
    Bussing’s Executors v. The Union Mutual Life Insurance Company of Maine.
    In a life insurance policy the payment of premiums was to cease after ten years. The policy contained a provision that, after two or more of the annual premiums had been fully paid, the policy might be exchanged for a paid-up non-forfeiture policy, for an amount equal to the sum of one-tenth of the amount insured for each premium which had been so paid. A condition of the policy was that, if the amount of any annual premium should not be fully paid on the day and in the manner provided for, the policy should be “null and void and wholly forfeited” and that in case the policy became null and void, all payments which had been made thereon should be forfeited to the company. Held, That the right of the assured to exchange the policy for a paid-up non-forfeiture policy was limited to the time during which the policy was in force.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    On the 16th October, 1865, the defendant issued its policy of life-insurance, insuring the life of'William P. Van Deursen in the sum of $5,000, for the benefit of the said Nan Deursen, his executors, administrators, or assigns. 'The conditions of the policy so far as involved in this ae-tion are as follows :
    “ That whereas, ¥m, P. Van Deursen . . . has .applied to the Union Mutual Life Insurance Company, by his application dated October 10, 1865, for insurance on ■the life of ¥m. P. Van Deursen, . . ■ . and has also agreed to pay the sum of $251.26 on the 16th day of October, in every year, for ten consecutive years ; and now, the first payment of the before mentioned annual premiums having first been received by the company, . . . and in consideration of such payment having been so received and of the provisions herein for future payment of premiums, the said company do hereby insure thé life'of ¥m. P. Van Deursen, aforesaid, in the amount of $5,000, from the 16th day of October, 1865, at noon, for and during the whole continuance of his life; payments of premium to cease after ten years; and it is hereby understood and agreed that after two or more of said annual premiums have been fully paid, this policy may be exchanged for a paid-up non-forfeiture policy, for ■ an amount equal to the ■sum of one-tenth of that hereby insured for each and every premium which shall have been so paid — requiring no further payments of premiums, subject to no assessments, but •entitled to its apportionment of the profits of the company, made upon their table, No. 1, of regular whole-life rates. The said insurance to be, in either case, by either form of policy, for the sole and separate use of the said ¥m. P. Van Deursen,” etc. . . . “ Provided especially, and this policy is made and it is accepted- by the assured . . . upon the express condition that if the amount of any annual premium herein provided for, is not fully paid, with the interest due thereon, on the day and in the manner so provided for, then this policy shall be null and void and wholly forfeited.” . . . “And it is also a condition of this policy, accepted by the assured therein, that in case it becomes null and void, all payments made thereon, and all dividend credits accruing therefrom and remaining unpaid, shall be forfeited to the company; and no outstanding scrip certificate of any such credit shall entitle the holder thereof to any claim upon the company on account thereof.”
    “And in case of the termination of this policy, whether by forfeiture or otherwise, prior to the time of declaring any dividend of profits by said company, the holder thereof is not entitled to participate in such dividend.” . . . “ Said company shall have the right to set off any demand they shall have against said assured, his assigns or representative, arising incidentally to, or in connection with, this insurance against any claim for which this company shall be liable thereon. . . . “ Special agreement.— It is expressly understood and agreed, and this policy is accepted by the assured upon the condition that if, at any time, any note, check, or draft (other than the usual premium note for one-half of the annual premium) shall be given in payment or part payment of any premium then due or to become due for or on account of this policy, and such note, check, or draft shall not be paid according to the provisions thereof,-then this policy shall become immediately void, and the company be thereby released from all obligations under it.”
    In the margin of the policy, in a conspicuous place, and in display type, is printed the term “ non-forfeiture,” and on the back of the policy it is indorsed “Hate October 16, 1865, term of non-forfeiture.” The policy was countersigned and delivered by the agent of defendant at Cincinnati, and all the payments of premiums made on it were made at Cincinnati.
    In 1866, Van Heursen assigned the policy, with the assent of the company, to George H. Bussing. Eive yearly premiums were paid on the policy, as follows, viz :
    Cash. Note. Interest on note.
    1. 16 Oct., 1865..........$150 75 $100 51
    2. “ ' “ 1866........151 26 100 00 $6 OB
    
      S. “ “ 1867.......... 151 26 100 00 12 '03
    4. “ “ 1868.......... 151 26 100 00 18 03
    5. “ “ 1869.......... 151 26 100 00 24 03
    
