(dissenting).
Straining at the gnat of their easy differentiation, and swallowing whole the camel of their complete inappositeness, the Tax Court and the majority have, on the claimed authority of Helvering v. LeGierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996; Keller v. Commissioner of Internal Revenue, 312 U.S. 543, 61 S.Ct. 651, 85 L.Ed. 1032, and Kernochan v. United States, 29 Fed.Supp. 860, 89 Ct.Cl. 507, determined that sums payable and paid to a beneficiary under the policy terms, as insurance payable in the event of self destruction, were not so paid. Although the policy provides not. for a cancellation of the policy and a return of premiums in the event of suicide, but expressly in that event “the insurance under each policy shall be a sum equal to the premium hereon which has been paid to and received by the company and no more”, the Tax Court and the majority treat what was written as a contract for insurance as a cancellation of the policy contract and a *79return of the premiums paid. It is settled law in Louisiana,1 where this policy was written, as it is in nearly all of the states 2 that provisions in policies, providing in certain contingencies for a recovery less than the full amount of the policy, are valid insurance clauses and that they are integral parts of the insurance contract to be carried out as written. Here two of the policies were 15 year endowment, single premium policies. They were for principal sums of $21,200 and $10,000, respectively. The insured had paid on account of them premiums of $15,072.35, and $7,109.60, or a little more than two-thirds of the total insurance carried. Upon the third, a 20 payment life policy of $10,000, only one of the premiums, $357.90, had been paid. The policies could have provided that death by self destruction would cause a forfeiture of them and that the premiums would be returned to the insured. If they had so provided, death by self destruction would have put an end to the policies and the return of the premiums to the insured’s estate would not have been “received as insurance”, within the statute providing the exemption. But they did not so provide. On the contrary, they provided merely that the insurance to be paid to the beneficiary, in each case the mother of the insured, would be a sum equal to the premiums paid, and when the insured’s death occurred, the insurer paid it to her, and she left it with the company under a policy loan provision. Under these circumstances, it is not to construe the contract but to make one for the parties, to hold that the moneys paid to the beneficiary were not received as insurance but were received as a return of premium following cancellation of the policies. Both the Tax Court and the majority seem to attach importance to the company’s description of the sums it paid as a refund of premiums. It has never been the law that, by an unilateral statement, one party to a contract can affect the rights of another. In most of the states,3 insurance proceeds are exempted from creditors. Could it he for a moment contended that payments under a policy of this kind would not come within the exemption. All that was held in the LeGierse case was that the amounts received “must be received as the result of a transaction which involved an actual ‘insurance risk’ at the time the transaction was executed”. [312 U.S. 531, 61 S.Ct. 649.] It is not found, nor even claimed, that the insurance was taken out in contemplation of death by self destruction. It stands admitted that, when the policies were issued, an actual insurance risk attached and was assumed. The fact that the policy contained provisions adjusting the insurance in accordance with particular contingencies and that money was paid to the beneficiary under one of these contingencies cannot alter the fact that an actual insurance risk attached at the time the policy was issued and that the insurance was paid to the beneficiary as insurance in exact accordance with the terms of the policy. The LeGierse case and the others cited dealt with wholly different situations. What was dealt with there was a contract in the nature of an annuity, a contract uniformly held to be not an insurance, but a business, contract.4 There the parties planned an arrangement which, from its inception, was not insurance. Here the parties planned for insurance, contracted for insurance, obtained insurance, and insurance was paid to the beneficiary in the reduced amount and upon the contingencies expressly provided for in the policy. I think it plain that the Tax Court was wrong. I dissent from the opinion of the majority that its decision should be affirmed.
Moore v. Southern Life & Health Co., La.App., 195 So. 857; Gray v. Louisiana Industrial Life, La.App., 193 So. 278.
Cf. Equitable Life Assur. Soc. v. First National, 5 Cir., 113 F.2d 272, 135 A.L.R. 439.
Couch on Insurance, Vol. 2, secs. 330 ■et seq.; Vol. 8, see. 1930.
Cf. Daniel v. Life Insurance Co., Tex.Civ.App., 102 S.W.2d 256, and Ellison v. Straw, 119 Wis. 502, 97 N.W. 168, 170, denying exemption from debts to moneys paid on annuity contracts, in which the court said, “Life insurance' is one thing, investment is another, but the ingenuity of the life insurance companies in formulating contracts which confuse the distinction has been active for generations.”