Stewart v. Union Mutual Life Ins. Co. (N. Y. S. C.), 43 New York State Reporter (April, 1892), p. 805; 17 New York Supplement (March 24, 1892), p. 886.

Policy Premium Note-Forfeiture. The policy provided that it should be void if the insured should give a note for the premium and such note should not be paid at maturity, and that all payments made thereon should be forfeited. The insured gave a note for the premium, which was not paid at maturity. The note was several times renewed; and the insured at the time the last renewal came due requested the company to give him terms upon which it would cancel the policy and note. The company answered that it was unreasonable in the insured to desire to cancel his policy, and refuse to pay the note in full. The insured died without having paid the note. Held, that the policy was voidable upon default being made in the payment of the note, but only at the election of the company; that, upon the evidence, the defendants had elected not to forfeit it, but to continue it, and had treated it as subsisting up to the time of the death, and the company was liable.

McGeachie v. North American Life Assur. Co. (Ont. H. C. of J.—Q. B. Div.), 12 Canadian Law Journal (May, 1892), p. 220.

Policy-Beneficiaries.-The policy on the life of a husband provided for payment to the wife "if living, in conformity with the statute, and if not living, to her children and their guardian," etc. Bessie, a daughter, died intestate, leaving a husband and children; then the wife died; then Solomon, a son, died, leaving a widow and children, and then the insured died, leaving Carrie, a daughter, alone surviving. Held, that upon the death of the wife, her children living at that time became vested with every right to and interest in the policy to the exclusion of the representatives of the child who died before the mother.

Walsh v. Mutual Life Ins. Co. (N. Y. C. A.), 45 New York State Reporter (June, 1892), p. 123; 31 Northeastern Reporter (June 24, 1892), p. 228.

Premiums Paid with Stolen Money-Right in Proceeds of Policy. Where a deceased partner misappropriated partnership moneys, which he applied partly in payment of premiums on life insurance procured by him for his wife's benefit, the surviving partner may, in an action for money had and received, recover such premiums from the widow as money wrongfully applied to her use, but he can not recover the proceeds of the policies, or impress them with a trust.

Same-Same.-Premiums paid by such partner on his life insurance, and charged in the ordinary course of business to his overdraft account in the firm's books, are not recoverable from the widow by the surviving partner.

Same--Same-Embezzlement by Partner.-Partnership moneys, misappropriated by a partner to his own use, or fraudulently misapplied by him, are not moneys "stolen" or "embezzled" by him.

Holmes v. Gilman (N. Y. S. C.), 19 New York Supplement (June 16, 1892), p. 151; 46 New York State Reporter, 110.

Beneficiaries--Distribution.--The fact that a life insurance policy names the widow and children of the insured as the beneficiaries, without fixing the share of each, does not indicate that the money is to be divided equally per capita; but the statutory rule under which the widow is entitled to one third of the personalty of the husband, and the children to the remaining two-thirds, prevails.

Kelly v. Ball et al. (Ky. C. A.), 19 Southwestern Reporter (June 13, 1892), p. 581.

Insurable Interest-Evidence.-In an action to recover the amount of a policy of insurance upon the life of a child, the plaintiff's stepsister, evidence was given of a promise made by plaintiff to the mother of the child to take care of the child and help maintain it. No objection was taken on behalf of defendants that the plaintiff had not in fact incurred any expenditure in respect of the child. Held, that the plaintiff had an insurable interest in the child's life, and was entitled in the absence of any objection as to the amount actually expended by her, to recover the amount of the policy.

Barnes v. London, Edinburgh and Glasgow Life Ins. Co. (Eng. C. A. Q. B. Div.), 1 Queen's Bench Division,-Law Reports (June 1, 1892), p. 864.

Payment of Premium-Forfeiture-Waiver.-The testimony given showed that out of 21 payments made 18 were received subsequent to the date when actually due by the terms of the policy. Held, from such evidence it could be legally inferred that the defendant, by its course of dealing with insured, by accepting payment of premiums long after they became due under the terms of the policy, led him to believe that prompt payment of premiums was unnecessary, and that the same might be paid within a reasonable time after they became payable without forfeiture of the policy.

Same--Same-Same.-Where a life insurance company receives from the assured payment of an installment of premium while a subsequent installment remains overdue, it waives the right to claim a forfeiture on the ground that such subsequent installment was not paid on the day it became due, in accordance with a condition of the policy that it should become void if any installment should not be paid on the day when payable.

Pleading-Complaint-Evidence of Waiver.-An allegation in a complaint that insured "complied with all the terms of said agreement so far as the same were to be complied with by him," is not equivalent to alleging that deceased "duly performed all the terms and conditions of the policy," so as to render inadmissible under the complaint evidence that the defendant waived the condition in the policy that it should be

come forfeited if deceased should fail to pay any installment of the premium the day when payable.

De Frece v. National Life Ins. Co. (N. Y. S. C.), 19 New York Supplement (June 16, 1892), p. 8; 24 Chicago Legal News, 389; 46 New York State Reporter, 479.

Assignment by Beneficiary.-As provided by a policy of insurance the sum due thereon at insured's death was paid by the company to a trustee therein named for the benefit of insured's daughters. One of these daughters had entered a home for incurables, and, in consideration of care and support for life, assigned to such home "all moneys, rights, credits and effects now belonging to me, or to which I am in any way entitled,” and agreed to assign any other property which she might receive or become entitled to. She died before her father. Held, that the home was entitled to such daughter's share in the hands of the trustee.

Hewlett et al. v. Home for Incurables of Baltimore City (Md. C. A.), 24 Atlantic Reporter (June 29, 1892), p. 324.

