ON PETITION FOR REHEARING. Appellees, on petition for rehearing, complain that we have erroneously stated the provisions of the policy in suit as to the beneficiaries. In order that appellees may have the full benefit of the provisions of both the application and the policy, we state such provisions as follows:
It was provided in the application of the insured which was made a part of the policy and insurance contract, and which policy was made a part of the complaint by exhibit, that the policy should be payable "to my children T.B. Leonard, Mary C. Campbell, Sally T. and Otto C. Leonard share and share alike, Minnie L. Cabanni if living at my death otherwise to my executor, administrators or assigns — It being expressly understood and agreed that I reserve the right * * * to change any beneficiary or beneficiaries named by me," etc. The policy itself provided that it should be payable "to his children, Mary L. Campbell, Minnie L. Cabanni, Sally T., Otto C. and T.B. Leonard, equally survivors or survivor, should none survive, then to the assured's executors, administrators, or assigns, subject to the right of the assured to change the beneficiary." It thus appears that the proceeds of the policy were payable in the alternative to the beneficiaries if they survive the insured, otherwise to his estate.
Appellees contend with much earnestness that their interest in the policy was a vested interest, and that, therefore, the acts and admissions of the insured were not binding upon them, 17. citing to sustain their contention, Pape v. Pape (1918), 67 Ind. App. 153, 119 N.E. 11, upon which they rely with much confidence. But the facts of that case are so different from the ones here involved that it can have but little weight in determining the questions here presented. In *Page 466 that case, the court says, on page 168, that: "The policy in suit contained no provision for a change of beneficiary. Caroline therefore took a vested interest therein, which terminated upon her predeceasing." Here, there is definite provision for change of beneficiaries. In that case, the insured, or his estate, in any event, had no interest in the proceeds of the policy. Here, the insured, alternatively with the beneficiaries, had a contingent interest in the proceeds of the policy. In that case, the controversy was between those claiming to be beneficiaries, as to who was entitled to the proceeds of a valid living policy. Here, the offered evidence went to the very life of the policy, as to whether it had lapsed. The evidence offered and refused was of declarations made by the deceased against his own contingent interest. That such declarations against interest are admissible, see Keesling, Treasurer, v. Powell (1898), 149 Ind. 372, 49 N.E. 265; Tyres v. Kennedy (1891), 126 Ind. 523, 26 N.E. 394;Royse, Exr., v. Leaming (1880), 72 Ind. 182. As was said in the principal opinion, the policy in this case was acquired without the knowledge of the beneficiaries, and, to the extent that it was kept alive, it was so kept by the performance of its conditions by the insured. The policy remained in the possession of the insured until he died and the beneficiaries had nothing whatever to do with the payment of the premiums thereon. Under such circumstances, evidence of the insured's declarations was competent. Authorities very much in point as to the admissibility of such evidence are: Manhatten Life Ins. Co. v. Myers (1900), 109 Ky. 372, 59 S.W. 30; Atlanta Mutual Ins. Co. v.Price (1923), 97 (Ala.) So. 826; Ogden v. Sovereign, etc. (1907), 78 Neb. 804, 111 N.W. 797, 113 N.W. 524.
Rehearing denied. *Page 467