*1 501 only of things specifically incorporated therein, things bnt of the incorporated in the annual or semi-annual settlements up that led such final settlement. To hold that annual settlements be col- laterally attacked after final settlement would undermine de- stroy the very' purpose for which final settlements Until are made. such final settlement is set proper proceeding, aside the annual open settlements are not to examination or correction. ex rel. [State Public Admr. v. Lankford, 55 Jones, Mo. State ex rel. v. 14 Mo. App. 595; Sheetz & Sheetz Mo. Kirtley, Therefore, the final Young, settlement made Rebecca administra- approved by trix binding, valid, Probate Court was final and conclusive, attack; and is not to collateral is true the same prior guardian, John annual made the deceased settlements Young, Young. of Mrs. What have said of the final settlement W. final notice, settlement of the suc- equally true except as to day 3rd Lucy, approved on the which was guardian, Mr. cessor objections exceptions court; being there December, 1935, by the necessarily follows that therefrom. appeal taken thereto holding, in view of this action, and maintain this cannot respondent raised. upon other issues pass unnecessary to accordingly the cause reversed and trial court is finding of the appellant. judgment be entered directions remanded J., concur. J., Smith, Allen, P. Life Respondent, Winkelmann, etc., v. Central States Herman Appellant. (2d) 101 S. W. Insurance Appeals. City December Court of Kansas *2 respondent. Walter H. P. Burch and for Laaif Jones, 'Rocker, Gladney Jr., appellant. & Hooker, Jones Lon for and deceased SPERRY, C. Plaintiff on bebalf of biniself and bis sued wife, principal policy, wbo in were beneficiaries insurance a life tbe of Ed- sum of life $1000, predecessor issued on tbe defendant’s Winkelmann, judgment $972.13 mund F. From a for plaintiff. son of for vexatious interest, attorney $350 on the fees policy, $83.10 and delay, $1405.23, duly prosecuted. appeal total of this 8, 1931, May were was issued policy

Tbe facts in evidence that tbe paid May 8th eacb or before premiums and were to Plaintiff thirty-one days grace thereafter. period of or within a the latter beneficiaries but wife, Johanna, were named as and bis tbe time suit of her at was executor estate plaintiff died bad and paid but tbe premiums were first two annual instituted. although tender paid, May 8, was never falling premium due bad 27, 1933, after tbe made on June payment passing accept without first refused Defendant expired. rein- investigation, refused to insurability insured, and, tbe physical him condition. of bis because policy following Tbe contained tbe clause: . any. premium “. . If or installment paid due, policy ipso shall be premiums null and void and all facto forfeited to except tbe provided.” otherwise policy Tbe bad following, attached it tbe which was intro- B: duced exhibit Disability “Waiver of Benefit. Premium —

“Supplemental forming part Policy contract attached No. 35316-N on the life F. Winkelmann —issued by Edmund Company.

“American National Assurance representations, agreements “In of the consideration statements and to, policy above application said’ referred which is contract, hereby part supplemental made a and in consideration delivery supplemental payment, on or con- of the payment .34, $of of the tract, premium of the thereafter of . required . . annual with each like amount anniversary nearest the sixtieth above referred Insured, the birthday of the (60) Assurance Company National

“American will, upon satisfactory that, before attaining age sixty (60) years, and while said policy and this contract are force, the Insured has bodily in- jury or disease, except as provided, hereinafter so that he thereby will be permanently continuously engage unable to any occupation perform work for profit, remuneration or that such disability has existed continuously not less than one year (such disability being permanent only of such duration deemed determining for-the commencement here- under) , waive under said falling the commencement disability, provided, of such the continuance im- however, six months that no which fell due more than Company of receipt mediately preceding at the home office waived. If notice claim shall be such total written began installment after the due date *3 grace provided day of later the last default, in not than thereof but any installment or of said policy for the the im- for not than continuously less existed thereof Company will claim, receipt the of notice mediately preceding the such, if default for herein the same as provided the benefits allow premium in- liable for the or Insured shall but the not occurred six rate of at the default, interest thereon with thereof stallment cent) paid.” (6 per per annum cent per ‘‘ Provisions. General “The Amount will of said not be any reduced hereunder. . . . waived Company the accept

“Should dis- proof of total and ability may, nevertheless, hereunder, thereafter, at any time may desire, as it often but not oftener than once a as such years following receipt has continued for two full the hereunder, proof notice of claim demand of the Insured such’disability physical shall be allowed to make a continuance respect Insured, disability, by to such a the examination physicians, designated by it. If In- persons or or other the physician if disability, or fail furnish of such shall to sured hereunder able engaged, Insured has or has become established that the it be if profit, for remuneration or or any occupation or work engage, examination or examina- to the shall refuse to submit Insured the deemed have provided for, then Insured shall be the tions disability. recovered such re- presented to and must be claim hereunder

