178 Mass. 575 | Mass. | 1901
This is an action at law upon a policy of insurance issued to the plaintiff and subsequently surrendered by her husband without her knowledge, he taking a new policy payable to himself. The proceeding is not a bill in equity and is not brought for the purpose of enforcing a trust in the second contract. See Nesbitt v. Berridge, 10 Jur. (N. S.) 53; Barry v. Brune, 71 N. Y. 261; Chapin v. Fellowes, 36 Conn. 132; Lemon v. Phœnix Ins. Co. 38 Conn. 294, 302; Matlack v. Seventh National Bank, 180 Penn. St. 360. It must be taken to assume the first to be in force and to refer to the second, to which the plaintiff is a stranger, simply for the purpose of seeking to have the payments of premiums under it treated as payments upon the first and as enuring to the benefit of the plaintiff. This cannot be done. No doubt the attempt to substitute a new contract for the old one was void, but the plaintiff cannot give the payments under it a new character by attempting to ratify or adopt them. She cannot affirm or adopt them except as they were made, and they were made upon a contract to which, as we have said, she was a stranger.
The question whether the plaintiff is entitled to judgment for the surrender value allowed by the terms of the policy when premiums have been paid .for more than two years, was not argued, and we leave it for decision in the Superior Court.
Judgment reversed ; case to stand for further hearing.