Plaintiff is the mother of Edward M. Ross who died oji the 22nd of October 1917. On the 21st of July, 1907 defendant issued two policies of insurance on his life, each for the sum of $2500.00 payable to plаintiff. Deceased paid the, premiums due for ten years when he defaulted for thоse ■ due the 21st *244 o£ July, 1917, and they were unpaid at his death in the following October. Plaintiff, though deceased died in default, claimed the full amounts of the policies under the tеrms of section 6946, R. S. 1909, providing that after the payment of three annual premiums a lifе policy should not be forfeited for non payment of premiums falling due thereafter, but that the net value of the policy computed under mortality tables (under сonditions therein named), shall be taken as a net single premium for temporary insurаnce for the full amount of the policy. It is agreed that such premium would carry the policies beyond the death of deceased, if section 6946 controls.
Special provision is made by section 6949 of the statute for avoiding the benefiсial terms of section 6946, and defendant relies upon such provision for defense to the present action. The provision is that section 6946 shall not be apрlicable, “If the policy shall contain a provision # * *for the unconditional сommutation of the policy for non forfeitable paid up insurance.” The рolicies involved contained this entirely different provision; “If this policy shall lapse after being in force three full years, it will automatically become a paid up policy for such amount as is hereinafter set forth in the ‘Table of Surrender and Loan Values’ herein.”
It will be observed that the statute provides for an unconditional commutation of the policy for non forfeitable paid up insurance and that that character of insurance is not provided for in these policies, in that the provision found in them is nоt for unconditional commutation' for non forfeitable paid up insurance, but merely for a paid up policy.
Defendant insists that these provisions of the statute and of the policies аre, to alb intent and purpose, alike; and offered judgment for the amounts commuted as indicated by its policy provisions, less a loan which deceased had obtained. The trial court took defendant’s view and plaintiff appealеd.
*245 Defendant’s position and the facts we have disclosed forces it to clаim that a policy for “paid np insurance” is the same thing as a policy for аn inconditional commutation of a policy for non forfeitable paid up insurance ; that is, that paid up insurance is non forfeit-able insurance. We think the рosition wholly untenable.
The courts have maintained vigilant watch on life poliсies of insurance to see that the statutory provisions in avoidance of thе non forfeiture statute are fully complied with before the insurance company will be allowed to avail itself of such provisions; Smith v. Life Ins. Co.,
It seems to be too clear for doubt, that a simple provision that a policy will automaticаlly become paid up, is not the same, literally or in effect, as a provisiоn for an unconditional commutation into a non forfeit-able paid up policy; Whittaker v. Ins. Co.,
Defendant- repeats his claim that the expressions, paid uр insurance, and non forfeitable paid up insurance, “mean precisely the same thing, because paid up insurence is insurance that is fully paid for, i. e., non fоrfeitable. ” It is true that the supreme court said in Nichols v. Ins. Co.,
*246 The foregoing viеws result in a reversal of the judgment and remanding the cause with directions to enter judgment for plaintiff for the amount of the policies. We do not see any reason for assessment of penalties.