“Written notice (a) Company during lifetime office ceived at home disability, of total other- the continuance (b) Insured and however, that invalid; failure provided, claim shall wise give if suck notice witbin such shall invalidate such claim times reasonably possible give shown that it was such „not shall given as times, within such such notice was soon notice reasonably possible. change, “No modification or waiver of the terms and conditions supplemental unless endorsed hereon contract shall be valid Company.” an executive officer of the osigned ‘‘ Discontinuance. at by the Insured be cancelled supplemental

“This Company and return of notice written any supplemental contract. auto- woman, contract shall

“If the Insured her event of matically null void terminate and become returned to premium hereon marriage unearned Insured. (a) automatically terminate contract will “This to, referred nearest policy, herein anniversary of the Insured (except if the (60) birthday, of the Insured sixtieth anniversary nearest provided upon the as hereinabove continue provided shall (60) birthday, the benefit herein the sixtieth (b) contract), or conditions of this to the terms force supplemental contractj policy or any premium on said when days thereafter, thirty-one (31) due, or within paid ivhen not be prior to- totally disabled becomes the Insured unless (e) ours), period (Italics such of on said loan charge against the value policy becomes (d) if said policy, or Loan benefit Premium Automatic paid-up term in force is continued policy be surrendered *4 shall provisions, non-forfeiture under its life insurance paid-up terminate. otherwise premiums payable

“No further under its cancellation or termination.” further evidence disclosed been in ill health that h'ad prior May 16, 1933, for some weeks and that date entered hospital operated he appendicitis gall where on for his blad- was discharged 16, der was drained. was was He 1933. he June While hospital causes, beginning the disabled these the he manic-depressive insanity disease, From of noted. latter was it, causes, and from other he died contributory never recovered 18, on November 1933. during disability ever insured’s

No claim or was made the notice defendant had of claim under lifetime and the first by plaintiff, dated December by letter written policy policy death know of the existence the until after not Plaintiff did January was filed Suit of insured. Defendant contends tbat it is not liable on the policy an because unpaid premium fell due before the commencement date of

claimed total permanent disability and remained arrears until grace the period, that such claimed total permanent disability did not year continue for a deceased; death of That the waiver of mentioned in B exhibit never took effect and could not take effect until such total disability had continued for one and since insured died within six months of the commencement of total dis- ability contingency upon the which actual cash due, waived, arose. would be never Plaintiff claims that since the disability began during grace the period of thirty-one days after the due-date and that insured died without having ever therefrom, recovered disability the was bound to have been without necessity waiting year in order to presumptive proof thereof; furnish disability nature of insured’s incapable transacting rendered him business, making contracts, knowing the effect his failure lapse pay premiums preventing and the waiver was for the consequent inability pre- policy caused illness mium; in a of this premium was not waived but that case that the policy if it deducted from amount kind it succeeding premiums disability, first paid for the He wholly waived. during will be continued due falling contract, third subdivision of claims that contingency arisen in that has italicised, covers the part thereof who policy holders class of gives protection to that case and grace expiration of a to the prior death ended whose thereof. subdivision in the first mentioned main forfeiture clauses general that, It is conceded 8,May nonpayment of the lapsed policy, long after the ever no tender 1933, since or not the whether to determine expired. It remains [Berg supplemental contract. terms force kept in Sov. Rep. Smith Sup. Ct. Co., Ins. Peoria Life holm v. c. 119, l. W., 179 Mo. Camp of W. of construing contract, if there it must borne mind that giving any ambiguity therein, any right contradiction thus us authority construe, adopted such construction must

exercise *5 insured, words chosen those as most favorable to because the are Assn., American by [Roseberry v. Benevolent selected insurer. 560; Landrigan Co., Missouri State Ins. App. 552, l. c. v. Life

Mo. 1042, c. (Mo.) l. 234 S. W. 1047.] policy; insurance not a sick and accident a life is a suit on This policy. an There is recognized essential difference between the law tbe two classes of cases, for, pre the latter, the failure mium, give a or to notice, happening occasioned very thing against. insured [Roseberry Assn., v. Amer. Benevolent supra; 325, notes; 15 A. R. England L. New Mut. Ins. Co. v. Life Reynolds, 1075, 1079, 59 A. L. R. l. c. also annotation.]

