GERMAN-AMERICAN TRUST CO. ET AL. vs. TEN (Supreme Court of Colorado.) 1. INSURANCE-CHANGE OF BENEFICIARY-WILL. Where an insured holding two valid contracts of life insurance called certificates of membership, whereby on his death the insurer agreed to pay his surviving wife one-quarter and the remainder to a trust company "in trust for his children," a direction in his will that the sum due or to become due to his estate from the insurer should be applied as far as necessary on payment of an incumbrance on his house, the balance to revert to his residuary estate, without any attempt in the manner and form prescribed to change the beneficiaries, did not constitute a change of the beneficiaries named in the certificates, nor a legal or equitable transfer of the fund arising therefrom. (For other cases, see Insurance, Cent. Dig. § 1469; Dec. Dig. § 587.) 2. INSURANČE-PROCEEDS OF POLICY-PERSONS ENTITLED. And upon the death of the insured, one-fourth of the proceeds of the certificates of insurance vested in his surviving wife, and the remaining three-fourths in equal parts in his three children, and, where the wife died intestate and before her actual possession of her share of the funds, her administrator might sue for and collect it. (For other cases, see Insurance, Cent. Dig. §§ 1472-1474; Dec. Dig. § 589.) En Banc. Error to District Court, City and County of Denver; Granby Hillyer, Judge. Suit by Fred H. Ten Winkel, as administrator of the estate of Aleta Hall, deceased, and others against the Bankers' Life Company and Paul Ray Hall, and another, in which the German-American Trust Company, as administrator to collect the estate of B. R. Hall, deceased, intervened. Judgment for plaintiffs, and the intervener and defendant Paul Ray Hall bring error, and apply for a supersedeas. Application denied, and judgment affirmed. Charles F. Miller, of Denver, for Plaintiffs in Error. Tolles & Cobbey, of Denver, for Defendant in Error Fred H. Ten Winkel, as administrator, etc., and P. M. Kistler, of Colorado Springs, for Defendants in Error George M. Hall and William C. Hall. *Decision rendered, Oct. 2, 1916. 160 Pac. Rep. 188. SEABACK vs. METROPOLITAN LIFE INS. CO. (No. 10355.)* (Supreme Court of Illinois.) 1. INSURANCE-VOID POLICY-RECOVERY OF PREMIUMS. Where a policy is void from the beginning, and there is no fraud on the part of the insured, he may recover the premiums paid by him. (For other cases, see Insurance, Cent. Dig. § 459; Dec. Dig. § 198[5].) 2. INSURANCE-FORFEITURE - WAIVER-FAILURE TO RETURN PREMIUMS. The mere failure of an insurance company to return premiums on a policy void from the beginning, for breach of condition, is not a waiver of its right to forfeit the policy. (For other cases, see Insurance, Cent. Dig. §§ 534-536; Dec. Dig. § 247.) 3. INSURANCE-ACTIONS ON POLICY-BURDEN OF PROOFWAIVER OF FORFEITURE. The burden of proving a waiver or an estoppel on the part of an insurance company to forfeit a policy is on the beneficiary. (For other cases, see Insurance, Cent. Dig. § 1653; Dec. Dig. § 646[3].) 4. INSURANCE-FORFEITURE OF POLICY-WAIVER. To constitute a waiver of forfeiture of a policy, it must appear that the company expressed an intention to relinquish the defense, or that its negotiations or transactions after knowledge of the forfeiture recognized the continued validity of the policy. (For other cases, see Insurance, Cent. Dig. §§ 943-946; Dec. Dig. § 371.) 5. INSURANCE-DEFENSES-BREACH OF CONDITION - RETURN OF PREMIUMS. The return of premiums paid on an insurance policy void from the beginning is not a condition precedent to the right of the company to defend an action on the policy. (For other cases, see Insurance, Cent. Dig. § 1520; Dec. Dig. § 612[1].) 6. INSURANCE-VOID POLICY-RIGHT TO PREMIUMS. The right to recover premiums paid on an insurance policy void from the beginning is the right of the insured or her personal representative, not of the beneficiary. (For other cases, see Insurance, Cent. Dig. §§ 465-467; Dec. Dig. § 198[6].) Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Bureau County; Joe A. Davis, Judge. Action by Minnie Seaback, for whom was substituted after her death Charles Sulski, against the Metropolitan Life Insurance Company. Judgment for plaintiff was reversed by the Appellate Court, and the plaintiff appeals. Judgment of the Appellate Court affirmed. Butters & Clark, of Ottawa, for Appellant. *Decision rendered, Oct. 24, 1916. 113 N. E. Rep. 862. GIBSON ET AL. vs. 10WA LEGION OF HONOR. (No. 29922.)* (Supreme Court of Iowa.) 10. INSURANCE-PLEADING CHANGE IN CONSTITUTION. In an action on an insurance certificate, an amended petition, stating that defendant claimed, and claims, "that it had the right and authority to make said changes and so amend said constitution; that said changes were by written resolution made and adopted by said Grand Lodge at its regular meeting"-is not such an admission of legal adoption of the amendments as to discharge defendant's burden of showing compliance with various provisions of the constitution relating to amend ments. (For other cases, see Insurance, Cent. Dig. §§ 1999, 2000; Dec. Dig. § 817[1].) 11. INSURANCE-BENEFIT INSURANCE-CONSTITUTION-NOTICE OF CHANGE. Defendant's allegation that a publication containing official notice to its members, published on a date named, was mailed to plaintiff by depositing it in the postoffice, properly addressed to him at his last known address, with postage prepaid, and that he received the same in due course of the mails, was not proven by testimony of its secretary that he saw the name of plaintiff's intestate put on the mailing list, although he could not swear positively that it was mailed, and which failed to show what postoffice the paper was addressed to. (For other cases, see Insurance, Cent. Dig. § 2006; Dec. Dig. § 819[1].) 12. INSURANCE-BENEFIT INSURANCE-CHANGE IN BY-LAWS -ESTOPPEL. By seeking to excuse a nonpayment of an increased assessment on certificate of plaintiff's intestate on the ground that the change of the Constitution operated as a renunciation of the contract, plaintiffs are not estopped to assert that the changes were not lawfully made, or that their intestate did not have notice of the change, since the change is legal only if lawfully made and the required notice given; and, if the beneficiary learns there has been an unlawful change, he may assert that it is in fact illegal, and, as an additional reason, why it is illegal. (For other cases. see Insurance, Cent. Dig. § 1867; Dec. Dig. § 724[3].) 14.-INSURANCE-BENEFIT INSURANCE - BY-LAWS- NOTICE OF CHANGE. Although the members of a mutual insurance society are bound to take notice of and be governed by its laws, whether adopted prior or subsequent to the contract, it is competent for the parties to contract to stipulate what alone shall be legal notice of a change. (For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719[1].) 15. INSURANCE-BENEFIT INSURANCE — BY-LAWS — NOTICE OF CHANGE. Where a change in defendant's constitution which raised the assessment of plaintiff's intestate and scaled his certificate was not legally adopted, and legal notice thereof was not given, the intestate was under nc obligation to make or tender payment at the rate existing before the * Decision rendered, Oct. 17, 1916. 159 N. W. Rep. 639. change, since on renunciation there arose a right to elect whether to hold the insurer for damages, or to wait until the policy became payable according to its tenor, and surviving the beneficiary. (For other cases, see Insurance, Cent. Dig. § 1906; Dec. Dig. § 754.) 16. INSURANCE - MUTUAL BENEFIT INSURANCE - CERTIFICATE-FORFEITURE. Where the insurer refuses one payment, claiming his policy is forfeited, there is no forfeiture for failure to tender payment of the premium thereafter. (For other cases, see Insurance, Cent. Dig. § 1906; Dec. Dig. § 754.) 17. INSURANCE - BENEFIT ASSOCIATIONS - EXPULSION OF MEMBER. Where a benefit association attempts to expel a member and the proceedings are void for irregularity, and there is a subsequent refusal to pay dues, the failure of insured to continue to tender dues cannot prejudice his rights. (For other cases, see Insurance, Cent. Dig. § 1906; Dec. Dig. § 754.) 