§ 547. Assignment of Life Insurance Policies. Life insurance companies usually express their policies in such terms as to require the assent of the insurer to any assignment of the policy; and, notwithstanding important differences between fire and life policies, it is a matter of doubt whether the rule of assignability differs essentially in these classes of insurance, save so far as the validity of assignment may have been affected by statute.1 Supposing, however, these preliminaries to have been complied with, or even, perhaps, without the insurer's consent or notice to him, so far as no hindrance has arisen in consequence, an assignment by way of security or outright will certainly be protected; and indeed such assignments are matters of every-day experience. There are even cases which go to sustain the partial assignment of a life policy with due notice to the insurer; though the right to break up a policy in this manner cannot be regarded as clearly settled.2 On general reasoning any assignee would take the policy, subject to all the equities which attached to it in the hands of the assignor; and fraud on the part of the assignee in procuring the assignment vitiates the transaction.3

It is sometimes a matter of difficulty to determine who shall be entitled to the money payable under a policy of life insurance; and here the insurance company, wherever it is bound to pay, may find it convenient to pay the money into court, and interplead in equity the conflicting claimants to the fund. These claimants are usually wife, children, or

2 Cf. Pomeroy v. Manhattan Life Ins. Co., 40 Ill. 398; Palmer v. Merrill, 6 Cush. 282. For the English rule as to what constitutes an assignment, see Bliss, 511-514, and cases cited; Bunyon, 332-337. See, on this general subject, May Ins. §§ 377399. On the whole, the assignment of a life insurance policy appears more favored than that for fire insurance. May, § 388.

8 Bliss, 515, 516; Mangles v. Dixon, 3 H. L. Cas. 702; Succession of Risley, 11 Rob. La. 298.

others, for whose benefit the policy was originally made out; the administrator or executor of the insured, who would have no interest in the fund as part of the estate, if the policy was made expressly payable to some other person, such as wife or child; and creditors, whose claims it is sometimes sought to secure by an assignment of the policy.1 § 548. Contract of Life Insurance; Preliminary Questions; Medical Examination. The contract of life insurance is almost invariably represented by a policy. As a basis of the agreement between insurer and insured, the latter makes formal application, and preliminary questions are put to him, which he must answer in writing; the testimony thus elicited being chiefly to the point of probable length of existence. A medical examination is sometimes required besides. And here the principle of warranty and representation applies, since the questions and answers become a part of the policy,

1 A married woman can, according to several cases arising under the new married women's acts, join in the transfer of an insurance policy on her husband's life, even though it were to secure his own creditors; but where benefits under a policy are to several persons in the alternative, or various interests are to be affected by an assignment, all should concur, in order to render the assignment complete. See Bliss Life Ins. 496 et seq.; Bunyon, 208; Gould v. Emerson, 99 Mass. 154; Chapin v. Fellowes, 36 Conn. 132; Knickerbocker Life Ins. Co. v. Weitz, 99 Mass. 157. And as to the power of married women to assign, see Emerick v. Coakley, 35 Md. 188; Pomeroy v. Manhattan Life Ins. Co., 40 Ill. 398.

But see Eadie v. Slimmon, 26 N. Y. 9; Connecticut Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305; Bliss, 527-552. See, further, May, $$ 390, 391. For, while one with the right of disposing may sell what is his own, he cannot dispose of another's interest. The assignment of

a life insurance requires no delivery of the policy to vest the title in the assignee, for the question as between assignor and assignee in such cases is one of mutual intent, and notice to the insurer is only for prudence as respects adverse claims. Otis v. Beckwith, 49 Ill. 121; Bliss Life Ins. 513; Wood v. Phoenix Mut. Life Ins. Co., 22 La. Ann. 617; May, §§ 395, 396; Chapman v. Chapman, 13 Beav. 308; Wells v. Archer, 10 S. & R. 412. A policy of life insurance, expressed to be for the benefit of widow and child of assured, cannot be affected by his will. Gould v. Emerson, 99 Mass. 154. But see Kerman v. Howard, 23 Wis. 108, apparently contra, though decided on a different state of facts. Gould v. Emerson turned upon construction. The general ground is that rights vest when a policy issues, and cannot be divested without a beneficiary's consent.