Statute Physician as Witness.-Code Civ. Proc. ¿ 834, declaring that a physician shall not be allowed to disclose as a witness "any information that he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity," does not prohibit a physician from testifying that he attended a person in a professional capacity, and that the patient was sick, or from giving the number of times and the dates when the patient applied to him, and the places where he attended him, for the purpose of showing that the patient was not in good health at a certain time.

Waiver of Error-Practice.-After the physician had been excluded as witness, the plaintiff attempted to prove the same facts by other witnesses, but failed. Held, that the attempt to prove the fact of sickness of insured by other witnesses did not waive the error committed by the court in excluding the physician's testimony.

Patten v. United Life and Acc. Ass'n (N. Y. C. A.), 31 Northeastern Reporter (July 1, 1892), p. 342; 45 New York State Reporter (July, 1892), p. 661; 21 Insurance Law Journal, 678.

Endowment Policy-Wife as Beneficiary-Rights of Creditors. -While ordinarily a policy of life insurance payable to the wife upon the death of her husband is not subject to be applied in payment of his debts, yet where the policy is in the form of an endowment, a certain sum to be repaid after a specified number of years, the transaction is in the nature of a loan, the insurance being a mere incident; and, where the premiums have been paid by an insolvent debtor, the insurance money on such policy received by the wife during the life-time of the husband is not transmuted so as to be hers as against the creditors of the husband, but is subject to their claims.

Talcott v. Fields et al. (Neb. S. C.), 52 Northwestern Reporter (July 2, 1892), p. 400; 46 Albany Law Journal (July 23, 1892), p. 63.

Application-Warranty-Habits.-The representations of the insured in his application for life insurance, that he was a man of temperate habits, and had not taken a drink for over a year, was material to the risk, and amounted to a warranty.

Same-Same-Same.-A warranty that insured is of sober habits and temperate, means not only at the time of the application for insurance, but for such a reasonable time prior thereto as would allow one to form a habit.

Mutual Life Ins. Co. v. Gividen (Ky. Superior Ct.), 13 Kentucky Law Reporter (June 15, 1892), p. 970. (Not reported in full.)

Policy-Notice of Premiums-Statute.-The policy, after providing for insurance for one year, proceeded: "And the said society promises and agrees to renew and extend this insurance each successive year from the date thereof, upon condition that the assured shall pay" certain "mortuary premiums and the annual expense charge," etc. Held, that the insurance was for life provided that the assured paid premiums as agreed, differing only in form from the customary contract of life insurance, and was subject to Laws New York, 1877, c. 321, providing for service of notice "stating when the premium will fall due, and that, if not paid, the policy, and all payments thereon, will become forfeited and void."

Same-Same-Same.-The notice mailed by the society was as follows: "In order to continue and extend the insurance, it will be necessary that the premiums required for that purpose should be paid on or before the date above mentioned, as stipulated in the policy contract. This notice is given to meet the requirement of the New York law.” Held, that the notice was insufficient in not stating that "if not paid, the policy, and all payments thereon, will become forfeited and void," such being the language of the statute.

McDougall et al. v. Provident Saving Life Assur. Soc. of New York (N. Y. S. C.), 19 New York Supplement (July 21, 1892), p. 481.

Policy-Beneficiary-Parol Evidence.-Where a policy of life insurance provides that the money shall be paid to the insured himself if he live to a certain date, and if he die before that time to a certain person, trustee for the insured's mother, it is competent to show by parol that the insured stated in his lifetime that his design in creating the trust was to provide for his mother's support after his death.

Death of Beneficiary-Resulting Trust.-Where the mother dies before the insured, there is a resulting trust in his favor, and the proceeds of the policy are a part of his estate.

Bancroft v. Russell (Mass. S. J. C.), 31 Northeastern Reporter (July 29, 1892), p. 710.

Foreign Company-Service of Process-Statute.-The appointment of the state superintendent of insurance as the attorney of a nonresident insurance company for the purpose of receiving service of process, as required by Laws N. Y. 1884, c. 346, 2 1, does not authorize him to accept service by mail, and such service is void.

Same-Same-Waiver.-The removal of a cause by defendant, after specially appearing in a state court for the purpose of objecting to the sufficiency of service, does not constitute such a general appearance as will prevent the federal court from setting aside the service as illegal and void.

Farmer v. National Life Ass'n (U. S. C. C.), 50 Federal Reporter (July 26, 1892), p. 829.

Surrender of Policy by Guardian-Acquiescence by Ward.— Where a husband assigns an endowment insurance policy to his wife and children, and the wife dies, leaving her share to the children, and naming her husband as executor, and guardian of the estate of the children, and the husband having obtained letters testamentary, but not letters of guardianship, surrenders the policy to the underwriter for its present value, receipting as executor and guardian, mere acquiescence on the part of one of the children, after becoming of age, without receiving the fruits of the act, will not constitute a ratification by such child, so as to estop him to maintain an action against the underwriter to have the surrender adjudged void.

Same-Same.-The fact that such child instituted proceedings to compel his father to account as guardian does not constitute a ratification of the father's acts, when the suit was dismissed on the ground that the latter was not guardian.

Same Same Counter-Claim.-Since the father was legally obliged to support his children, and able to do so, the underwriter was not equitably entitled to counter-claim any expenditures by the father for the benefit of the children. Wuesthoof v. Insurance Co., 14 N. E. Rep. 811, 107 N. Y. 587, distinguished.

Foley et al. v. Mutual Life Ins. Co. (N. Y. S. C.), 18 New Y Supplement (May 19, 1892), p. 615; 45 New York State Reporter (July, 1892), p. 918.

Recovery of Premiums--Evidence.—Plaintiff, being canvassed for life insurance by defendant's agent, took out policies on the life of her sister and brother, payable to herself, having signed their names to the application with the knowledge of the agent. After several years she ascertained that the policies were void on that account, and brought an