(dissenting) : I cannot concur in the foregoing opinion. The defendant in the trial court pleaded payment of the amount due under the policy to one of the parties expressly authorized by its terms to receive it. It was admitted upon the trial that Bernard B. Whitbeck was the husband of the insured, Mamie Whitbeck, at the time of her death, and the defendant offered to prove by said witness Bernard B. Whitbeck that he, as such husband, did receive the amount of the policy sued upon, $500, and did pay part of the premiums therefor, and signed the receipts in full for the amount due under the policy sued on, to which the plaintiff objected as incompetent, irrelevant and immaterial under the issues in the case. This objection was sustained by the court and an exception saved, and this is expressly assigned in the petition in error as the third ground why the case should be reversed, and it was argued in the brief of plaintiff in error that the exclusion of this evidence as offered was sufficient ground to entitle the defendant to a new trial under its motion therefor.
I think this contention is sound, if the payment of the money to the husband of the deceased and his receipt therefor would constitute a valid defense to the action. This, in my opinion, leaves but one question in the case, and that is : Had the insurance company a right to pay the money due on the policy to the husband of the deceased ?
The application for the insurance, so far as it bears *155upon this subject, is as follows : “Name etc. of beneficiary, subject to provisions of policy applied for as to payment. Name estate.”
The policy issued by the company under said application and accepted by the insured contained this provision :
“The company may pay this policy to either the executor or administrator, husband or wife, or any relative by blood, or lawful beneficiary, of the insured, and the production by the company of the policy and a receipt in full, signed by either of them, shall be conclusive evidence that all claims upon said company under this policy have been fully satisfied.”
It seems to me that, if there was variance between the application and the policy, the policy being the last and fullest expression of the contract, its acceptance would be an acquiescence in its provisions, but there is no variance. The application expressly provides that in naming the beneficiary it is subject to the provisions of the policy as to payment; thus, in substance, incorporating into the application the provisions of the policy on that subject.
I think the judgment should be reversed.