
    Fanny Greenfield, Administratrix, etc., Respondent, v. The Massachusetts Mutual Life Insurance Company et al., Appellants.
    Where, by a policy of life insurance, the sum insured is made payable to the “ assured, his executors, administrators and assigns,” for the benefit of a third person, an action jhereon is properly brought in the name of the personal representative of the assured, who, by the policy, is constituted trustee of an express trust, within the meaning of section 113 of the Code.
    Where, in such action, upon motion of the insurance company, the beneficiaries named in the policy are ordered to be and are made parties, the company is precluded from objecting that they are not properly joined with it as defendants.
    If an answer containing a denial of all the allegations of the complaint, except as thereinafter stated, is rendered indefinite, uncertain or complicated, the remedy is by motion to make it more definite, and not by the exclusion of evidence upon the trial.
    Under a general or specific denial of any part of a complaint, which plaintiff is required to prove to maintain his action, defendant may give evidence to disprove it.
    In an action brought against a Massachusetts life insurance company, the complaint admitted the non-payment of premiums due, but alleged that there was due upon said policy a certain sum, under a statute of said State (“the non-forfeiture act,” passed April 10,1861), which provides that no life policy, issued by a company chartered by that commonwealth, shall be forfeited for non-payment of premium, until the expiration of a term of temporary insurance therein provided for, and also alleged notice and proof of death, and a promise of the company to pay the sum claimed to be due. The answer denied that there was anything due upon the policy, under the provisions of the statute referred to in the complaint.
    
      Held, that the action was based upon the policy, and not upon an account stated; that the answer put in issue the alleged indebtedness upon the policy, and the question was whether the temporary policy provided for by said statute was in life at the time of the death of the assured; and upon this issue the testimony of an experienced actuary, that he had made the computation, in accordance with the statute, and that the temporary policy created thereby had expired prior to the death of the assured, was competent, and the rejection thereof error.
    Also held, that plaintiff had no right to substitute upon the trial, for the cause of action set out in the complaint, one founded upon an account stated, and thereby exclude this defence for the reason that the answer did not set up affirmatively an error, or fraud in the statement of the account.
    An insurance company has the right to waive any of the conditions of the policy as to proof, presentation of claim, etc.; and a promise to pay, with knowledge of the facts, is such waiver.
    (Argued January 23, 1872;
    decided February 6, 1872.)
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon the the decision of the court at Special Term.
    This action was originally brought by the plaintiff, as administratrix of John Greenfield, deceased, against defendant, The Massachusetts Mutual Life Insurance Company, upon two policies of insurance upon the life of John Greenfield. The other defendants are the plaintiff, in her individual capacity as wife of John Greenfield, the mother and children of John Greenfield, and the son of the plaintiff by a former husband. They were made defendants in pursuance of an order of the court, made on motion of the insurance company. The policy first issued was dated March 13,1865, and was numbered 10,069. It is the only one as to which any controversy now exists. The money due under the second policy, No. 16,722, dated October 18, 1867, has been paid over and divided between the defendants; and that policy, and all questions under it are, by stipulation, disposed of.
    The facts pertinent to the question decided, sufficiently appear in the opinion.
    The court decided that the administratrix was the only person who could maintain the action; that she was trustee of an express trust. Judgment was directed for amount of policy, with directions as to the disposition of the proceeds.
    
