for commissions or other services against the New York Life Insurance Company. Plaintiff made Moore, the general agent, a party to the suit, but dismissed him before the trial, leaving the suit standing against the company only. The defendant demurred to the petition, which demurrer was sustained by the court; and the plaintiff declining to amend his petition, judgment was rendered for the defendant and plaintiff appealed.

HELD-The question raised is, does the petition state a cause for action against the company? It is contended by the appellant that though the contract shows it was made with Moore, it is alleged that he had authority from the company to do so and that the demurrer should not have been sustained on the ground that the contract was with him only. It was sufficient to admit the testimony of the agent's authority to act for the company. It is further alleged that the contract bound the company. In determining the question the court below properly looked to the contract and decided that it did not. It shows affirmatively that the company was not to be bound by the contract and stipulates that the plaintiff shall have no claims whatever for commissions or services against the company. No other claim could grow out of the contract, and a breach of it would not give plaintiff a right of action against the company for a breach of its own contract. The petition further alleges that the plaintiff was to have exclusive right to act as the company's agent in the district assigned to him, but upon inspection of the contract we find that it contradicts this affirmance, for it not only does not constitute him the sole agent, but it contains express stipulations wholly inconsistent with such an inference, recognizing the right of the company to have other agents in the same district. We need not further discuss the matter; the court did not err in sustaining the demurrer, and the judgment should be affirmed.

Lester vs. New York Life Insurance Company—Supreme Court of Texas.

PREMIUMS PAID BY AN INSOLVENT.

The beneficiary under certain life insurance policies was appointed administratrix of the insured after his decease. Objection was made to her official report by certain creditors of the deceased on the ground that he had, during his life, paid the premiums on these life insurance policies after he became insolvent; that the proceeds of such policies had been collected by the administratrix as beneficiary under them, and it was claimed that she should account to the court for the sum of the premiums paid by the deceased upon such policies while insolvent. HELD-The administratrix was not required to deduct from the proceeds of the policies in her hands the amount of premiums paid by the insured during his insolvency, and could not be required to report to the court such amounts as assets on or belonging to the estate of the deceased.

Succession of Brownlee-Louisiana Supreme Court.

INSURED RESPONSIBLE FOR FALSE ANSWERS WRITTEN BY AGENT.

Suit was brought to recover under a policy of insurance issued upon the life of William Fitzmorris. The policy contained the provision that no agent was authorized to make or modify the contract, or to bind the company by making any promise or by receiving any representation of information not contained in the application. The defendant set up a breach of warranty in the application. At the trial it was shown that in answer to the question as to whether or not the applicant had made any proposition or application for life insurance in any other company or association which had not been issued, he responded in the negative. It was shown that he had previously made an application to another company, had been examined by a medical examiner, and that his application was rejected. For the plaintiff it was shown that the agent of the defendant company wrote down the answers to the questions in the application which was signed by the plaintiff, and that this agent knew of the application made to another company, and its rejection, as it was through him such application had been made. There was a judgment for defendant and plaintiff appealed.

HELD-The application was signed by the plaintiff and contained his agreement that “all the foregoing statements and answers are by me warranted to be true." One of them was that

he had not previously made a proposition for life insurance in any other company or associa tion on which a policy had not issued. The defendant company issued from its home office in another State, in consideration of the statements contained in the application, its policy insuring the life of the applicant. The applicant in effect affirmed that the statements were correct as written down in the application, and we do not think that their binding force can now be avoided, either by evidence that the applicant was not acquainted with the contents of the application or that they were known to be false by the soliciting agent. Judgment affirmed.

Fitzmorris vs. Mutual Life Insurance Company-Supreme Court of Texas.

DISPOSITION OF DEAD WIFE'S POLICY.

In November, 1873, one Pellerin took out a policy on his life in the Etna Life of Hartford for $1000, the beneficiary named in the application being "wife, Mrs. Pellerin." On the 12th of June, 1877, the wife of the insured died, leaving a daughter born of the marriage; she also left a will naming her husband universal legatee and testamentary executor. In 1879 Pellerin married again, making a previous contract stipulating separation of property wherein no reference was made to the policy in suit. In September, 1891, Pellerin died, bequeathing by will all his property to his daughter and appointing as his executor one Gaucher, continuing his powers as such until the daughter should become of age, and vesting him with the administration of his estate. Both the widow and daughter laid claim to the policy and the company paid the proceeds into court. Two petitions were presented to the court; one from Gaucher, the executor of the will, in connection with that of Isaac Pellerin, as tutor of the daughter; the other from the widow as claimant.

HELD-The wife for whose benefit the policy was taken having pre-deceased her husband, the benefit thereon reverted to the insured and was vested in him at the time of his second marriage. There was no appropriation in favor of his second wife; his contract of marriage with her stipulated separation of property between them, and by his will he left all his property to his daughter. He must be presumed to have known that the policy reverted to him, and that he could deal with it as if the insurance had been effected for his own benefit, and therefore his continued payment of premiums is quite consistent with his intention to bequeath the amount of it to his daughter, as he did. By the terms of the policy the amount was payable to Mrs. Pellerin, the first wife, her executors, administrators or assigns. She constituted her husband her sole legatee and executor. Of course the money could not be paid to the husband as executor, as it was only payable at his death; but whatever interest the first wife had in the policy disposable by will went under her will to her husband. It appears, therefore, that the petitioners, Gauchin and Pellerin, are entitled to the money. The court so orders. Ætna Life Insurance Company, depositor in Court, and Gaucher et al-Superior Court of Montreal.

WHAT IS SUFFICIENT NOTICE OF PREMIUMS DUE?

The question as to the sufficiency of notice given insured regarding premiums due is one that has led to much litigation. The following opinion, delivered by Justice Gray, all the other justices concurring, of the New York Court of Appeals, is so explicit in the matter that we give it here entire :

This action is to enforce the payment of the sum secured in a policy of insurance, issued by the defendant to the plaintiffs' intestate on July 23, 1884. By its terms the defendant promised to pay to the assured, or to his legal representatives, the sum of $10,000 within ninety days after satisfactory proof of his death, "provided such death shall occur before 12 o'clock noon on the 23d day of July, 1885." Defendant further promised "to renew and extend this insurance during each successive year from the date thereof, upon condition that the assured shall pay, on or before the 23d day of July in each successive year during the continuance of the contract, the mortuary premiam, * * and also an expense charge of three dollars on each $1000 insured therein; the payment of said annual mortuary premium and the annual expense charge being the consideration for the continuance of the insurance in each successive year," etc.

*

It is plain that this policy was a contract for an insurance for the term of one year only;