Wilkie v. New York Life Ins. Co.

• Decision Date: 19 February 1908
• Citation: 60 S.E. 427,146 N.C. 513
• Parties: WILKIE v. NEW YORK LIFE INS. CO.
• Court: North Carolina Supreme Court

60 S.E. 427

146 N.C. 513

WILKIE v. NEW YORK LIFE INS. CO.

Supreme Court of North Carolina

February 19, 1908

Appeal from Superior Court, Rutherford County; Guion, Judge.

Action by A. D. Wilkie against the New York Life Insurance Company on a life policy. From a judgment for defendant, plaintiff appeals. Affirmed.

Though a life policy was dated and issued and the first premium paid December 2d, the subsequent premiums were due November 22d as affecting the expiration of an extension of insurance on a failure to pay the third premium, where the policy stated that it was issued in consideration of premiums to be paid on November 22d yearly until 20 full years' premiums should be paid; that, if insured should be living November 22, 1921 "the end of the 20-year accumulation period," and if the premiums shall have been paid "to that date," insurer would "then" apportion to the policy its share of the accumulated profits, with any other benefit to which insured should be entitled.

Under a life policy making the annual premiums due in advance on a specified day, and allowing 30 days of grace for such payment, the premiums are paid to the next due date, and not to the end of the 30 days of grace, as affecting the expiration of an extension of insurance on a failure to pay a premium.

The plaintiff brought this action to recover $2,000, the amount of an insurance policy issued by the defendant upon the life of her intestate for her benefit. The policy contains the following provisions:

(1) "This policy participates in the profits of the company as herein provided. If the insured is living on the twenty-second day of November, nineteen hundred and twenty-one, which is the end of the twenty-year accumulation period of this policy, and if the premiums have been duly paid to that date and not otherwise, the company will then apportion to this policy its share of the accumulated profits, and the insured shall then have the option of one of the following five accumulation benefits:" Then follows the five options given to the beneficiary for the settlement of the policy, all of which are based in part upon a participation in the profits.

(2) "At the end of the accumulation period the company will send to the insured a written statement of the results under the five accumulation benefits. If a selection by the insured of one of these benefits is not received by the company within three months thereafter, it will be assumed that the insured desires to continue this policy under the first benefit, and the cash profits apportioned to this policy will be held as a credit, with interest at such rate per annum as the company may declare on such funds, and shall be payable as the insured may direct, in one sum or in not more than ten installments. The company guarantees that the entire cash value of this policy at the end of the accumulation period shall consist of, first, $1,008 (one thousand and eight dollars); second, the cash profits then apportioned by the company."

(3) "The insured may change the payment of the proceeds of this policy from payment in one sum, as provided on the first page hereof, to payment by annual installments, as provided on the fourth page hereof. This policy is automatically nonforfeitable from date of issue, as follows: If any premium is not duly paid, and if there is no indebtedness to the company, this policy will be indorsed for the amount of paid-up insurance specified in column 2 of the table on the second page hereof, on written request therefor within six months from the date to which premiums were duly paid. If no such request is made, the insurance will automatically continue from said date for the amount stated at the head of column 3 of said table ($2,000) for the term specified therein (2 years and 2 months) and no longer."

(4) "If this policy is continued beyond the accumulation period, profits shall be apportioned at the end of every five years thereafter during the continuance of this policy, if all premiums have been duly paid to end of accumulation period."

(5) "If any premium is not paid on or before the day when due, or within the month of grace, the liability of the company shall be only as hereinbefore provided for such case."

(6) "Any indebtedness to the company, including any balance of the premium for the insurance year remaining unpaid, will be deducted in any settlement of this policy, or of any benefit thereunder."

(7) "This policy is incontestable from date of issue."

(8) "This agreement is made in consideration of the sum of sixty-three dollars and sixty-six cents, the receipt of which is hereby acknowledged, and of the payment of a like sum on the twenty-second day of November thereafter, in every year during the continuance of this policy, until twenty full years' premiums shall have been paid."

The policy is dated December 2, 1901. There is indorsed on the policy a notice to the insured and the beneficiary that the insurance under the policy may be collected by direct application to the home office of the company, 346 Broadway, New York City, together with the name of the insured, a statement of the number of the policy, the amount thereof ($2,000), the annual premium, and then the following: "Insurance year begins on November 22d."

The parties waived a trial by jury, and agreed upon the following facts: "(1) The policy sued on in this case was issued upon the life of Clarence D. Wilkie. (2) The premiums due for the first two full years of said policy were paid, but no further premium payments were made upon said policy. (3) The insured, Clarence D. Wilkie, died on the 26th day of January, 1906. If the court is of the opinion that the plaintiff is entitled to recover, then judgment shall be rendered in favor of the plaintiff for two thousand dollars, less the sum of one hundred and fifty-one dollars and seventy-four cents ($151.74) unpaid premiums; otherwise for the defendant."

Proofs of intestate's death were duly made, and payment of the insurance demanded of the defendant, and refused by it. The court, Judge Guion presiding, being of opinion with the defendant, rendered judgment in accordance with the agreement. The plaintiff excepted and appealed.

McBrayer, McBrayer & McRorie, for appellant.

Gallert & Carson, for appellee.

WALKER J.

The original policy was filed in this court for our inspection, and the decision of the case turns upon its true construction. The plaintiff contends that as the policy was issued on the 2d day of December, 1901, and as the two full premiums for two years had been paid, this carried the insurance to December 2, 1903, and that, by the terms of the contract, the insurance was automatically continued from the latter date for two years and two months, which would carry it to February 2, 1906, and, as the insured died on January 26, 1906, the policy was in full force and effect at the time of his death. The defendant, on the contrary, insists that the date from which the count of time must be made is November 22, 1901, according to the stipulations of the contract and the notice to the insured at the time of the delivery of the policy to him that the insurance year would begin November 22d, which date in 1901 was the beginning of the first insurance year, and that, this being so, the insurance, when extended according to the contract, expired January 22, 1906, just four days before the death of the insured. As between these two contentions, we are with the defendant, and we think, therefore, that the judge was right in his decision upon the case agreed.

The policy provides that, if no request for paid-up insurance is made, the policy will automatically continue in force for two years and two months from the date to which premiums are duly paid. The question, then, is presented, to what date had premiums been fully paid under the terms of this policy? Manifestly, as we read the contract, and in view of the law applicable to such cases, to November 22, 1903. The premiums were payable in advance, and they had been paid, according to the facts agreed upon, for two full years. In view of the plain language of the policy, it can make no difference that the policy was not issued until December 2, 1901. We find this provision in the policy: "This agreement is made in consideration of the sum of sixty-three dollars and sixty six cents, the receipt of which is hereby acknowledged, and of the payment of a like sum on the twenty-second day of November thereafter, in every year during the continuance of this policy, until twenty full years' premiums shall have been paid." It is made perfectly clear that the parties intended to make November 22d the beginning of each insurance year and the date to which the advance premiums should be paid, when the clause just quoted is read in connection with a prior one in the policy, which is as follows: "This policy participates in the profits of the company as herein...