For discussing supplemental contract, refer to first, in three as subdivisions: “Waiver of Premiums —Dis- ability Benefits;” Provisions;” second, “General third, “Discontin- ’’ uance. provisions requiring as

We construe -the first subdivision permanently insured due-date of to be days before thirty-one premium some or at preced That a condition can be claimed. waiver concession disability must con Next, permanent, total ent. we hold that such That its cmy can waiver. claim tinue for one can no room meaning and such case there plain intent and we do not have benefit construction. While a different construed contracts as citations, we have considered similar Missouri Metropolitan v. jurisdictions. Himelbloom by courts of other [See Life 56; Avery N. Y. 52, l. c. v. 128 Neb. Life Insurance v. 443; State Ins. Co. Life (2d) 442, l. c. Missouri Ins. 67 Fed. Co., Ins. Co. 1024; & (Tenn.) W. S. Life W. Nidiffer, (2d), 79 S. Quinn, Ins. Co. v. N. Y. Life Smith, App. Rep. 197, l. c. 41 Ohio Alexander, Ins. Co. v. 903; N. Life (Miss.), Y. 902, l. c. 157 Southern 314, 122 Miss. 15 A. L. R. supra, very the Himelbloom the facts were similar

facts The 1932, here. was in force November 1, the next premium thirty- 7, 1932, due thereunder was due on November days grace. 1st, This paid. On was never November insured became disabled and so remained supple- until his three death months thereafter. defining mental attached, involved, similar to here the one total disability continuing period for a as said, page of six months. The court 56: “Liability contract to limited the insurance recovery right which the Plaintiff no to a paid. waived; insured’s payable unless the November grace expired. having The insur- death occurred after the anywhere contain contract shows on its face that does ance any premiums in the of total promise event unconditional to waive disability. waiver consideration therefor and the ‘Except conditions, phrases and clauses are limited provisions conditions ‘Under provided;’ hereinafter premium shall be waived.’ however, ‘Provided, stipulated;’ *6 promise followed a definition that what is a total meant is disability which continues for six limi- months. The (cid:127) tations and conditions as well as promise of a parts waiver are of the contract and import their true cannot disregarded. be While was in fact and permanently November 1932, and remained in that condition death, until his February 1933, he did not so remain for six within meaning months of the policy. There seem ambiguity inconsistency does not be such or require binding contract the insurance as to a construction insurer ” by a waiver premium. Plaintiff himself adopts the view that he cannot have relief provisions one, subdivision rights but that waiver such claims granted as are claimants; do not cover all possible classes that unprotected leaves policyholders might some who impossible disabled when it to file thereof would although disability arose at therein, such prescribed within the times for fully and continued paid was a time policyholders situ- unprotected year thereafter; leaves those expiration of before the died in this who ated as was insured plaintiff seeks disability. Therefore year of continued one that theory three, on the (b) of subdivision play paragraph call into contingencies presented such as are here to cover its officeis such suggested hypothetical cases. might arise in others in- to sell to of the whole right upon which fix terms right and to sured contains one, which in subdivision all done acquired. This was ever could right waiver terms, By its no granting clauses. sole therein precedent conditions happening of the except under the vest stated. relation governing the lays rules merely down two Subdivision vested. in subdivision rights mentioned after the parties subsequent would conditions They are in the nature Amer. (Roseberry cases governing of construction to rules con- before us is not subdivision supra); but this Assn., Benev. struction. con- anything. or grant sell seek does not three Subdivision It, predeces- its like granted. rights, are nothing. No additional veys and seeks granted been what has limitation of a nature is in the sor which happening upon the conditions only to establish held have Since conveyed cease. rights theretofore waiver, either right no that case naturally insured, vested thereof, had ever manner enlarged. continued, extended could such right follows fix condition intended obviously (b) Paragraph mentioned exception of waiver the contract termination protect insured,

therein of un- was intended to certainty when a total had arisen and the During permanency presumed. when its would be protected. he would be *7 might where suggested hypothetical many

There are cases ¥e not deal- might in this case. are the facts be different from those applied ing hypothetical case, facts and the recovery refuses to unless this court contract, preclude the federal weight authority as established follow logic prec- Neither nor contracts. passed on courts that have similar way answer permit of such a course. edent keep way the sure suggested cases that hypothetical the first force is to before due-date if occurred disability, especially pay- waiver, either as to only provided premium, first for the payment, to manner ment or as for one whole continued only after such effective force after remain in would the event its date. year expired. before the recover if insured should lapse sitting. Campbell, C., not judgment reversed. adopted Sperry,’C., opinion of foregoing PER CURIAM: The All concur. reversed. judgment is court. opinion as the Locomotive v. Brotherhood Respondent, Arnold, Ernest A. Appellant. (2d)W. S. Enginemen, Firemen January Appeals. City Court Kansas