
    The Mutual Life Insurance Company of New York v. Brock.
    (Decided May 16, 1924.)
    Appeal from Jefferson Circuit Court (Chancery Branch, First Division).
    Insurance — Insurer Held Not Bound by Adapted Illustration in Policy as to Surplus. — In 20-year deferred dividend policy, an adapted illustration showing “former policy results” as to surplus held not to bind insurer to pay sucb shown surplus.
    WM. MARSHALL BULLITT, CHAS. S. GRUBBS, BRUCE & BULLITT and FREDERICK L. ALLEN for appellant.
    HOBSON & HOBSON and FORMAN & FORMAN for appellee.
   Opinion of the Court by

Drury, Commissioner

Reversing.

The appellee recovered of the appellant in the court below a judgment for $2,660.52, of which the appellant complains.

On March 15, 1897, the appellant issued to James E. Brock, then thirty-five 3rears old, two policies, by each of which it insured his life in the sum of $5,000.00. Appellee undertook on his part to pay an annual premium on each policy of $329.20 fop ten years. The policies were absolutely identical. Both were what are known as “twen-, ty-year deferred dividend policies.” Each policy provided for a settlement at the end of twenty years, at which time the appellee was given six different settlement propositions. These settlement propositions are contained in what are termed “adapted illustrations.” One of these is attached to each policy and they are absolutely identical. Therefore, only one need be copied into this-opinion, and omitting the heading’, which contains noth-. ing material to the issues in this case, this adapted illustration is as follows:

Principal Sum $5,000.00

Options at the end of 20 years.

At the end of twenty years, Brock decided to accept proposition “A,” whereupon the appellant paid him $3,766.00, the guaranteed reserve, and $939.74, which it said was the surplus, or a total of $4,705.74. The appellee demanded $6,036.00, that is, the appellee insisted that this $3,766.00 reserve should he paid him and that the surplus should be $2,270.00. The whole controversy is about this surplus. Appellee insists that there is $2,270.00 of surplus due him on each policy, while appellant insists that the surplus due on each policy was $939.74, a’ difference of $1,330.26, or upon both policies a difference of $2,-660.52.

The appellant paid to Brock the sum which it admitted it owed him, and Brock sued upon these two policies to recover this $2,660.52. He was successful in this suit. The lower court followed the ruling’ of this court in the case of Foreman v. Mutual Life Insurance Company, 173 Ky. 547, and held that the appellant was required under its contract to pay to Brock the ‘full amount of the surplus as stipulated in the adapted illustration. Since the decision of this case in the court below, this court has, in the case of Maddox v. Mutual Life Insurance Company, 193 Ky. 38, drawn a distinction between the adapted illustration in the Foreman case and the adapted illustration in the Maddox case. As the adapted illustration in this case is almost identical with the adapted illustration in the Maddox case, this judgment must be reversed for the reasons given in the Maddox case.  