See, as to attachable interest of wife in a policy expressed for her benefit, 132 Mass. 408.

and may be quite material, so far as concerns the general health, habits of life, occupation, age, and other circumstances bearing directly upon the risk which the insurer takes; facts which are better known, moreover, to the applicant for insurance than to the insurer.

Companies put their questions more carefully now than formerly, and their tendency is to throw upon the applicant considerable responsibility, by turning written statements made by the insured at the time of his application into conditions precedent, upon whose substantial correctness the validity of the policy must depend. Where these questions and answers, however, are by language of doubtful import made part of the policy, the disposition in the courts is to make them representations rather than conditions precedent or warranties, in which case the insurer would hardly escape the responsibility of payment, unless it could be shown that the insured had made a palpable material error, or had knowingly sought to defraud the company. And even though, as now more commonly happens, the questions and answers are, by apt words, made literal warranties in the policy, a casual misstatement by the applicant, if in itself immaterial to the risk, appears to be regarded with indulgence; the courts not failing to observe that there are statements of opinion or belief, as well as statements of fact or of future promise, and that with regard to the existing state of any man's health there are uncertainties which medical science itself fails to probe. To this may be added another circumstance; namely, that agents of the company in these days very often solicit insurance business, draft an application, and not only reduce the applicant's answers to writing, but explain the questions. and suggest the proper answers to be put down on the paper.1 And it is held, furthermore, that where a company issues a

1 See, on this point of warranty and representation in life insurance policies, Vose v. Eagle Life Ins. Co., 6 Cush. 42; Rawls v. American Life Ins. Co., 27 N. Y. 282; Kelsey v. Univ. Life Ins. Co., 35 Conn. 225; Miles v. Conn. M. L. Ins. Co., 3 Gray, 580;

98 Mass. 381; Valton v. Nat. Loan Fund Ass. Society, 20 N. Y. 32; 120 U. S. 183; Bliss Life Ins. 49-133, and English and American cases cited; May Ins., cs. vi., vii.; Bunyon, 32 et seq.; Ang. Ins. §§ 140, 148, 150; Arnould, § 182.

life policy or accepts a premium with knowledge that a breach of condition exists, forfeiture for such breach is waived.1

§ 549. The Same Subject. The most material inquiries pressed upon the applicant for his statement of facts relate, of course, directly to his health, or more remotely to the probable length of his life. He is generally questioned as to his past and present health; also, as to his age, habits, occupation, and residence, since all these circumstances bear upon the risk; also, as to the health and causes of death of others in his family, this aiding in determining hereditary diseases to which the insured might be subject. And by way of caution, or to elicit further information, he is also asked for the name of his usual or last medical attendant, and whether insurance has been already applied for on the same life; and, if so, to what amount, if any, is it insured. Of these the most material inquiries relate to health present and past. The applicant may be questioned as to his general health; and as the answers so drawn out could not be very satisfactory, he may likewise be asked whether he has been subjected to specific diseases. Where life insurance is renewed, and no new conditions respecting health are imposed, and only a general condition that the party is in “good health," this expression must be construed by the terms and statements contained in the original policy; and as these words do not imply perfection, but a reasonable degree of health, they are rather vague at best, and deserve a construction favorable to the insured where his answers were honest.2

1 Phoenix Ins. Co. v. Raddin, 120 U. S. 183. Questions imperfectly answered cannot be relied upon. Ib.

2 Peacock v. N. Y. Life Ins. Co., 20 N. Y. 293. On this point see, also, Park Ins. 933; Ross v. Bradshaw, 1 Bl. 312, and other English cases cited in Bliss Life Ins. 134-142; Illinois Society v. Winthrop, 85 Ill. 537; Scoles v. Universal Life Ins. Co., 42 Cal. 523; May, §§ 295-298; Cushman v. U. S. Ins. Co., 70 N. Y. 72. While admissions as to ill-health made by an insured not interested

in the policy have been held not receivable in evidence in certain cases to contradict the terms of the policy, there are strong instances of apparent collusion, as in the case of a husband procuring his wife's life to be insured for his own benefit, where these admissions were not only received, but upon the strength of them the policy was considered a fraud upon the insurer. Cf. Kelsey v. Univ. Life Ins. Co., 35 Conn. 225; Rawls v. American Life Ins. Co., 27 N. Y. 282. See May, § 295 et seq. Inquiries as to

§ 550. Conditions subsequent vitiating the Policy. But besides these statements of an applicant which may be em