Northwestern Mut. Life Ins. Co. v. Lowry's Adm'x
| Decision Date | 01 December 1892 |
| Parties | Northwestern Mut. Life Ins. Co. v. Lowry's Adm'x. |
| Court | Kentucky Court of Appeals |
Appeal from Louisville law and equity court.
"Not to be officially reported.
Action by Richie Norton, administratrix of Mary B. Lowry, deceased against the Northwestern Mutual Life Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed.
September 15, 1868, a contract of life insurance was made between the Northwestern Mutual Life Insurance Company, a corporation created and having its principal business office in the state of Wisconsin, and Mary B. Lowry, a resident of the state of Alabama, by which, in consideration of an annual premium in advance, consisting of an annual premium note of $192.60, the interest on which was to be paid at date of maturity of the annual premium, and of the semiannual cash premium of $144.35, to be paid on 15th day of September and March in every year during first 10 years of continuance of the policy, the company agreed to assure her life for the use of herself, her heirs or assigns, in the amount of $5,000, for the term of 10 years from date; also that at each distribution of the surplus, after three years from date of policy, a due proportion of such surplus on each and every year's business during continuance of the policy would be returned to her. The company further agreed that if default should be made in payment of any premium it would pay, as above agreed, as many tenth parts of the original sum assured as there might have been complete annual premiums paid at the time of such default; but that in order to secure such proportion of the policy all premium notes were to be taken up, or the interest thereon paid annually, in cash, on date of the annual maturity of the premium, until the notes are canceled by returns of the surplus, or else the whole policy was to be forfeited. May 3, 1878, Mary B. Lowry died intestate at her residence in Alabama, and October 4, 1888 Richie Norton, as her administratrix and only heir at law brought this action in the Louisville law and equity court to recover of the company the sum of $1,000, and interest from September 15, 1878, alleged to be due on the policy. This is an appeal from a judgment for plaintiff for $550.95, and interest from September 15, 1878, being balance of $1,000, or two tenths of the sum for which the policy was issued, after deducting as of that date $440.05 amount of two outstanding premium notes given by the intestate.
The objection that plaintiff failed to give bond, as required by section 43, art. 2, c. 39, Gen. St., as a condition of the right of a nonresident administrator or executor of a person nonresident at time of his death to prosecute an action for recovery of a debt due such decedent, cannot now avail because, being a ground of special demurrer, it was not made in the lower court.
Equally unavailing is the objection that the alleged appointment of plaintiff as administratrix by the Alabama court is not authenticated in the manner required by law. Because no objection was made to the competency as evidence of either the certificate of the fact or of the statement of plaintiff as witness she was so appointed.
It appears that Mary B....
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