(dissenting). I dissent from so much of the opinion of Mr. Justice Merrell as holds the second defense to be good. There are no allegations, contained in that defense, of fraud in the inception of the policy. The paragraphs of the first defense incorporated by reference likewise contain no such averments. As I read the second defense, it is predicated upon the legal proposition that the fact of the murder of the insured by the beneficiary necessarily constitutes a defense in an action by the estate of the insured. The overwhelming weight of authority is to the contrary. (Cleaver v. Mutual Reserve Fund Life Assn., L. R. [1892] 1 Q. B. 147; New York life Ins. Go. v. Davis, 96 Va. 737; 32 S. E. 475; Schmidt v. Northern life Assn., 112 Iowa, 41; Knights & Ladies of Honor v. Menkhausen, 209 Ill. 277; Anderson v. Life Ins. Co. of Va., 152 N. C. 1; Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132; Equitable life Assur. Soc. v. Weightman, 61 Okla. 106; Robinson v. Metropolitan Life Ins. Co., 69 Penn. Super. 274; Murchison v. Murchison, 203 S. W. [Tex. Civ. App.] 423; Welch v. Travelers’ Ins. Co., 178 N. Y. Supp. 748; Kascoutas v. Federal Life Ins. Co., 193 Iowa, 343; 185 N. W. 125; Henry v. Knights & Daughters of Tabor, 156 Ark. 165; Slocum v. Metropolitan life Ins. Co., 245 Mass. 565; Hewitt v. Equitable life Assur. Soc., 8 F. [2d] 706.)
For these reasons I think the order appealed from should be affirmed.
O’Malley, J., concurs.
Order modified by denying motion to strike out second defense, and as so modified affirmed, with ten dollars costs and disbursements to defendant New York Life Insurance Company.