      
      George Bliss for appellants.
    The evidence of the actuary, Fackler, was admissible. (Schermerhorn v. Van Allen, 18 Barb., 31; Andrews v. Bond, 16 id., 642; Wheeler v. Billings, 36 N. Y., 264; Raymond v. Richardson, 4 E. D. Smith, 172; Simpson v. McArthur, 16 Abb., 302.) There was no account stated. (Swift v. Wells, 2 How., 79; Stewart v. Elwele, 3 Code Rep., 139; Miller v. Hooker, 2 How., 171; Van Rensselaer v. Jewett, 6 Hill, 373; Dewey v. Field, 13 How., 437; McCullough v. Brodie, id., 346; S. C., 6 Duer, 659; Sharp v. Mayor, 9 Abb., 426; 18 How., 213, on appeal; 31 Barb., 378; S. C., 19 How., 193; Breckon v. Smith, 1 A. & E., 488; Bates v. Tounly, 2 Exch., 152; Boynham v. Holt, 8 Jur., 962.) An account stated is not conclusive; it throws the burden of proving mistakes on defendants. (Lockwood v. Thorn, 18 N. Y., 285; Williams v. Glenny, 16 N. Y., 391; Lockwood v. Thorne, 1 Kern., 173; McDougall v. Cooper, 31 N. Y., 498; Townsley v. Denison, 45 Barb., 492; Hutchinson v. Market Bank, 48 Barb., 324.) It is not neces sary to plead specially fraud or mistake. (Thomas v. Hawkes, 8 M. & W., 140; 2 Greenl. on Ev., § 128; Perkins v. Hart, 11 Wheat., 237, 256; Shaw v. Picton, 4 B. & C., 715.) The company was not bound to know how many policies it had issued on life of deceased. The question is, did they know ? (Kingston Bank v. Eltinge, 40 N. Y., 391; Union Nat. Bank v. Sixth Nat. Bank, 43 N. Y., 452; Kelly v. Solari, 9 M. & W., 53; Dails v. Lloyd, 12 Ad. & E. N. S., 531.) There was no waiver of an explicit claim or estoppel. (Simpson v. A. D. Ins. Co., 2 C. B. N. S., 257, 293; Brown v. Brown, 30 N. Y., 519; Boker v. Mut. Ins. Co., 43 N. Y., 283, 289; Wilcox v. Howell, 44 Barb., 396, 401; Van Ness v. Bush, 14 Abb., 33, 38; Blivin s. Bleakley, 23 How., 124, 129; Todd v. Kerr, 42 Barb., 319; Donaldson v. Hall, 2 Daly, 325; Lawrence v. Brown, 1 Seld., 396, 401; Garlinghouse v. Whitwell, 51 Barb., 208; Plumb v. Cattaraugus Co. Mut. Ins. Co., 18 N. Y., 394; Dezell v. Odell, 3 Hill, 215; Walker v. Paine, 31 Barb., 213, 229; Todd v. Kerr, 42 Barb., 319; Hutchins v. Hebbard, 34 N. Y., 27; Andrews v. Bond, 16 Barb., 647; Welland Canal Co. v. Hathaway, 8 Wend., 483; Shapley v. Abbott, 42 N. Y., 443, 447; Hazelton v. Colburn, 1 Robertson, 345, 349 ; Tebbets v. Dowd, 23 Wend., 379, 411; Sigerson v. Matthews, 20 How., U. S., 496; Thurston v. Wynn, 12 Wheat., 183; Reynolds v. Douglas, 12 Pet., 497; People v. Connor, 46 Barb., 333, 336; Kelly v. Solari, 9 M. & W., 54; Kingston Bank v. Eltinge, 40 N. Y., 391; Union Nat. Bank v. Sixth Nat. Bank, 43 N. Y., 452; Rheel v. Hicks, 25 N. Y., 289; Bank of Commerce v. Union Bank, 3 Comst., 230; Canal Bank v. Bank of Albany, 1 Hill, 287; Meyer v. Clark, 2 Daly, 497; Dails v. Lloyd, 12 Ad. & El. [N. S.], 531; Shepherd v. Chewter, 1 Campb., 274, 276, in notis; Reyner v. Hall, 4 Taunt., 725.) The promise to pay was without consideration, and of no effect. (Smith v. Ware, 13 Johns., 257; Ehle v. Judson, 24 Wend., 97; Watkins v. Halstead, 2 Sandf., 311; Jees v. Archer, 2 Barb., 420 ; Ingraham v. Gilbert, 20 Barb., 151.) Plaintiff cannot maintain this action. (Appeal of Elliott’s exrs., 50 Penn., 75; McCord v. Noyes, 3 Brad., 139; St. John v. Am. Mut. Ins. Co., 2 Dur., 419 ; Harrison v. McConkey, 1 Md. Ch. Dur., 34.) The appointee named in the policy is the proper person to bring the action. (Hogle v. Guardian Life Ins. Co., 6 Robert, 567; S. C., 4 Abb. [N. S.], 346; St. John v. Am. Mut. Life Ins. Co., 3 Kern., 31, 39; Rawls v. Am. Mut. Life Ins. Co., 27 N. Y., 287; Ruppert v. Union Mut. Ins. Co., 7 Rob., 155.) Plaintiff is not, within the meaning of that section the trustee of an express trust. (Considerant v. Brisbane, 22 N. Y., 389, 395; Frink v. Hampden Ins. Co., 1 Abb. [N. S.], 344; Freeman v. Fulton Fire Ins. Co., 14 Abb., 398.)
    
      A. J. Requier for respondent.
    Plaintiff, as trustee of an' express trust, had the right to sue. (Supra; case, 339, 366; Wyman, admx., v. Wyman, 26 N. Y., 256 ; Considerant v. Brisbane, 22 id., 389 ; The People v. Horton, 5 Seld., 179 ; see also following cases in Missouri, where the trustee of an express trust is defined as in § 113, supra; Wright v.
    
