The application to the basic question presented by the petition for certiorari of the considerations and decision set forth in the opinion of Mayfield, J., on rehearing, in Mutual Life Ins. Co. of N.Y. v. T. E. Lovejoy, Adm'r, 78 So. 299,
requires the conclusion that the judgment of the Court of Appeals, affirming the judgment of Montgomery circuit court, was laid in error. The writ of certiorari to the Court of Appeals is granted and, consistent with the ruling of this court in the Lovejoy Case, the order or judgment of affirmance entered by the Court of Appeals in the Weil Case is reversed and annulled.
Writ granted.
McCLELLAN, MAYFIELD, SAYRE, and THOMAS, JJ., concur. ANDERSON, C. J., and SOMERVILLE and GARDNER, JJ., dissent.
In the case of Mutual Life Ins. Co. v. Lovejoy. 78 So. 299
1 (present term), the writer has expressed his dissenting views. The holding of the majority in that case is considered as also controlling the question here involved. The views of the writer therein expressed are here referred to as expressive of his dissenting views in the instant case, with special reference to the cases of Northwestern Life Ins. Co. v. McCue,223 U.S. 234, 32 Sup. Ct. 220, 56 L.Ed. 419, 38 L.R.A. (N.S.) 57, and Burt v. Union Central Life Ins. Co., 187 U.S. 362,23 Sup. Ct. 139, 47 L.Ed. 216, as being here more directly in point.