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held that it may be waived by parol by any representative of the company who has in fact sufficient authority. Lately this was decided by the Second Department of the Supreme Court of New York upon a construction of this identical clause.1

The practical result in New York amounts very much to this, that as to the ordinary commissioned or so-called general agents of fire companies, the policy restriction or stipulation is generally conclusive evidence of their limited powers after it is received, so far as effecting waivers is concerned, inasmuch as in most cases the insured is unable to produce any testimony which will avail to establish a broader authority than that defined by the policy. But in the absence of special action by the directors, the officers of the company are held to have the same authority, to control and vary their contracts, which they possessed before a standard form of policy was filed in Albany by the committee of the New York Board of Fire Underwriters.2 a

This clause is omitted from the Massachusetts policy, but it must be remembered that the Massachusetts courts have shown much less indulgence to the insured in the application of the doctrine of waiver and estoppel as regards proceedings whether antecedent or subsequent to the inception of the contract.3

1 Baldwin v. Citizens Ins. Co., 60 Hun, 389 (1891), by Barnard, P. J. See also Baumgartel v. Prov. Wash. Ins. Co., 61 Hun, 118 (1891).

Baldwin v. Citizens Ins. Co., 60 Hun. 389. Steen v. Niagara Fire Ins. Co., 89 N. Y. 315; s. c., 42 Am. Rep.

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Bishop v. Agricultural Ins. Co., 180 N. Y. 488. Berry v. American Central Ins. Co., 132 N. Y. 49. Quinlan v. Providence Washington Ins. Co., 133 N. Y. 356 (1892).

CHAPTER XVI.

LIFE INSURANCE POLICY.

In life insurance there is no standard form of policy, and the different companies use forms which vary considerably, and ́ which are more or less favorable to the insured, as the case may be.

The Equitable of New York has adopted a very short form of policy, which, after providing for the payment of premium, promises to pay the insurance moneys upon satisfactory proof of death, and recites that the application is made a part of the contract. At the foot it gives notice that no person except one of the executive officers is authorized to make, alter, or discharge contracts or waive forfeiture, and on the back it contains a list of privileges to the insured.

A fair and convenient specimen for examination in detail is the policy of the Mutual Benefit Life Insurance Company of New Jersey, the principal clauses of which will require our consideration in this chapter, although it may be premised that the general principles which govern the fire policy are also applicable to the life policy.

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§ 171. The Beneficiary.-Payable to A. B., or to his executors, administrators, or assigns.

A policy in this form is the property of the assured, is subject to the claims of his creditors, and upon his death is collectible by his executors or administrators like any other personal assets of his estate, unless he has previously assigned the policy; but oftentimes the policy is made payable to other beneficiaries, and frequently they are designated by such indefinite terms that it is not easy to determine to whom the description is intended to be applicable.2 In such a case the 1 Bishop v. Grand Lodge, 112 N. Y. 2 Walsh v. M. L. Ins. Co., 133 N. Y. 627 (1889). 408 (1892).

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words are liberally construed, and parol evidence is freely received to arrive at the real meaning of the insured.1 In the case last cited in which the policy was made payable to the "legal representatives" of the insured, the court refused to allow the proceeds to fall into the general assets of the estate for the benefit of creditors, and held that the insured intended to designate his wife and children. And in another case it was held that the phrase "lawful heirs" was used in a colloquial sense and might include the widow. In case of a policy to "my wife Mary and children," a child by a former wife is a beneficiary. To "be paid to his wife M. K. and children," means to his children by this wife or others, not M. K.'s children. If the policy is payable to wife and children, they all divide the proceeds equally and not in accordance with the statute of distributions.5 Children born after the contract are included, unless the children are specifically named. Any one of those named as beneficiaries may assign his expectant interest, and the assignee will take the right to which he was entitled. In order to effectuate the apparent intent of the insured, "child" was held to mean an adopted child. "Children" does not mean A designation of beneficiaries can be made only in accordance with the charter and by-laws of the company, so far as they may govern the subject." So, also, any change of appointment must conform to the regulations of the company; but here, too, the court will, so far as possible, give effect to the intention of the parties, and will consider an attempted change of beneficiary complete without undue regard to technicalities." The change of appointment may be sustained without the issuance of the certificate of insurance.12 Although the designation of beneficiary may be

grand-children."

1 Griswold v. Sawyer, 125 N. Y. 411. 2 Hannigan v. Ingraham, 55 Hun, 257.

Martin v. Etna Life Ins. Co., 73

Me. 25.

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U. S. Trust Co. v. Mut. Ben. Life

McDermott v. Centennial Mut. Ins. Co., 115 N. Y. 152. Life Asso., 24 Mo. App. 73.

10 Sanger v. Rothschild, 123 N. Y.

Koehler v. Centennial Mut. Life 577. Marsh v. Amer. Legion of Ins. Co., 66 Iowa, 325.

