
    Margaret Egan and Catherine Egan, Jr., Infants, by Matthew Egan and Catherine Egan, Guardians, Respondents, v. The Supreme Council, Catholic Benevolent Legion, Appellant.
    
      Insurance—a declaration that statements are true to the best of the applicant sknowledge and belief does not constitute a warranty.
    
    A statement contained in an application for insurance by which the.applicant declares upon his honor “that the statements that I have made or shall make herein, and subscribed to, are each and every one of them true to the best of my knowledge and belief. * * * I do hereby consent and agree that any untrue or fraudulent statement made above, or to the medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from, or voluntarily severing my connection with this Legion, shall forfeit the rights of myself and my family or dependents to all benefits and privileges therein,” does not constitute a warranty of the truthfulness of the representations contained therein; and, where the applicant has not been guilty of any fraud, representations as to his age made by the applicant according to the best of his knowledge and belief, and believed by him to be true, although in fact false, do not constitute a defense to a claim for the amount of the policy.
    Appeal by the defendant, The Supreme Council, Catholic Benevolent Legion, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 6th day of April, 1898, upon the verdict of á jury, rendered by direction of the court for the amount of a policy of insurance, issued by the defendant upon the life of Michael Egan, deceased.
    
      John 0. McGuire, for the appellant.
    
      Edward Herrmann for the respondents.
   Woodward, J.:

Michael Egan, on the loth day of July, 1896, made an application for insurance to the defendant. This application, in so far as it is necessary for this decision, is as follows:

“ Having become acquainted with the objects of your Legion, I hereby- make application for 2d Grade membership in your Council, and do declare; upon my honor, that the. statements that I have made or shall make herein, and subscribed to, are each and every one of them true to the best of my knowledge and belief. * * * I reside at Perth Amboy, State of New Jersey. I was born on the-day of June, 1855, am between twenty-nine and thirty years of age. * * * I do hereby consent and agree that any untrue or fraudulent statement made above, or to the medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from, or voluntarily severing my connection with this Legion, shall forfeit the rights of myself and my family or dependents, to all benefits and privileges therein.”

In making proofs of the death of Michael Egan, the physician who last attended him states that his apparent age was between forty-five and fifty years, and the defendant introduced evidence tending to show that the deceased was from three to four years older than he represented himself at the time of. making his application for this insurance. The rates of insurance in the defendant organization are based upon age, and the defendant, on proof of death, offered to pay the claim upon the basis of what had been paid in, making the amount $150 instead of $1,000. This the plaintiff refused, and this action was brought to determine the rights of the parties under the contract. The trial court, after- receiving the evidence, directed a verdict for the plaintiffs on the ground that the statements made by the insured did not constitute a warranty of the truthfulness of the representations. . The defendant excepted to this direction of the court, and in its own behalf asked that the court direct a judgment in favor of the defendant.

There is but one question in this case. If the statement as to the age of the insured was a warranty, then the judgment cannot be supported. If it was not, the direction of a verdict for the plaintiffs was justified, and the judgment should be affirmed. The language of the application, as well as of the policy of insurance,-is selected by the defendant, and is to be taken- most strongly against it. In the case of Fitch v. American Popular Life Ins. Co. (59 N. Y. 557), where the language of the contract was much stronger than in the case at bar, the court say, at page 566: “ Although the term warranty is used in both instruments, it must be construed with reference to the other language employed in the same instruments. These instruments were prepared by the defendant, and themselves explain the degree of responsibility to be assumed by the applicant in answering the questions propounded to him. Although the word warranty is employed, yet, if the explanations accompanying that term show that a strict warranty was not intended, these explanations given by the defendant itself in the papers, and which induced the applicant to undertake to answer the questions and enter into the contract must govern.”

In the case at bar there was no claim that there was any fraud on the part of the insured. He stated his age to the best of his knowledge and belief, and there was no evidence that he had any knowledge or belief different from that which he stated in his application, though evidence was introduced on the trial tending to show that he was in fact, several years older than the date of his birth, as given in the application, would establish. He did not warrant liis statements to be true; he simply says that each and every one of them are true “to the best of my knowledge and belief,” and he further consents and agrees “ that any untrue or fraudulent statement made above,'or to the'medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from, or voluntarily severing my connection with this Legion, shall forfeit the lights of myself and my family, or dependents to all benefits and privileges therein.” This simply says that if any statement is untrue or fraudulent ; if he has intentionally stated that which to his knowledge and belief is not. true, it shall operate to vitiate tile-insurance; but there is no agreement that a statement, false in fact, but made to the best of his knowledge and belief, shall have the effect to defeat the objects for which he has for a series of years contributed his money in good faith ; and the courts of this State will not attempt to make a better contract for the insurers than they have themselves formulated and subscribed, by construing into a warranty the statements of the insured, made to the best of his knowledge and belief. “ Under this view of the contract it was necessary,” say the court in Fitch v. American Popular Life Ins. Co. (supra), “ in order to sustain the defense, to show not only that the statements were untrue, but that they were known by the insured so to be, and that they and the alleged, omissions were made intentionally and with a fraudulent design; and to entitle the defendant to the nonsuit asked, it was necessary that this fraud should be so conclusively proved that there was no question for the jury.” This was a case where the language of the contract made all of the allegations warranties, but the court refused to give them this effect, and permitted the plaintiff to recover, although it was admitted that there was some evidence tending to show fraud in the statement and in omitting to mention certain facts.” The same doctrinéis held in the case of Titus v. Glens Falls Ins. Co. (81 N. Y. 410) and in Wood v. Firemens Fire Ins. Co. (126 Mass. 316), and this is undoubtedly the law of this case.

The judgment of the trial court should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  