App. Div.] FOURTH DEPARTMENT, JULY, 1905. "daughters," because that relationship did not actually exist and the parties should not be required to have falsified and misstated their relationship. This argument, however, does not seem to us to have force. Under the statute in question and for its purposes a person may create the relationship of father and child with one. who in blood and reality bears no such relationship to him. If a person sees fit so to do he may build up, for the purposes of the statute, a relationship of parent and child which supersedes and takes the place of the natural one existing between the child and some other person. When he has done this, the statute not only permits but requires that this new relationship shall be mutually acknowledged and recognized, and we see no way in which this may be so aptly and properly done as by employing the terms which naturally and universally indicate the relationship of parent. Those terms of "father" and "child" are properly applicable to the new relationship which has been created, and we do not think it was any excuse for withholding the mutual acknowledgment required by the statute to say that the employment of these terms would be an indulgence in falsehood and misrepresentation. The order appealed from should be reversed in so far as it modifies the order of July 21, 1903, by striking out the tax levied and assessed upon the legacies bequeathed by the decedent, John M. Deutsch, to Mildred Conderman and Frances Richardson, with costs to the appellant. All concurred, except WILLIAMS, J., who dissented in an opinion, in which MCLENNAN, P. J., concurred. WILLIAMS, J. (dissenting): The order modifying the original decree should be affirmed, with costs. This appeal involves the question whether the respondents were, within the provision of the Tax Law (Laws of 1896, chap. 908, § 221, as amd. by Laws of 1901, chap. 458), children to whom the decedent, for not less than ten years prior to his death, stood in the mutually acknowledged relation of a parent, such relationship commencing at or before their fifteenth birthdays respectively and being continuous for the ten years thereafter. The respondents were nieces of the decedent. Their mother died when they were FOURTH DEPARTMENT, JULY, 1905. [Vol. 107. three and seven years old respectively. The decedent and his wife were without children of their own, and after the death of their mother the respondents came to live with their uncle and aunt and remained with them until their respective marriages, more than ten years later. Whether they occupied the relationship referred to in the statute was a question of fact to be determined from the evidence given on the hearing. The surrogate by the order appealed from and the decree as modified determined this question in favor of the respondents. The evidence seems to establish this relationship quite satisfactorily and conclusively. If the relationship did not exist as to the respondents it would be difficult to conceive of a condition of things that would establish it. It is said the neighbors knew they were nieces of the decedent, that he said they were his nieces and that the respondents called him and his wife uncle and auntie. Well, those things were true, and if they had called each other father, mother and daughters they would continually have been saying what was untrue. They treated each other in every conceivable way as parents and children. During all the years they lived with decedent he and his wife cared for them as they would for their own children, providing at their own expense for their every want and comfort, furnishing them clothes and spending money and sending them to school. They were obedient to decedent and his wife, made them their advisers and confidants in childhood and young womanhood, asked their consent to their engagements and marriages and were married from decedent's home. They were treated by and treated decedent and his wife in every respect as if actually parents and children, the only difference apparently being that they recognized their real relationship instead of forgetting it or misrepresenting it. What more could they do to establish the relationship referred to in the statute? This case is distinguishable from Matter of Davis (98 App. Div. 546) in that the decedent there by the use he made of the infant's property clearly refused to acknowledge the relationship of parent. He used her own money for her support, maintenance and education, as he could not have done if the relationship of parent and child had existed. That case was decided by a closely divided court, and the presence of that fact in the case may well have influenced the majority in arriving at the conclusion they did. If the treatment of each other App. Div.] FOURTH DEPARTMENT, JULY, 1905. was such as would be found between parent and child it could hardly be said that the statute was not complied with merely because they told the truth instead of a lie when they called each other uncle and nieces instead of father and daughters. Chief Judge ANDREWS said, in Matter of Beach (154 N. Y. 242, 248), with reference to section 2 of the Transfer Tax Act (Laws of 1892, chap. 399), which contained substantially the same provision as is found in this statute: "The clause, we think, was intended to have a broader scope; to include, among others, those cases, not infrequent, where a person, without offspring, needing the care and affection of someone willing to assume the position of a child, takes, without formal adoption, a friend or relative into his household, standing to such person, in loco parentis, or as a parent, and receives in return filial attention and service." The evidence here discloses treatment of each other by decedent and his wife and the respondents and their daily lives in their home which speak plainer than mere words can of the relationship mutually acknowledged between them. Decedent spoke of