'Jackman v. Nelson, 147 Mass. 300. Thomas v. Leake, 67 Texas, 469.

7 Conn. Mut. Life Ins. Co. v. Baldwin, 15 R. I. 106.

Honor, 149 Mass. 515. Britton v.
Royal Arcanum, 46 N. J. Eq. 102.

11 Luhrs v. Luhrs, 123 N. Y. 367.
12 Bishop v. Grand Lodge, 112 N. Y.
627.

irregular, or may altogether fail, the court will enforce the contract if possible and not allow it to fall.1 Statutory provisions permitting the insured to make a new appointment are not applicable where the interest of the first-named beneficiary has become vested for value paid.2

§ 172. Application Incorporated.—In consideration of the statements in the application made a part of this contract,

etc.

This form of words incorporates the representations of the application into the contract and makes them express warranties.3

If the alleged warranty were contained in the application alone, and that were not expressly made a part of the contract, it would simply amount to a representation, inasmuch as the policy would in that case supersede it.

§ 173. Statements as to Health or Freedom from Disease. Health is a relative term, for probably no one is altogether free from ailments. To violate a warranty of good health it must appear that the sickness was one having a tendency to shorten life or permanently impair the health; in fact, that it amounted to a vice in the constitution.*

In answer to the question, "Have you ever had any difficulty with your head or brain?" the applicant said "No;" and the court decided that the question called for a functional or organic derangement, and that periodic headaches though severe did not constitute a ground for forfeiture."

Good health is consistent with a touch of dyspepsia and with a mere cold."

A congestion or disorder of the liver is not necessarily a disease of the liver within the meaning of the policy; and in

1 Addison v. New Eng. Comml. Travellers' Assoc., 144 Mass. 591.

Smith v. National Ben. Soc., 123

N. Y. 292; 36 Am. Rep. 617. Bancroft v. Home Ben. Asso., 120 N. Y. 14.

'Higbie v. Guardian Mut. Life Ins.

N. Y. 85.
'Cushman v. U. S. Life Ins. Co., 63 Co., 53 N. Y. 603.
N. Y. 404.

'Peacock v. New York Life Ins. Co., 20 N. Y. 293. Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274; s. c., 80

Morrison v. Wis. Odd Fellows Mut. Life Ins. Co., 59 Wis. 162.

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Metrop. Life Ins. Co. v. McTague, 49 N. J. Law, 587.

these and similar cases, if the testimony leaves it in doubt whether the disorder is a slight attack or a permanent or serious disease, the question is for the jury.1

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So in a case of pharyngitis, gastritis, bronchitis, Bright's disease, consumption, gout; and the jury must determine whether a slight attack of pneumonia or sunstroke is a disease; but in one case an attack of vertigo was so slight that the court refused to send the issue to the jury."

The fact that the applicant was afflicted with dyspepsia six months or more before the application was signed did not make untrue his statement that he was not subject to dyspepsia at the time of the policy.10

Where the testimony is undisputed that the applicant was affected with a certain disease or disorder-as, for example, rupture or tonsilitis-his statement to the contrary in the application is a breach of warranty, and it would be error to submit the question to the jury."

If the warranty is that the assured has not had spitting of blood, and the testimony shows that this statement is not true, there is no question for the jury.12

The insured said in her application that she was in sound health. She died of phthisis nine months after the policy was issued, and was sick three years before her death. Held error in refusing to instruct for the company.13

The answer never sick," made by a German unfamiliar with our language, was construed to mean that he had never

1 Cushman v. U. S. Life Ins. Co., 70 Co., v. Trefz, 104 U. S. 197. Moulor N. Y. 72. v. Ins. Co., 101 U. S. 708. Conn.

2 Mutual Ben. Life Ins. Co. v. Wise, Mutual Life Ins. Co. v. Union Trust 34 Md. 582.

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Co., 112 U. S. 250.

"Mutual Benefit Life Ins. Co. v. Daviess, 87 Ky. 541.

10 World Mut. Life Ins. Co. v. Schultz, 73 Ill. 586.

11 Glutting v. Metropolitan Life, 50 N. J. L. 287. Etna Life Ins. Co. v.

"Vose v. Eagle Life & Health Ins. France, 91 U. S. 510. Pratt v. DwellCo., 6 Cush. 42.

7 Fowkes v. Manchester & L. Life Ins. Co., 3 Fost. & F. 440.

Boos v. World Mutual Life Ins. Co., 64 N. Y. 236. Knickerbocker Life Ins.

ing House Mut. Ins. Co., 53 Hun, 103. 12 Smith v. Etna Life Ins. Co., 49 N. Y. 211.

13 Metropolitan Life Ins. Co. v. Dempsey, 72 Md. 288.

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