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cies. Yet the court, in answer to the defendant's sixth point, said the point was affirmed, but if the jury believed that the policy was taken out by the husband without his wife's knowledge, and that she did not sign the application, the point was not affirmed. On the trial, the plaintiff swore that he took out the policy, that he signed his wife's name and his own to the application, that he paid all the premiums, and that he knew at the time that there was other insurance on her life. This man is now seeking to recover on the policy for himself. The insurance money, by the terms of the policy, was to be paid to him if living after his wife's death, so that he, and he alone, is the person claiming to recover on the policy, and yet in answer to the defendant's sixth point, the learned court below charged the jury that it refused to affirm the point if the policy was taken out by the husband without the knowledge of the wife, and if she did not sign the application. We are entirely unable to see what the wife's knowledge on this subject had to do with the case. The answer was false, it was made by the plaintiff, it was material beyond all question, and the court so held, and it most assuredly barred a recovery. We sustain the fourteenth assignment. In Com. etc. Ins. Co. v. Huntzinger, 98 Pa. St. 41, we held that an untrue answer as to the amount of other insurance prevented a recovery.

We think the seventh point of the defendant was answered with substantial correctness, and therefore do not sustain the fifteenth assignment.

While there was considerable contradictory testimony as to some of the matters involved in this controversy, there are some 645 as to which there was none. The third and fourteenth assignments are sustained upon undisputed testimony, principally that of the plaintiff himself, and they are fatal to any recovery. The same is true of the fifth and sixteenth assignments. There was undisputed testimony that the insured did have most serious ailments prior to the application, that she was attended by several different physicians during the two or three years prior to the date of the policy, and almost up to the time the policy was issued, that she was at least threatened with consumption, and that she was not in sound health at the time of the application. Her husband, the plaintiff, testified that she was under treatment at the hospital for six or eight weeks in the latter part of 1892 and early part of 1893, and that she made use of an inhaling apparatus after her return, in the use of which he assisted her. During this time she was attended by Dr. Cohen, a dis

tinguished specialist in throat and lung diseases, and this also is admitted by the plaintiff, proved by the testimony of Dr. Cohen and denied by nobody. On all these subjects the testimony is entirely undisputed, and the ailments for which she was treated were of the most serious and vital character. The answers upon these subjects were undoubtedly false, and we are therefore obliged to hold that the ninth assignment should be sustained and that a verdict should have been directed for the defendant as requested in the defendant's first point. It was distinctly proved by the testimony of Dr. Starr, and not at all contradicted, that he had rejected her application for insurance in another company, and that both she and Dr. Starr signed the certificate that she had been examined, and that Dr. Starr advised the company not to accept the risk because "by her own admissions she had been under treatment for lung disease for a year." This examination and certificate were made on January 31, 1894, and the policy in suit was made on June 28, 1894. Her husband, the plaintiff, admitted on the witness stand that he knew she had been rejected by an insurance company of Newark. As the answer to a part of the fifth clause of the application, which inquired if any other association had ever declined to insure her, was "No," it was thus established by undisputed testimony that the answer was absolutely false, and the question was most material.

Judgment reversed and judgment is now entered in favor of the defendant with costs.

INSURANCE-LIFE-REPRESENTATIONS AS TO HEALTHMATERIALITY.-Where one asserts that certain statements are true, and, if not true, that this fact shall avoid a policy of insurance, the question whether they are actually material is not important, as the parties have the right to make their truth the basis of the contract, but if the applicant merely averred that they were true to the best of his knowledge and belief, then the policy cannot be avoided on account of them, unless he did not know or believe them to be true: Cobb v. Covenant Mut. Ben. Assn., 153 Mass. 176, 25 Am. St. Rep. 619, and note. A policy of insurance is avoided by false answers of the insured as to his freedom from specific diseases without reference to their materiality as to the risk, as answers respecting specific ailments are warranties, whether material to the risk or not: Mutual Life Ins. Co. v. Simpson, 88 Tex. 833; 53 Am. St. Rep. 757, and note; as was held concerning an applicant's answers relative to hemorrhages and the extent of his use of intoxicating liquors: Sweeny v. Metropolitan Life Ins. Co., 19 R. I. 171; 61 Am. St. Rep. 751; Maine Ben. Assn. v. Parks, 81 Me. 79; 10 Am. St. Rep. 240. As to the distinction between representations and warranties, see monographic notes to Fowler v. Aetna Fire Ins. Co., 16 Am. Dec. 463-465; Continental Life Ins. Co. v. Rogers, 59 Am. Rep. 816-822.

