The trial court should have ruled as requested by the defendant, that the action could not be maintained.
The policy having lapsed for non-payment of overdue premiums, the insured signed certificates of insurability for reinstatement of the policy, the material part of which is of the following tenor, “ I being the person on whose life the within mentioned Policy was issued by the John Hancock Mutual Life Insurance Company . . . hereby request said Company to reinstate said policy which under its terms is now lapsed, upon condition of the truth of the following statements and agreements. Such reinstatement, if made, shall revive any indebtedness to said Company and the lien therefor, existing under said policy at the date of lapse. I hereby certify that I am now in good health and that during the time, including the grace period, since the premium now in default became due, I have had no injury, ailment, illness or disease, nor symptoms of such, neither have I consulted a physician, except as noted below. (Enter on dotted lines any exceptions to the foregoing statements.) None. I have stated all exceptions.” The uncontradicted evidence, as the judge instructed the jury, showed, that between July 8, 1917, and August 15, 1917, and between January 8, 1918, and February 12, 1918, the date when the last two certificates were respectively submitted, the insured had been ill and had been treated more or less constantly by a physician for epilepsy from which he never recovered. The statements in the applications in question therefore were false, and ordinarily, the insured having failed to comply with the precedent conditions named in the certificate or application, the policy was not revived as a living enforceable contract under which the plaintiff as the beneficiary could recover. Miles v. Connecticut Mutual Life Ins. Co. 3 Gray, 580. Cobb v. Covenant Mutual Benefit Association, 153 Mass. 176. White v. Provident Savings Life Assurance Society of New York, 163 Mass. 108. Fondi v. Boston Mutual Life Ins. Co. 224 Mass. 6. Ballard v. Globe & Rutgers Fire Ins. Co. 237 Mass. 34.
*376The plaintiff, however, contends, that the case is taken out of this general rule and is governed by St. 1907, c. 576, § 21, that “ No oral or written misrepresentation or warranty made in.the negotiation of a contract of policy of insurance by the assured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive or unless the matter misrepresented or made a warranty increased the risk of loss,” which is a re-enactment of R. L. c. 118, § 21. See G. L. c. 175, § 186. But the applications were not negotiations for a contract of insurance. The policy had been issued and delivered. It was not a new contract which the insured was negotiating, but the revival of a contract under the conditions prescribed by the company and accepted by him. The revival if accomplished could only restore the insured to all his rights under the policy, which had not been surrendered, as if he never had been in default. Everson v. General Accident, Fire & Life Assurance Corp. Ltd. 202 Mass. 169, 172.
The case at bar cannot be distinguished in principle from Holden v. Metropolitan Life Ins. Co. 188 Mass. 212, decided when § 21 of R. L. c. 118, was in force. . In that case the application for revival of a lapsed policy contained an inquiry whether the insured had been rejected by other insurance companies, which was shown by uncontradicted evidence to have been answered falsely. It was held that the rulings of the trial judge, that the application for revival was not of itself a policy of insurance, and that the insured prior to the application having been rejected for insurance .in other companies the plaintiff could not recover, were correct.
The exceptions must be sustained and judgment entered for the defendant.
So ordered.