"This is a suit brought by the appellee, Annie E. English, against appellant, the New York Life Insurance Company, to recover upon a policy issued by appellant upon the life of her husband, Wm. E. English. It is conceded by both parties that under the contract of insurance the policy sued upon shall be construed according to the laws of the state of New York. The facts shown by the evidence admitted under proper allegations in the pleadings of the party which we deem pertinent to the question of law to be solved are as follows:
"On the 18th day of April, A. D. 1899, appellant, the New York Life Insurance Company, a foreign corporation duly authorized to do business in the state of Texas, issued its policy of insurance upon the life of W. E. English, whereby it agreed to pay to Annie E. English (appellee), wife of the insured, or, in the event of her prior death, to the insured's executors, administrators, or assigns, at the home office of the company in the city of New York, the sum of $3,000, payable in ten equal annual installments; the first installment to be paid immediately
upon the receipt and approval of proofs of the death of Wm. E. English, of Carrizo Springs, in the county of Dimmitt, state of Texas, and the subsequent installments to be paid annually thereafter. The policy shows upon its face the following stipulations and agreements: `(1) And the company agrees that said installments may be commuted for a single payment of $2,582.00, payable when the first installment becomes due, if the written consent of the insured has been filed with the company. (2) And the company further agrees that this policy shall be incontestable after it has been in force one full year, if the premiums have been duly paid. (3) This contract is made in consideration of the written application of the insured, which is a part of this contract, and in further consideration of the sum of $72.30, to be paid in advance, and the payment of a like sum on the 5th day of April of every year thereafter, until the death of said insured. (4) The special advantages, benefits, and provisions printed or written by the company on the following pages are conditions precedent, and are a part of this contract, as fully as if they were recited at length over the signatures hereto affixed.' The following conditions of said policy of insurance appear on the back thereof, and are, by the terms of the policy, a part of the same: `(2) Grace in Payment of Premiums. A grace of one month will be allowed in payment of premiums after this policy shall have been in force three months, subject to an interest charge at the rate of 5% per annum for the number of days during which the premium remained due and unpaid. During the month of grace this policy remains in force, and the unpaid premium, with interest as above, remains an indebtedness to the company, which will be deducted from the amount payable under this policy if the death of the insured shall occur during the month. (3) Reinstatement in Event of Lapse. This policy will be reinstated on written application therefor within six months after nonpayment of any premium, subject to evidence of good health satisfactory to the company, and payment of premiums to date of reinstatement with interest at the rate of 5% per annum. (4) General Regulations. No agent has power in behalf of the company to make or modify this or any contract of insurance, to extend the time for paying any premium, to waive any forfeiture, or to bind the company by making any promise, or making or receiving any representation or information. The powers can be exercised only by the president, vice president, second vice president, actuary, or secretary of the company, and will not be delegated. All premiums are due and payable at the home office unless otherwise agreed in writing, but may be paid to agents producing receipts signed by the president, vice president, second vice president, actuary, or secretary, and countersigned by such agent. If any premium is not paid on or before the day when due, this policy shall become void, and all payments previously made shall remain the property of the company, except as hereinbefore provided. Proofs of death must be furnished to the company at the home office within one year after the death of the insured, which proofs shall comprise satisfactory statements establishing the claim. Such statements must fully comply with the company's forms in use at the time of the death of the insured. Any indebtedness to the company, including any balance of the current year's premium remaining unpaid will be deducted in any settlement of this policy or of any benefit thereunder.'
"The following portion of the statutory laws of the state of New York was pleaded and introduced in evidence: `Chap. 218. An act to amend the insurance law and the act amendatory thereof, relative to capital and surplus. Section ninety-two of said chapter is hereby amended so as to read as follows: "Sec. 92. No Forfeiture of Policy without Notice. No life insurance corporation doing business in this state shall, within one year after the default in payment of any premium, installment or interest, declare forfeited or lapsed any policy hereafter issued or renewed and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall such policy be forfeited, or lapsed, by reason of non-payment, when due of any premium, interest or installment or any portion thereof required by the terms of the policy to be paid, within one year from the failure to pay said premium, interest or installment, unless a written or printed notice stating the amount of such premium, interest, installment or portion thereof due on such policy, the place where it shall be paid, and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured or the assignee of the policy, if notice of the assignment has been given to the corporation, at his or her last known post-office in this state, postage paid by the corporation, or by any officer thereof, or person appointed by it to collect such premium, at least fifteen and not more than forty-five days prior to the day when the same is payable. The notice shall also state that unless such premium, interest, installment or portion thereof, then due, shall be paid to the corporation, or to the duly appointed agent or person authorized to collect such premium by or before the day it falls due, the policy and all payments thereof will become forfeited, except as to the right to a surrender value or paid up policy as in this chapter provided. If the payment demanded by such notice shall be made within its time limited therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment
and no such policy shall, in any case, be forfeited or declared forfeited or lapsed until the expiration of thirty days after mailing of such notice. The affidavit of any officer, clerk or agent of the corporation or of any one authorized to mail such notice that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be presumptive evidence that such notice has been duly given. No action shall be maintained to recover under a forfeited policy unless the same is instituted within one year from the day upon which default was made in paying the premium, installment, interest or portion thereof, for which it is claimed that forfeiture ensued."' A premium on the policy matured April 5, 1900. On the 14th day of March prior thereto, in compliance with the above statute, the appellant mailed to Wm. E. English at Carrizo Springs, Texas, his post-office address, the following printed notice: `Bring this card with you when paying premium or inclose it with your remittance. The New York Life Insurance Company hereby gives notice that on policy No. 942,234 a premium of $72.30 will be due April 5, 1900, provided the policy be then in force. This premium will be due and payable at the home office, 346 and 348 Broadway, New York, to the cashier of the company, or R. H. Mitchell, cashier, Trust Building, Dallas, on the production of the official receipt therefor. Unless such premium then due shall be paid to the company or a duly appointed agent or person authorized to collect such premium on or before the day it falls due, such policy and all payments thereon will become forfeited and void, except as to the right of a surrender value or paid-up policy which may be provided in said policy or by statute. This notice is required by the laws of New York and does not modify any terms of the contract. [Signed] Jno. A. McCall,...
