Action to recover the amount of loss under an insurance policy, issued by the defendant to' the plaintiffs June 20, 1900, and insuring them for five years against loss by fire on their dwelling house. The plea and notice raise *153the question of a surrender and cancellation of the policy. The property was destroyed by fire July 8, 1901.
It was provided in the policy that it might be cancelled at any time at the request of the insured, or by the company by giving the insured five days’ notice, and that if it should be ■cancelled, or become void, the premium having been actually paid, the unearned portion should be returned on surrender of the policy, 'the company retaining the customary short rate, except that, if the policy was cancelled by the company by giving notice, it should retain only the pro rata premium.
February 20, 1901, Mary Larkin, one of the plaintiffs, surrendered the policy to the defendant’s agent and was paid .$5.40 as return premium, and the policy was cancelled. The plaintiffs claim that this act was void by reason, as they allege, of the plaintiff’s want of mental capacity to- understand the nature and consequences of her acts, and that the policy was therefore in force when1 the fire occurred.
The policy was by its terms to continue in force until the expiration of the risk unless sooner terminated by the exercise of the option of one of the parties, as provided, or by the agreement of both. There is a manifest. distinction, as claimed by the defendant and as laid down by the authorities cited, between the abrogation of an insurance contract by agreement of the parties and its cancellation by one party in the exercise of a right reserved in the contract. Ostrander on Fire Ins., 2nd Ed. s. 17; Massasoit Steam Mill Co. v. Western Assurance Co., 125 Mass. 110. But these authorities do not support the defendant’s position, that the plaintiff, though insane but having no guardian-, could and did exercise the right of option, and that the defendant was bound to- respect it and return the premium. It may not have required as much mental capacity to perform this voluntary act as it did to *154make the insurance contract, but some capacity was required to exercise the right reserved in the policy; therefore the court properly submitted to1 the jury to decide — not whether the plaintiff was sane or insane — but whether, by reason of mental disease, she was incapable of understanding the nature- and consequences of her act. As the jury found her incapable, the surrender was not her act.
The exceptions state that the defendant made no- other question- during the trial than that of Mjrs. Larkin’s mental capacity with reference to the exercise of this right.
Judgment afdrme'd.