    
      
      Tinsley, 30 Mo. (9 Jones), 389; Harney, admr., v. Dutcher et al., 15 id., 89.) The action is upon an account stated. (2 Greenl. Ev., § 128.) If original contract void, an actual accounting and promise to pay sufficient. (Holmes v. Le Camp, 1 J. R., 36.) It is a finalty, and can only be impeached for fraud or mistake. (Lockwood v. Shone, 11 N. Y., 175; Daws v. Durfee, 10 Barb., 213; Davenport v. Wheeler, 7 Cow., 233 ; Phillips v. Belden, 2 Edw., Ch. 13-20; Bruen v. Hone, 2 Barb., 595; Wilde v. Jenkins, 4
    Paige, 495; 1 Black, 175.) This must be pleaded affirmatively to admit evidence. (Mayor of N. Y. v. The Brooklyn Fire Ins. Co., 4 Keyes [Ct. of Ap.], 468; McKyring v. Bull, 16 N. Y., 297; 12 How., 455; 3 Duer, 685; 2 Kernan, 17; 31 Barb., 537; 14 Abb., 147; 6 Barb., 144.) Lack of notice waived by express admission of liability. (Goit v. Nat. Pro. Cy., 25 Barb., 192; Angell on Ins., §§ 244, 248 ; 25 Wend., 381; 6 Cow., 415; 9 How. [U. S. R.], 403 ; 6 Har. & John., 412; 33 Ala., 15; 22 N. Y., 405; 1 Denio,
    518; 12 Barb., 445; 19 id., 441. Special attention is called to the case of Viele v. Germania Fire Ins. Co., “ Transcript,” March 3d, 1869; 26 Iowa, 949-968; Bliss on Life Ins., §§ 263-267.) Every intendment is in favor of waiver, and against forfeiture. (Jackson v. Topping, 1 Wend., 395 ; 3 Sand., 670 ; 7 Paige, 353; 12 Vesey, 290, 291; Willard’s Eq. Jur., 56; 2 Story’s Eq. Jur., § 1319.)
   Grover, J.