INSURANCE-TAKEN OUT BY ONE PERSON UPON LIFE OF

ANOTHER.-A warranty in an application for insurance upon the life of a third person that the person sought to be insured is in good health, simply means that he is well to ordinary observation and in outward appearance: Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274; 44 Am. Rep. 372.

INDEX TO THE NOTES.

ACTIONS, when deemed commenced, 615.

ADVERSE POSSESSION as between parent and child, 297.
AGENCY, cosureties are not agents for each other to agree to an
extension of time, 684.

of one codebtor to bind another by a new contract, 684.
of one joint obligee to receive payment for another, 684.
ASSIGNMENT of the right to complain of a conspiracy, 29.
of the right to complain of a fraud, 29.

ASSISTANCE, writ of, when should issue, 357.

ATTORNEYS AT LAW, privileged communications, when cannot
refuse to disclose, 818.

BANKS, deposit, right of to apply to depositor's note or other in-
debtedness, 43.

forged checks, payment of liability of bank for, 753.
BEES, ownership in, 465.

CHARITABLE BEQUESTS, masses, bequests for, whether included
within, 121, 122.

CHARITABLE TRUSTS, public monument or statue, bequests for,
whether sustainable as, 121.

unincorporated societies, whether may be donees of, 565.

CHILDREN, adopted, rights of in the estates of their adopting
parents, 642.

COMPLAINT in suits for the reformation of contracts, 496, 497.
CONSIDERATION, consisting of an agreement made at the same
time as the contract, 197.

CONSTITUTIONAL LAW, class legislation, what not permissible,
791.

CONTEMPT OF COURT, legislature cannot destroy the power of
courts to punish, 99.

CONTRACTS, dependent and independent, covenants in, 196
reformation of, 481-522.

CORPORATIONS, directors, liability of to third persons for mis-
representations respecting solvency, 707.

de facto, members of cannot be held personally liable on con-
tracts, 88.

de facto, when exist, 89.

liability of members of defectively organized, 88. 89.

pleading, necessity of averring their corporate existence, 586.
AM. ST. REP., VOL. LXV.-57 (897)

CORPORATIONS, powers of, 29.

stockholders of defectively organized, whether may be held lia-
ble as partners, 89, 90.

ultra vires, contracts of, when are, 29.

COTENANCY, in mining property, liability of one cotenant to an-
other for minerals taken from, 768.

CRUELTY. See Divorce.

DAMAGES for a breach of contract, what may include, 699.
DEDICATION to public use, change of, when revests the property
in the donors, 632.

DEEDS, consideration, evidence respecting is admissible to prove
whether it was founded upon a gift or a purchase, 800, 801.
consideration, nominal, does not prevent a transaction from be
ing a gift, 799, 800.

consideration of cannot be disproved for the purpose of avoid-
ing, 798.

consideration, partly of love and affection and partly of some-
thing of pecuniary value, 798.

consideration, smallness of, does not prevent conveyance from
operating as if founded on a purchase, 799.

consideration, sufficient to make the grantee a purchaser for
value within the meaning of the recording laws, 799, 800.
consideration, sufficient to support, 798.

delivery of, what constitutes, 297.

of gift, what are, 798.

of married women, acknowledgments by, when insufficient, 511.
reformation of, by suits in equity, 506-509.

reformation of, evidence required to support, 511.

reformation of, for a mistake in a series of conveyances, 509.

reformation of, for fraud or mistake, 507.

reformation of, incorrect descriptions in, 508.

reformation of, mistakes which will justify, 511.

reformation of, negligence in not discovering mistake in a de-

scription of property whether precludes relief, 509.

reformation of sheriffs' deeds, 14.

reformation of tax deeds, 14.

reformation of to exclude property improperly included or to

include property improperly excluded, 510.

reformation of, when executed by married women, 509, 511, 512.
reformation of, when may be denied, 511.

DEFINITION of cruelty within the meaning of the law of di-
vorce, 69.

of duress, 85.

of gifts, 798.

of libel, 56.

of mayhem, 771.

of mistake of fact, 490.

of mistake of law, 490.

of mutual mistake, 490.

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