178 U.S. 345

MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Petitioner,
v.
BESSIE F. SEARS, as Executrix of Stephen P. Sears, Deceased.

This, like the case of Mutual L. Ins. Co. v. Phinney, just decided, 178 U. S. 327, 20 Sup. Ct. Rep. 906, 44 L. ed. ——, is an action on an insurance policy issued by the company, the premiums on which were unpaid for years before the death of the insured. The facts, as disclosed by the pleadings (and the case went off on the pleadings, without any testimony), are that on May 18, 1891, the insurance company issued a policy to Stephen P. Sears, he being the beneficiary named in the policy, as well as the insured. He paid the first annual premium and received the policy, but neglected to pay the premium due on May 18, 1892, and all subsequent premiums. He lived until March 30, 1898, and thereafter his widow, the plaintiff below, was appointed his executrix. The answer alleged nonpayment of the premiums from 1892 onward, and also 'that subsequent to the failure of the said Stephen P. Sears to make payment of the said annual premium falling due on said policy May 18, 1893, and subsequent to the lapsing of said policy for failure to make said payment, and after the said Stephen P. Sears was fully informed and knew that said policy had been by it declared lapsed and void for nonpayment of premium, tis defendant, through its agents, applied to said Stephen P. Sears to make restoration of said policy by making payment of said defaulted premium and having the said policy restored to force, but that said Stephen P. Sears refused to make such payment, and refused longer to continue said policy or make any further payments thereon, and then and there elected to have the same terminated, and this defendant, relying upon the said election and determination of said Stephen P. Sears, at all times subsequent thereto treated said policy as lapsed, abandoned, and terminated, and relying upon the said conduct of said Sears abstained from taking any further action or step in relation to said policy, by way of notice or otherwise, in order to effect the cancelation and termination thereof.'

A demurrer to this answer was sustained, and judgment entered for the plaintiff, which was affirmed by the court of appeals (97 Fed. Rep. 986, 38 C. C. A. 696), and the case was thereupon brought to this court on certiorari.

Messrs. Julien T. Davies, John B. Allen, Edward Lyman Short, Frederic D. McKenney, and Robert C. Strudwick for petitioner.

Messrs. Stanton Warburton and Harold Preston for respondent.

Mr. Justice Brewer delivered the opinion of the court:

In view of what had been already decided in the case of Mutual L. Ins. Co. v. Phinney, 178 U. S. 327, 20 Sup. Ct. Rep. 906, 44 L. ed. ——, it is needless to do more than note the fact that, as shown by the answer, after the insured had once defaulted in May, 1892, and a second default had occurred in May, 1893, application was made to him by the company, through its agents, to restore the policy, and that he declined to make any further payments or to continue the policy, and elected to have it terminated, which election was accepted by the company, and the parties to the contract treated it thereafter as abandoned. As we held in the prior case, there is nothing in the New York statute (if controlling at all) to prevent the parties from dealing with that as any other contract; and if they choose to abandon it, that action is conclusive.