      On the last date, what was termed a settlement was made, as follows, viz:
    r*H á JO o P4
    “ Union Mutual Life Insurance Company Settlement, October 16,1869.
    Annual premium........................$251 26
    Cash part of premium 60 per cent............. 151 26
    Interest on 4 notes................................. 24 03
    Extra premium on permit........................
    Total cash payment..............$175 29'
    40 per cent, note, part of this premium...$100 00
    Amount of notes now returned............ 400 51
    500 51
    Less present value of surplus to credit... 114 51
    Total new note..........$386 00”
    Thus the notes given in part payment of the first four premiums were surrendered to the maker, and a new note taken for the balance of $386, as per above statement.. The note taken for the $386 was as follow's, viz :
    gs -3 o m s iJ.2 w 8 P3 « <! a Sh O
    “$386.00. Cincinnati, October 16,1869.
    “Twelve months after date I promise to pay the-Union Mutual Life Insurance Company or order three-hundred and eighty-six dollars, with interest at six per cent, per annum, for value received.
    “ And it is an express condition of the acceptance of this note by the said company, in part payment of the annual premium for policy No. 15,154, which condition is fully agreed to by the promisor herein, that such acceptance shall in no wfise affect the condition in this policy respecting the forfeiture thereof, in case of the non-payment of any other portion of said aunhal premium.
    [Signed,] W. P. Van Deursen.”
    [Each policy must be settled separately. -No note will be accepted that includes the premium of more than one number.}
    
      No other or further premiums were paid on the policy, and on the 9th of October, 1876, William P. Van Deursen •died. Whereupon the assignee furnished the company with proofs of the death of the assured, and in due time made demand for $2,500, less the amount of outstanding premium notes and interest, as upon a paid-up policy.
    The company having refused to comply with such demands, the original action was brought to recover the .amount.
    Upon the foregoing state of fact, the court found for the ■defendant, and rendered judgment accordingly.
    The object of the present proceeding is to obtain the reversal of this judgment.
    
      C. D. Robinson, for plaintiffs in error,
    claimed that the failure to pay the sixth premium did not forfeit the policy .and all rights under it. Ins. Co. v. Stratham, 3 Otto, 30; Little v. Ins. Co., 5 Big. 129; Hull v. Ins. Co., 5 Big. 562; Symonds v. Ins. Co. (Minn.), 6 Ins. L. J. 605; Dutcher v. Ins. Co., 5 Big. 665 ; Fowkes v. Assurance Co., 3 Best & Smith, 917.
    
      Sayler § Sayler, for defendant in error,
    claimed that the policy was wholly forfeited, and cited Ins. Co. v. McMillan, 24 Ohio St. 67; Roberts v. Ins. Co., 1 Disney, 355.
   White, C. J.

We find no error in the judgment.

The controlling question in the ease is, whether the right •of the assured to exchange the policy for a paid-up non-forfeiture policy, is limited to the time during which the policy is in force.

The plaintiff bases his right to recover on the ground that the right is not thus limited. His position is that the right to make the exchange is absolute, and may be exercised as well after the policy has become forfeited as before •such forfeiture.

By the policy, the company, in consideration of the payment of the first premium and of the provisions in the policy for the future payment of premiums, insure the life of the assured in the amount of five thousand dollars, for and during the continuance of his life, the payment of premiums to cease aften ten years.

The provision in regard to the exchange is, that after two or more of the annual premiums have been fully paid, •the policy may be exchanged for a paid-up non-forfeiture policy, for an amount equal to the sum of one-tenth of the amount insured for each and every premium which shall have been so paid.

Following the foregoing provision of the policy is the condition, that if the amount of any annual premium herein provided for is not fully paid, with interest due •thereon, on the day and in the manner so provided for, then this policy shall be null and void and wholly forfeited.”

There is also a condition that in case the policy “becomes null and void, all payments made thereon, and all dividends and credits accruing therefrom and remaining unpaid, shall be forfeited to the company.”

A further condition is, that if any note, check, or draft (other than the usual premium note for one-half of the annual premium) shall be given in payment or part payment of any premium, and such note, cheek, or draft shall not be paid according to the provisions thereof, then the policy shall become immediately void, and the company be ■thereby released from all obligations under it.

It seems to us from these provisions, that the right of the policy-holders to make the exchange is required to be exercised during the life of the policy.

The object of the provision authorizing'the exchange •was to enable the policy-holder to exchange the conditional liability of the company on the existing policy for a policy •on which the liability would be unconditional, and thus relieve himself from the payment of future premiums.

It Avas not the intention of the parties, in the event of the policy becoming void on default in the payment of premiums, that it should still-remain good as a policy pro tanto, for the premiums which had been paid. No such intention is found in the terms of the policy. The stipulation is. merely for an exchange. Moreover, such an intention would be contrary to the express condition, that if the-policy became void, all payments which had been made-thereon should be forfeited to the company.

The term “ non-forfeiture,” printed on the margin of the-policy, and the indorsement on the back of the policy, can not vary the plain meaning of the terms of the contract; and no charge is made against the company of practicing any fraud or imposition in issuing the policy.

Leave refused. .  