them as his girls, and he treated them as such. He did not say they were his daughters when they were not. They treated him and his wife as they would have done a father and mother. designation of uncle and auntie truthfully instead were father and mother when they were not. proper case to apply the provision of the statute in question. There is no great public purpose to be served by giving the statute such They used the of saying they We think this a a restricted construction as to defeat the real intention of the Legislature. The surrogate was right in the final decision made by him, and the order appealed from should be affirmed. MCLENNAN, P. J., concurred. Order appealed from reversed, in so far as it modifies the order of July 21, 1903, by striking out the tax levied and assessed upon the legacies bequeathed by the decedent, John M. Deutsch, to Mildred Conderman and Frances Richardson, with costs to the appellant. FOURTH DEPARTMENT, JULY, 1905. [Vol. 107. HELEN M. HOWELL, Respondent, v. THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Appellant. Life insurance policy - proof that the notice, prescribed by section 92 of the Insurance Law, was mailed is essential to its forfeiture for non payment of premiumin the absence thereof the one-year limitation of an action thereon does not apply — what proof as to the mailing of such notice presents a question of fact for the jury. An insurance company claiming that a twenty-payment policy of life insurance issued by it had become forfeited and lapsed for the non-payment of a premium, must establish that the notice required by section 92 of the Insurance Law (Laws of 1892, chap. 690, as amd. by Laws of 1897, chap. 218) was mailed to the insured as provided in such section. The provision in said section 92 that an action on a forfeited policy must be instituted within one year from the date of the default, does not apply where the insurance company fails to prove the mailing of the statutory notice and thus to establish the fact of forfeiture - certainly where the policy fixes a limitation of two years and the insured dies within thirty-two days after the due date of the premium, for the non-payment of which the forfeiture is asserted. The premium on a twenty-payment life insurance policy became due November 29, 1902, and the insured died December 31, 1902, before such premium was paid. The insured resided at No. 8 Girton place, Rochester, N. Y., up to October 4, 1902, when he moved to No. 64 Barrington street, Rochester, N. Y., and by his direction all mail addressed to him at Girton place was delivered to him in Barrington street. The employee of the insurance company, who attended to the preparation and mailing of the premium notices, testified that about the seventeenth of October she prepared the statutory notice and addressed it to the insured at his Girton place residence. She testified that this particular notice had been prepared and mailed in conjunction with several hundred others and her recollection depended upon certain check marks made by her opposite the insured's name on a due sheet. The envelope containing the notice bore the return address of the insurance company's representative and it was not proved that the letter was not returned to such representative. The wife of the insured testified that during all the time when the letter might be expected to have reached the insured's home she received her husband's mail, and that during this period she saw no letter bearing the return address of the insurance company's representative. A person who, at the request of the insured's wife, took charge of the insured's papers after his death and examined them, testified that he did not find the notice in question. Held, that the question whether the statutory notice had been mailed to the insured was one of fact for the jury to determine. HISCOCK and STOVER, JJ., dissented upon grounds not discussed in the syllabus. FOURTH DEPARTMENT, JULY, 1905. App. Div.] APPEAL by the defendant, The John Hancock Mutual Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of January, 1905, upon the verdict of a jury, and also from an order entered in said clerk's office on the 11th day of January, 1905, denying the defendant's motion for a new trial made upon the minutes. William De Graff, for the appellant. Elbridge L. Adams, for the respondent. SPRING, J.: The plaintiff is the beneficiary named in a twenty-payment life insurance policy of $3,000 issued by the defendant, a Massachusetts life insurance corporation, November 29, 1901, upon the application of her husband, Charles F. Howell, who died December 31, 1902. The semi-annual premium fell due November 29, 1902, and was never paid. The thirty days of grace expired December twentyninth. The plaintiff claims that the local agent of the defendant extended the time of payment until after January first. The proof does not sustain this contention, for even if the agent possessed the power to extend the due date of the premium, which we doubt, the proof shows unmistakably the privilege granted was on the understanding that the insured took the chances of living until the extended time was passed and if he died in the meantime the policy was not enforcible. The trial court, therefore, erred in submitting this proposition to the jury. If this error were material, we would coincide with the minority of the court in granting a new trial. In our view of the case, however, the error was inconsequential for reasons which we will proceed to state. Section 92 of the Insurance Law (Laws of 1892, chap. 690, as amd. by Laws of 1897, chap. 218), which is entitled "No forfeiture of policy without notice," provides that no life insurance policy thereafter issued or renewed by any life insurance corporation doing business in this State and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, shall, for non-payment when due of any premium or any portion thereof, required by the terms of |