
    William Jacklin, Resp’t, v. The National Life Association of Hartford, Conn., App’lt.
    
      (Supreme, Court, General Term, Second Department,
    
    
      Filed February, 1894.)
    1. Insurance—Live—Mental derangement.
    Mere mental aberration will not necessarily constitute ill-health.
    8. Same.
    To what extent mental disturbance will destroy or interfere with the functions of the body, must depend upon the circumstances of each case and is a question of fact.
    3. Damages—Stipulation.
    A stipulation as to amount due renders unavailable an objection upon the trial that there was a lack of proof as to the amount due under the contract.
    Appeal by the defendant, The National Life Association of Hartford, Conn., from a judgment of the supreme court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 21st day of February, 1893, upon the decision of the court after a trial at the Orange county circuit, with notice of an intention to bring up for review on such appeal the exceptions filed to the findings, refusals to find and rulings of the court, and the order directing judgment.
    
      This action was brought to recover the amount of a life insurance policy upon the life of Yenie Jacklin by her father, the beneficiary named in such policy.
    The opinion of the trial court was as follows:
    Brown, J.—“ The policy that provides for the payment of $100 ‘solely from the funds accumulated from payments of its insuredalso, that if such accumulation on hand shall be insufficient to pay accrued claims, for an assessment on contracts in force of five per cent, on single premium, and if the whole fund from assessments and accumulations is sufficient to pay all claims, it shall be distributed pro rata, etc.
    It has been stipulated that ‘the sum to be received on this policy, if anything, is $73.97.’ In view of this stipulation the point made of a lack of proof of the amount due under the contract is without force.
    Proof of accumulation by the company and the amount that should be realized by an assessment could go no further than the stipulation, and was unnecessary. I think ch. 231, Laws of 1877, is applicable to this policy.
    Such is the clear implication from chap. 328, Laws of 1885, and while it might be a debatable question if the act of 1885 had not been passed, this question does not even admit of a serious dispute.
    The point was not presented in Ronald v. Mutual R. F. L. Association, 132 1ST. Y. 378; 44 St Eep. 407, neither was the act of 1885 called to the attention of the court.
    1 am also of the opinion that the question of the breach of warranty must be decided in plaintiff’s favor. The question in substance was: ‘What is the condition of health of your mother?’ and the answer was, ‘sound.’
    The mother was then in the Binghamp’ton Lunatic Asylum afflicted with chronic mania, a serious form of insanity, and at times violent, profane and obscene.
    The physician testifies that at the time of her admission she was in fair physical condition, and that in 1891 (the time of application for insurance) she was eating and sleeping well except when she had periods of mental disturbance.
    Both parties have, by withdrawing the case from the jury, treated this question as one of law, and the proposition, therefore, is, ‘Can the court determine as a question of law that an insane person is necessarily in unstiund physical condition?’
    ISTo evidence has been given to show whether an insane person is considered among medical men as in an unsound condition of health, and the court possesses no expert knowledge which enables him to solve that question as one of fact. But obviously mere mental aberration will not necessarily constitute ill-healthy
    To what extent mental disturbance will destroy or interfere with the functions of the body must depend upon circumstances of each case. It is a question of fact to be solved in each instance by the evidence.
    There is nothing before me that compels me to say that the mother-was in unsound health, and as the burden of so proving rests upon the defendant, the decision, in the absence of proof, must be against it
    “Judgment for plaintiff for $73.97.”
    
      John M. Gardner, for app’lt; F V. Sanford1, for resp’t
   Pratt, J.

The opinion filed by the court below covers all the questions and renders further discussion unnecessary.

The judgment must be affirmed, with costs.

Cullen and Dykman, JJ., concur.

Judgment affirmed.  