Weatherbee v. New York Life Insurance

This is an action at law upon a policy of insurance issued to the plaintiff and subsequently surrendered by her husband without her knowledge, he taking a new policy payable to himself. The proceeding is not a bill in equity and is not brought for the purpose of enforcing a trust in the second contract. See Nesbitt v. Berridge, 10 Jur. (N. S.) 53; Barry v. Brune, 71 N. Y. 261; Chapin v. Fellowes, 36 Conn. 132; Lemon v. Phœnix Ins. Co. 38 Conn. 294, 302; Matlack v. Seventh National Bank, 180 Penn. St. 360. It must be taken to assume the first to be in force and to refer to the second, to which the plaintiff is a stranger, simply for the purpose of seeking to have the payments of premiums under it treated as payments upon the first and as enuring to the benefit of the plaintiff. This cannot be done. No doubt the attempt to substitute a new contract for the old one was void, but the plaintiff cannot give the payments under it a new character by attempting to ratify or adopt them. She cannot affirm or adopt them except as they were made, and they were made upon a contract to which, as we have said, she was a stranger.

*578The plaintiff contends that at all events there has been no forfeiture of the policy because the defendant by assuming to end it exonerated the plaintiff from fendering the premiums under it. Language to that effect can be found in one case, at least. Pilcher v. New York Ins. Co. 33 La. An. 322, 326. See Garner v. Germania Ins. Co. 110 N. Y. 266. But there can be no estoppel or waiver by conduct of which the plaintiff was ignorant. We assume that she was within the scope of the defendant’s act which was directed against the contract to which she was a party. But it cannot be assumed that if the plaintiff had tendered the premiums after the surrender ás before, thereby indicating to the defendant that she did not assent to the attempted change, the defendant would not have accepted the money and have fulfilled its obligations. Presumably it was acting honestly in the matter, and believed that it had her assent. On the other hand if we suppose the plaintiff to have been informed of the substitution and to have remained silent for an appreciable time, she probably would have been estopped at a later date, when the value of the policy had changed, to set up her original rights. In short, she cannot take advantage of the defendant’s conduct as a waiver without finding herself in the position of having waived her right to repudiate the result.

The question whether the plaintiff is entitled to judgment for the surrender value allowed by the terms of the policy when premiums have been paid .for more than two years, was not argued, and we leave it for decision in the Superior Court.

Judgment reversed ; case to stand for further hearing.