18. INSURANCE-BENEFIT INSURANCE-ASSESSMENTS TENDER. Where an assessment is irregular and void, insured is not required to make tender or to obtain data by which to figure out correctly what would be the proper amount to pay or tender, or take chances on his tender being sufficient, if rejected, to preserve his rights. (For other cases, see Insurance, Cent. Dig. § 1906; Dec. Dig. § 754.) 19. INSURANCE-BENEFIT INSURANCE-WAIVER. Where there was no notice to insured either of a reduction of the certificate or an increase of the assessment, there could be no waiver of the right to urge that the change was invalid, since a waiver is a voluntary relinquishment of a known right, made when in possession of all material facts affecting it, and the notice which will base a waiver or estoppel should not be inferential. (For other cases, see Insurance, Cent. Dig. § 1867; Dec. Dig. § 724[3].) 20. INSURANCE-BENEFIT INSURANCE-ILLEGAL ASSESS MENTS RATIFICATION. Payment of an illegal assessment, demanded under a change in the constitution, will not ratify the change, so that changes will not excuse a later nonpayment, unless there is evidence that the former payments were made with knowledge of the payor's rights. (For other cases, see Insurance, Cent. Dig. § 1867; Dec. Dig. § 724[3].) 21. INSURANCE-BENEFIT INSURANCE-WAIVER. A waiver, created by payment of illegal assessments, cannot estop assured from refusing to continue to pay the illegal exaction. (For other cases, see Insurance, Cent. Dig. § 1885; Dec. Dig. § 738.) 23. INSURANCE-BENEFIT INSURANCE-BURDEN OF PROOF. Where defendant pleaded a waiver and estoppel because illegal assessments were paid with full knowledge of the change, it has the burden of proving that there was such payment, and that it constituted a waiver and estoppel. (For other cases, see Insurance, Cent. Dig. § 2003; Dec. Dig § 818[1].) 24.-INSURANCE-ASSESSMENTS-CHANGE-ESTOPPEL. Defendant's allegation of estoppel to deny the legality of an assessment because three assessments had been paid with full knowledge of the change was not sustained by proof which failed to show that such payments were made at all or that the alleged payments induced any change of position on the part of the defendant, or that plaintiffs' intestate had knowledge of his rights. (For other cases, see Insurance, Cent. Dig. § 1867; Dec. Dig. § 724[3].) 26. INSURANCE - BENEFIT INSURANCE-PROOF OF LOSSNECESSITY. Where the defendant before suit denied liability on a claim of suspension, it cannot defend on the ground of delay in making proof of loss and giving notice. (For other cases, see Insurance, Cent. Dig. § 1965; Dec. Dig. § 789[2].) 28.-INSURANCE-BENEFIT INSURANCE-CONTRACT-LIMI TATIONS. Where there was no evidence offered in support of defendant's allegations that the sum named in the certificate was conditional, plaintiff is entitled to recover judgment for the full amount of the certificate; the allegations as to limitations being matters of defense. (For other cases, see Insurance, Cent. Dig. § 2002; Dec. Dig. § 817[4].) Appeal from District Court, Clinton County; A. J. House, Judge. Action at law to recover the sum of $2,000, upon a certificate of membership by defendant to Charles V. Cook. Verdict for $1,813 directed for plaintiffs. Defendant appeals. Affirmed. A. L. Schuyler, of Clinton, and Jamison, Smith & Hann, of Cedar Rapids, for Appellant. J. M. Fort, of Clinton, for Appellees. GRIMES ET AL vs. CENTRAL LIFE INS. CO.* (Court of Appeals of Kentucky.) 7. INSURANCE-REGULATION OF INSURANCE COMPANIES— SUIT FOR DISSOLUTION—STATUTORY REMEDY. Prior to 1893, the insurance business of the state was carried on without state supervision, resulting in numerous losses to stockholders and policyholders from mismanagement or fraud of promoters or officers and frequent and expensive litigation against solvent companies by irresponsible persons. The act of April 5, 1893, which now composes part of Ky. St. c. 32, art. 4, contained detailed and comprehensive provisions regulating insurance corporations. Section 628 of that article authorizes suit by a majority of the stockholders of any insurance company for its dissolution, but there is no provision for a similar suit by less than a majority or by any number of policyholders. Section 752 requires the Insurance Commissioner appointed * Decision rendered, Nov. 1, 1916. 188 S. W. Rep. 901. |