declarations of the assured are admissible in evidence when made in connection with the contract of insurance, or when they are so near contemporaneous therewith as to constitute a part of the res gestae.325 In Connecticut it was held that letters written and declarations made by the assured to third persons shortly before the application, in which the assured stated herself to be in bad health, were admissible in evidence in an action on the policy by the beneficiary.328

§ 2377. Declarations and statements of claimant—Admissibility. This rule excluding declarations and statements of the assured does not apply to declarations and statements made by the beneficiary. As to such statements they come within the ordinary rule of the admissibility of admissions of a party against his interest. Hence any statement by the claimant or beneficiary as to the nature of the risk or the cause of the death, or otherwise antagonistic to his interest, may be proved in an action on the policy. Thus where a life policy was issued on the application of a husband in favor of his wife, in an action by her on such policy, it was held that statements made by her in a verified petition for divorce were admissible in evidence against her for the purpose of showing false statements in the application.327

§ 2378. Disease-Proof sufficient to avoid policy.-The applicant for life insurance is usually required to answer certain questions touching the disease of specific organs of the body. These answers are usually warranties the falsity of which will avoid the policy. But the question is as to what is sufficient proof of disease of any such organ to render such statement false. It is not sufficient to prove mere acci

Miss. 308; Rawls v. American &c. Ins. Co., 27 N. Y. 282; McGinley v. United States &c. Ins. Co., 8 Daly (N. Y.) 390; Fraternal &c. Ins. Co. v. Applegate, 7 Ohio St. 292; Dial v. Valley &c. Asso., 29 S. Car. 560, 8 S. E. 27; Mobile &c. Ins. Co. v. Morris, 3 Lea (Tenn.) 101; Southern &c. Ins. Co. v. Booker, 9 Heisk. (Tenn.) 606; Valley &c. Asso. v. Treewalt, 79 Va. 421; Schwarzbach v. Ohio Valley &c. Union, 25 W. Va. 622; Cahen v. Continental &c. Ins. Co., 69 N. Y. 300, 309. But this rule does not apply to declarations made

by the holder of a mutual bebefit certificate; Thomas v. Grand Lodge &c., 12 Wash. 500, 41 Pac. 882; Smith v. National &c. Soc., 51 Hun (N. Y.) 575.

325 Swift v. Massachusetts &c. Ins. Co., 63 N. Y. 186; Edington v. Mutual &c. Ins. Co., 67 N. Y. 185; Travelers' Ins. Co. v. Mosley, 8 Wall. (U. S.) 397; Aveson v. Kinnaird, 6 East 188.

dental disorder or ailment affecting any one of the organs inquired about, nor is it sufficient to prove an ailment or disorder which lasted only for a brief period and that was unattended by substantial injury, inconvenience or prolonged suffering. To be sufficient to avoid the policy the proof must show that there was "some affection or ailment of some one or more of the organs inquired about in the application, which ailment was of a character so well defined and marked as materially to derange for a time the function of such organ." Nor is it necessary to prove the knowledge of the applicant of such diseased or disordered condition. If the diseased condition is proved to have existed according to the rule stated, the falsity of the warranty sufficient to avoid the policy is established regardless of the applicant's knowledge of his condition.328 Courts will not permit a forfeiture of the policy, nor suffer a defeat and recovery after death if it is shown that in some remote time in the past the assured was, whether conscious or unconscious of the fact, afflicted with some one of the diseases enumerated in the application to which he was required to make a categorical answer, and which he represented to be true.329

§ 2379. Insurable interest-Necessary.-It is absolutely essential to support a policy of insurance in favor of one person on the life of another that the former have an insurable interest in the life of the latter. In the absence of an insurable interest such contracts are regarded as wagering contracts, and are declared to be void. The reason

329 Continental &c. Ins. Co. V. Young, 113 Ind. 159, 15 N. E. 220; Illinois &c. Ben. Society v. Winthrop, 85 Ill. 537; Mutual &c. İns. Co. v. Wise, 34 Md. 582; Brown v. Metropolitan &c. Ins. Co., 65 Mich. 306, 32 N. W. 610; Pudritzky v. Supreme Lodge &c., 76 Mich. 428, 43 N. W. 373; Hann v. National Union, 97 Mich. 513, 56 N. W. 834; Peacock v. New York &c. Ins. Co., 20 N. Y. 293; Fitch v. American &c. Co., 59 N. Y. 557; Cushman v. United States &c. Ins. Co., 70 N. Y. 72; Grattan v. Metropolitan L. Ins. Co., 92 N. Y. 274; Ritzler v. World &c. Ins. Co., 42 N. Y. Super. 409; French v. Mutual &c. Asso., 111 N. Car. 391, 16 S. E. 427; Knights of