I think the action originally was properly brought by the plaintiff in her representative capacity against the insurance company. By the policy, the defendant undertook to pay to the assured, Ms executors and administrators, the sum of $3,000, ninety days after due notice and proof of the •death of the assured, during the continuance and before the •termination of the policy, $2,000 of said sum insured being for.the express benefit of Jane, the wife, and $1,000 for Agnes, the mother of the assured. This was a contract made by the assured for the benefit of his wife and mother. The undertaking of the company, in effect, was to pay to the personal representatives of the assured the sum specified in the policy for the benefit of his wife and mother. This constituted such representatives the trustees of an express trust within the meaning of section 113 of the Code, by virtue of which they were authorized to prosecute an action for the benefit of the wife and mother. That section provides that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted; a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. The order for mailing the mother and children of the deceased wife and the plaintiff in her individual capacity defendants, was made by the court upon motion of the insurance company, and they having been made such, pursuant to such order, the company is precluded from objecting that they were not properly joined with it as defendants. The judge before whom the cause was tried, received the testimony of the witness Faekler, subject to objection, but in determining the case rejected it as inadmissable under the pleadings, to which the counsel for the company excepted. This presents the important question in the case, as this testimony, if true, proved that under the statute of Massachusetts by which the company was incorporated, the policy expired in July 1867, before the death of the assured, which occurred in December thereafter. The counsel for the respondent endeavored to sustain this ruling upon the ground that this action was not based upon the-policy, but upon an amount stated. This must be determined from the complaint and testimony given upon the trial. The former after stating -the incorporation of the company, and the facts showing its right to transact business in this State, alleges the issuing of the policy by the company to the assured, and the terms thereof, from which it appears that the company on the 13th of March, 1865, in consideration of the sum of $123.90 paid, and of a like sum to be paid on the 13th of March, in each year thereafter, during the life of the assured,. conditionally, etc. The complaint does not state that any premium was paid to the company, after March 13, 1865, but proceeds to set out section 122 of the Massachusetts statute, passed April 10, 1861. The complaint admits the non-payment of the premiums as required by the policy, and avers that notwithstanding such default, there became due under said policy, in pursuance of the said provisions of the said act of 1861, the sum of $2,660.96, payable in ninety days after the said notice and proof of the death of the assured as aforesaid. The complaint further avers that John Greenfield, the assured, died December 9, 1867, and that on the sixth day of March, 1868, the plaintiff gave the defendant, the insurance company, notice and proof of the death of the assured, and that the company at that time, and at divers other times, waived any farther or other notice of claims or proof of death, and promised to pay the sum of $2,660.96, on said policy. The company, by its answer, denied each and every allegation of the complaint, not thereinafter expressly admitted or denied. The answer admitted the incorporation of the company, the making of the contract of insurance, and some other matters, but did not admit that there was anything due upon the policy under the provisions of the aforesaid statute of Massachusetts. The allegation of the complaint, in this respect, was therefore denied by the answer. It devolved upon the plaintiff to prove it, if its- truth was essential to a recovery. That it was so essential, is manifest for the reason that, upon the face of the complaint, it appears that in the absence of the statute the policy lapsed for non-payment of premium in March, 1867, nine months before the death of the assured. That it terminated at that time and ceased longer to impose any obligation upon the company, or promise to pay the amount made after the death, which occurred in December, 1867, would be without any consideration, and therefore void. The continuance of the policy in life, by virtue of the statute, was not only set out in the complaint as the basis of the right of recovery, but, in fact, was essential to such right, .as without it there could be no pretence that the company, at the time of the death of the assured, had any contract of assurance whatever upon his life. The plaintiff was, therefore; bound to prove this fact. It is clear, upon both principle and authority, that under a general or specific denial of any fact, which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it. ( Wheeler v. Billings, 38 N. Y., 263.) If an answer containing a denial of the allegations of the complaint, except as thereinafter stated, is rendered indefinite, uncertain or complicated, the remedy is by motion to make the answer more definite, and not the exclusion of evidence upon the trial. To show the materiality of the testimony of Fackler, which was rejected, a brief examination of the statute in question is necessary. Section one provides in substance, that no life policy thereafter issued by any company, chartered by that commonwealth, shall be forfeited by non-payment of premium, any further than regards the right of the party insured to have it continued in force, beyond a certain period to be determined as follows: The net value of the policy, when the premium becomes due and is not paid, shall be ascertained according to the combined experience or actuaries’ rate of mor tality, with interest at four per cent per annum. After deducting from such net value any indebtedness to the company by the assured, or notes held against the assured, which notes, if given for premium, shall be then canceled, four-fifths of the remainder shall be considered as a net single premium of temporary insurance. And the time for which it will insure shall be determined according to the age of the party at the time of the lapse, and the assumptions of mortality and interest aforesaid. Section 2 provides that, if the death of the party occur within the term of temporary insurance covered by the value of the policy as determined by the previous section, the company shall be bound to pay the amount of - the policy, the same as if there had been no lapse of premium. The question was, whether the temporary policy was in life at the time of the death of the assured. The plaintiff showed, prima facie, that it was, by proving that the company, with knowledge of the time of the death, had promised to pay. Faekler’s testimony showed that he was an experienced actuary. That he had computed the net value of the policy in March, 1867, at the time it would have lapsed for non-payment of premium but for the statute, and made deductions therefrom, which accord with the statute, and that the temporary policy created by the statute expired as early as July 1st, 1867. This, if correct, was a complete answer to the presumption that it continued in life until December 13, 1867, the time of death, founded _ upon the promise of the company to pay, made thereafter. This testimony proved that the temporary or time policy created by the statute had expired months previous to the death, and showed that, in fact, the plaintiff had no right of recovery. We have seen that the cause of action set out in the complaint was founded upon the temporary policy created by the statute. That the answer was sufficient to entitle the company to prove that that policy had terminated by lapse of time prior to the death of the assured. This being so, the plaintiff had no right, upon the trial, to substitute for the cause of action set out in the complaint one founded upon an amount stated, and base a recovery, upon the latter cause, thereby excluding evidence of a defence, for the reason that the answer did not set up, affirmatively, some error or fraud in the statement of the amount. That the plaintiff relied upon any such ground for a recovery, the complaint should have been amended, setting up such a cause of action, and this would have entitled the defendant to amend his answer setting up his defence. This renders it unnecessary to examine whether the testimony proved an amount stated. I think it did not, for various reasons, but as that is immaterial, the question will not be further considered or passed upon. The evidence of Fackler, which was improperly rejected, if true, showed that the plaintiff had no cause of action. For the error of the court in rejecting his testimony, the judgment must be reversed and a new trial ordered. This renders it unnecessary to. determine the question whether the proof of death and claim made by the plaintiff, upon the temporary policy created by the statute, was sufficient, within the requirements of the second section of the statute, in those respects; but as the question may become material upon the retrial, in case the plaintiff shall be able to show that the policy was in life at the time of the death, it will be proper to determine it. Upon this assumption, the plaintiff had a valid claim upon the policy by complying with its conditions, as to proof of death, and presenting the claim to the company. The company had the right to waive any of these conditions. Proof of death was duly made. The objection is the neglect to present a claim founded on this policy. The company had a right to waive this formality. The promise by the company to pay, with full knowledge of the fact, was a waiver, and obviated the objection within all the authorities. The judgment appealed from must be reversed and a new trial ordered, costs to abide event.

All concur.

Judgment reversed.  