DOUGLAS, J., dissenting. *Page 279 This action is prosecuted to enforce (390) the collection of an insurance policy, issued to C. L. Tate on 16 December, 1890, for the benefit of the plaintiff. The annual premium on this policy was $24.42, to be paid on 16 December of each succeeding year, which payment continued the policy for one year from the date of said payment, at which time the policy became void if the premium was not paid. But it was a mutual beneficiary association, in which the assured participated in the profits, and when a policy became forfeited for the nonpayment of premiums, if there were accumulated profits belonging to the assured, they were applied to the payment of such premiums, and gave the assured the benefit of an extension of the policy for such time as the accumulated profits paid for. But it gave him no right to participate in the accumulations after the forfeiture for nonpayment.
The last payment of premiums was on 16 December, 1893, which continued the policy, with all its benefits, until 16 December, 1894, when the next premium became due. At that time there was due the assured from the accumulated profits (called the reserve) the sum of $41.36. This amount, if applied to the payment of premiums, would have extended the policy until after the death of the assured.
But the policy contained other terms and conditions which have to be considered. It allowed a party to insure by payment in cash of seventy per cent of the premium and the other thirty per cent in a certificate of indebtedness to the company, and this policy was taken out on that plan. It is claimed by the defendant that these certificates of indebtedness should be deducted from the $41.36 of accumulations, and only the balance, after deducting this indebtedness (and some other expenses which we do not discuss lest it might produce confusion), should be applied to extending the policy. And it is admitted that if this is done the time of extension had expired (391) before the death of the assured. So this is the question and forms the contention between the parties, and makes it a question of law depending upon the construction of the policy.
It has been held in Insurance Co. v. Dutcher, 95 U.S. 269, *Page 280 in an action on a policy very much like the one under consideration in that respect, that the notes or certificates of indebtedness to the company for the thirty per cent of the premium were payments to the company, and so we hold in this case. And if the policy in other respects was like the one involved in Insurance Co. v. Dutcher we would hold that the plaintiff should recover, and reverse the judgment appealed from. In that case, as the defendant does in this case, the insurance company sought to have the surplus applied first to the payment of the premium notes due it, and only the balance applied to the extension of the policy. But the Court in that case refused to allow that to be done for the reason that it was not provided for in the policy.
But the insurance company, since that decision and before the policy sued on was taken out, had changed the wording of its policies, and as it seems to us the provisions of its policies (this policy), so as to meet the difficulty pointed out in the case of Insurance Co. v. Dutcher, supra.
It is provided in this policy that these notes or certificates of indebtedness, given in part payment of premiums, shall be a lien on the policy, and only "the net reserve less any indebtedness to the company on the policy" shall be applied to the purchase of a nonparticipating policy, that is, to the extension of the policy. This, it seems to us, distinguishes it from Insurance Co. v. Dutcher, and this view is fully sustained in Bank v. Ins. Co., 84 Fed., 122.
The defendant in this case being the same defendant as in that case, and the policy there sued on being the same as (392) the one sued on in this case, the court below so held, and, as we fail to see the error complained of, the judgment is
Affirmed.