Pythias v. Rosenfeld, 92 Tenn. 508, 22 S. W. 204; Insurance Co. v. Lauderdale, 94 Tenn. 622, 30 S. W. 732; Rand v. Life Assur. Soc., 97 Tenn. 291, 37 S. W. 7; Knights of Pythias v. Cogbill, 99 Tenn. 28, 41 S. W. 340; Powers v. Northeastern &c. Asso., 50 Vt. 630; Connecticut &c. Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 Sup. Ct. 119; Fidelity &c. Asso. v. Miller, 92 Fed. 63; Baumgart v. Modern Woodmen &c., 85 Wis. 546, 55 N. W. 713.

829 Moulor v. American &c. Ins. Co., 111 U. S. 335, 4 Sup. Ct. 466; Fidelity &c. Asso. v. Jeffords, 107 Fed. 402; Northwestern &c. Ins. Co. v. Woods, 54 Kans. 663, 39 Pac. 189.

for this rule was stated by the New York court thus: "Policies without interest, upon lives, are more pernicious and dangerous than any other class of wager policies; because temptations to tamper with life are more mischievous than incitements to mere pecuniary fraud.”

330

§ 2380. Incurable interest-Nature.-The Supreme Court of the United States in defining insurable interest say: "It is not easy to define with precision what will in all cases constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated generally, however, to be such an interest arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation; for a parent has an insurable interest in the life of his child, and a child in the life of his parent, a husband in the life of his wife, and the wife in the life of her husband. In all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity to expect some benefit or advantage from the continuance of the life of the assured."331 This principle, substantially, is held by courts in other jurisdictions. 332 Of the nature of this interest the New Jersey court has said: "The interest required need not be such as to constitute the basis of any direct claim in favor of the plaintiff upon the party whose life is insured; it is sufficient if an indirect advantage may result to the plaintiff from his life, and therefore the reciprocal interests of husband and wife, parent and child and brother and sister, in the lives of each other, are sufficient to support the contract."333 It is expressly held in some jurisdictions that an insurable interest must be a pecuniary interest regardless of the relationship between the assured and the beneficiary.334 In the absence of both the con

330 Ruse v. Mutual &c. Ins. Co., 23 N. Y. 516; Franklin &c. Ins. Co. v. Hazzard, 41 Ind. 116.

331 Warnock v. Davis, 104 U. S. 775; Cammack v. Lewis, 15 Wall. (U. S.) 643.

332 Gilbert v. Moose, 104 Pa. St. 78; Corson's Appeal, 113 Pa. St. 445, 6 Atl. 213; U. B. Mutual Aid Soc. v.

McDonald, 122 Pa. St. 324, 15 Atl. 439; Trinity College v. Travelers' Ins. Co., 113 N. Car. 244, 18 S. E. 175; Keystone &c. Asso. v. Norris, 115 Pa. St. 446, 8 Atl. 638.

233 Trenton v. Mutual &c. Ins. Co., 24 N. J. L. 576.

334 Continental &c. Ins. Co. v. Volger, 89 Ind. 572; Amick v. Butler,

tractual relation and of blood or marriage, there can be no insurable interest regardless of the good object, motive or intention of the parties,335

§ 2381. Insurable interest-Proof of relationship.-The question naturally arises as to whether or not the mere proof of relationship is sufficient proof of an insurable interest in the absence of all other evidence. The authorities are not agreed upon the proposition. It was said by the Connecticut court: "We think it a correct legal proposition, that the mere relationship of a brother is not such an interest as will support a policy of insurance. The interest required to make such a contract valid must be of a pecuniary nature.”336 And the Supreme Court of Maine said: "But a father, as such, has no insurable interest, resulting merely from that relation, in the life of a child of full age. "337 But a Maine case holds the doctrine that a father has such an interest in the life of a minor child as would support a policy of insurance on its life.3: 338 The Supreme Court of Illinois held "that the mere relation of father and son did not constitute an insurable interest of the son in the life of the father, unless the son had a well founded or reasonable expectation of some pecuniary advantage to be derived from the continuance of the life of the father." 9339 The rule as deduced from the authorities may be said to be that the mere proof of relationship will be of little importance except as it may tend to give rise to circumstances which justify a well founded expectation of pecuniary advantage from the continuance of the life insured, or risk of loss from its termination.340 On this subject the Supreme Court

