151 Ind. 89 | Ind. | 1898
The appellants, as the beneficiaries named in a life insurance policy issued on the life of John F. Forbes, sued the appellee thereon for $5,000, the amount of insurance expressed in the policy. The superior court overruled a demurrer for want of sufficient facts to the second and third paragraphs of defendant’s answer, severally, and sustained a like demurrer to the second and third paragraphs of the plaintiff’s reply. And thereupon the plaintiffs withdrew the first paragraph of their reply, the same being the general denial, and refused to amend or plead further, and the trial court rendered judgment upon such ruling that the plaintiffs take nothing by their
It is one of the conditions of the policy that it “shall not be valid or binding until the first premium is paid to the company or its authorized agent.”, Another is that it shall not be valid or binding on failure to pay “all premiums or notes given the company for premiums, * * * on or before the days upon which they become due.” The second paragraph of the answer avers that said policy of insurance was issued to said John P. Forbes on condition that the premium therefor, $232.5*0, payable annually, should be paid, the first premium being payable on delivery of said policy, and a like premium being payable on the 30th day of September of each year thereafter for a period of twenty years; that said first premium became due and payable on the 30th of September, 1893, and the same was not paid; that thereafter, on the 7th day of December, 1893, the said John F. Forbes executed and delivered to this defendant his two promissory notes, copies of which are set out, bearing date December 7th, 1893, one falling due three months after-date, and the other falling due six months after date, the one falling due three months after date calling for '$111.26, and the other $111.25, each bearing 8 per cent, interest, and which notes were so executed as evidence of the balance remaining unpaid of said premium due and payable on September 30, 1893. And the defendant avers that it is expressly stipulated and agreed in each of said notes that if the same be not paid at maturity, said policy, including all conditions therein for surrender or continuance as a paid up or term policy, should-, without notice to any party or parties interested therein, be null and void; that the note due-three months after date became due and payable on March 7, 1894-, and the other one became due and pay
There is much contention as to whether the giving of the notes was a waiver of the condition, but we need not and do not decide that question, if the other facts stated constitute a sufficient defense to the action. The other facts stated are, as before observed, the same as those alleged in the second paragraph. And those facts show that both premium notes matured before and remained unpaid at the time the assured died. This made the policy void according to its own terms. Appellants’ learned counsel contend that the title to the policy vested in appellants as the beneficiaries named therein at the time of its issue, and. cite authority to the effect that such interest could not be devested by any act of the assured without the assent of the beneficiaries. Those authorities have no application, because those were cases where the assured attempted to assign the policy without the knowledge or consent of the beneficiary, the same having been kept alive by a strict compliance with the terms of the contract of insurance. But the beneficiary takes his interest in the contract of insurance in strict accordance with the terms of such contract. He has and holds such interest and rights as the contract gives him, and no more. * While the assured cannot diminish or destroy those rights by any act of his without the consent of the beneficiary, neither can he diminish the rights nor enlarge the obliga
The second paragraph of the reply admits that the first premium was due on September 30, 1893, and that the whole of the same was not then paid in cash, but avers that on said date Forbes, the assured, paid to the company $10 on said premium, and executed his two promissory notes for the remainder of the premium, which were accepted by the defendant as payment of said premium; and that the conditions of said policy requiring the first premium to be paid in cash on the delivery of the policy was thereby waived by said company; that said notes became due on December 7, 1893, and were not paid by said Forbes; but by the consent of said company said notes were on said day renewed by said John F. Forbes executing to defendant his two certain renewal notes, which were accepted by said company as payment of said first notes given. Said notes read as follows: “$111.26. Huntington, W. Va., Dec. 7th, 1893. Three'
The third paragraph of the reply is substantially the same as the second, and hence neither paragraph states facts sufficient to avoid the answer. The trial court did not err in sustaining the demurrer to each of said replies. The judgment is affirmed.