173 A. 751 | Pa. Super. Ct. | 1934
Submitted April 13, 1934. This appeal is from a judgment obtained in an action of assumpsit to recover on a life insurance policy.
On February 18, 1924, the defendant company issued a policy to Arthur Snyder, wherein his mother, the plaintiff, was named beneficiary. Under plaintiff's testimony, the insured disappeared from his home on *200 the first day of March, 1924, and since then has been absent and unheard of, although a diligent search was made in an endeavor to locate him. The plaintiff paid the premiums for seven years, then sued defendant.
The appellant alleges (1) that no proof of death was furnished; (2) that there was no legal presumption of death as the insured had been arrested for nonsupport; (3) that the court erred in admitting in evidence a decree of the orphans' court establishing the legal presumption of death and authorizing the issuance of letters of administration upon his estate.
1. The policy provided for the payment of the amount of the insurance "upon receipt of satisfactory proof of death of the insured, made in the manner, to the extent and upon blanks as required by the company, together with the surrender of this policy and receipt books." On November 25, 1931, the attorney for plaintiff wrote a letter to the defendant requesting blank forms on which to make out formal proof of death. This letter was acknowledged and an extension of time requested, as an investigation which was being made had not been completed, and the defendant stated it was not in a position to furnish forms at that time, but promised that they would be provided after completion of the investigation, if the company deemed it advisable. No forms were furnished and no further communication was received from defendant. The plaintiff's action can be interpreted in no other way but an attempt to comply with the requirements of the policy, which was defeated by the defendant's failure to comply with her request. The plaintiff was required to do nothing further. The defendant's action can be construed only as a waiver of that condition in the policy which appellant is now invoking. It has been held frequently that where a company lulls the vigilance of the insured to inactivity, in so far as the furnishing of proofs of death is concerned, *201 one may reasonably reach the conclusion that they will not be required. In such circumstances, the company is not permitted to set up failure to furnish proofs to defeat a recovery on a policy.
2. The insured was arrested upon information of his wife, sworn to February 22, 1922, charging non-support. He gave bail for his appearance at the April term of court. No further proceedings were had, notwithstanding he remained living with his mother for a period of twenty-two months thereafter. It can not be said, therefore, that there was an existing pending action at the time of his disappearance; nor was any other motive alleged for him to flee or to conceal his whereabouts. This evidence offered by defendant was not sufficient to rebut fairly the inference of presumption of death after an absence of seven years.
3. There remains for consideration the admissibility of the orphans' court decree. In referring to its competency, we said in Volmer v. J. Hancock M.L.I. Co.,
In referring to the original paper books in the case of Robbin v. Knights of the Maccabees,
In Francis v. Francis et al.,
Although the decree of the orphans' court may be rebutted unless successfully attacked the presumption continues to be perfectly good. The legislature has given authority to the register of wills to grant letters of administration to estates of decedents. His action, as is the orphans' court decree, is prima facie evidence of the death, but the granting of letters and the right of the decedent's personal representative to bring suit or to be substituted as a party in a pending litigation are null and void if the person supposed to be dead is thereafter proven to be alive.
We are of the opinion, therefore, that the decree of the orphans' court, under the Act of 1917, supra, had a probative value, and was properly admitted in evidence.
No proof was offered by defendant in opposition to plaintiff's convincing evidence, except, as above noted, the arrest of the insured for nonsupport, which was insufficient. The defendant failed to assume the duty of producing, either by argument or evidence, a defense *204 to operate successfully against the presumption of death.
Judgment is affirmed.