111 Ind. 578, 12 N. E. 518; Burton v. Connecticut &c. Ins. Co., 119 Ind. 207, 21 N. E. 746; People's Mut. &c. Soc. v. Templeton, 16 Ind. App. 126, 44 N. E. 809; Cisna v. Sheibley, 88 Ill. App. 385; Chicago &c. Soc. v. Dyon, 79 Ill. App. 100; Rombach v. Piedmont &c. Ins. Co., 35 La. Ann. 233; Mitchell v. Union Life Ins. Co., 45 Me. 104; Lord v. Dall, 12 Mass. 115; Charter Oak &c. Ins. Co. v. brant, 47 Mo. 419, 424; Gambs v. Covenant &c. Ins. Co., 50 Mo. 44, 48; Reserve &c. Ins. Co. v. Kane, 81 Pa. St. 154; Keystone &c. Asso. v. Norris, 115 Pa. St. 446, 8 Atl. 638; Hal

ford v. Kymer, 10 B. & C. 724; 3 Kent Com. 368.

335 Trinity College v. Travelers' Ins. Co., 113 N. Car. 244, 18 S. E. 175; U. B. Mutual &c. Soc. v. McDonald, 122 Pa. St. 324, 15 Atl. 439.

330 Lewis V. Phoenix &c. Ins. Co., 39 Conn. 100; Rombach v. Piedmont &c. Ins. Co., 35 La. Ann. 233.

237 Mitchell v. Union Life Ins. Co., 45 Me. 104.

338 Mitchell v. Union Life Ins. Co., 45 Me. 104.

35 Guardian &c. Ins. Co. v. Hogan, 80 I11. 35.

340 Guardian &c. Ins. Co. v. Hogan,

of Indiana say: "The insurable interest in the life of another must be a pecuniary interest. Some of the authorities tend in the direction that near relationship, as between parent and child, is a sufficient foundation upon which to rest an insurable interest. But this view is not sustained by the weight of authority." In this case it was held that in an action by a daughter on a policy on the life of her mother, she must allege and prove a pecuniary interest in the life of the mother.341 The Massachusetts court has not decided expressly whether proof of relationship alone is sufficient, but the cases generally show such interest aside from the relation.842

§ 2382. Insurable interest-Implied from relation. There may be certain cases in which the insurable interest will be implied or presumed from relationship; and this implication or presumption arises when such relationship is proved. The rule deduced from the books is thus stated by the Louisiana court: "When the insurable interest arises, or is implied from relationship, it will be deemed to exist when the relationship is such that the insuree has a legal claim upon the insured for service or support. Even though such legal claim does not exist, yet where from the personal relations of the two, and the kindness and good feeling displayed from the insured to the insuree, the latter has a reasonable right to expect some pecuniary advantage from the continuance of the life of the former, or to fear loss from his death, an insurable interest will be held to exist." 99843 The Supreme Court of Illinois concedes that some authorities tend in the direction "that the mere relationship, as between father and son reciprocally, is a sufficient foundation upon which to rest an insurable interest." In an early case in Massachusetts the court held to the rule that there must be an insurable interest, and where it was shown that a sister without property who had been for several years supported and educated by her brother, and who stood toward her in place

80 Ill. 35; Insurance Co. v. Bailey, 13 Wall. (U. S.) 619; May Insurance, § 107; Bliss Life Insurance, § 31.

341 Continental &c. Ins. Co. v. Volger, 89 Ind. 572; People's &c. Soc. v. Templeton, 16 Ind. App. 126, 44 N. E. 809.

342 Lord v. Dall, 12 Mass. 115; Loomis v. Eagle &c. Ins. Co., 6 Gray

(Mass.) 399; Forbes v. American &c. Ins. Co., 15 Gray (Mass.) 249; Stevens v. Warren, 101 Mass. 564.

$43 Rombach v. Piedmont &c. Ins. Co., 35 La. Ann. 233; Bliss Life Insurance, § 31; May Life Insurance, §§ 74, 106.

344 Guardian &c. Ins. Co. v. Hogan, 80 Ill. 35.