26 FEDERAL nmroarnn.
f‘1n consideration of the agreement of said company that the policy to be
issued on this application, if accepted, shall not be forfeited for non-payment
of any premium, but in case of failure to pay any premium shall become a
paid-up policy for an amount proportional to the premium paid, it is hereby`
agreed that every person accepting or acquiring any interest in said policy
waives the benefit of chapter 186 of the Laws of 1861 of the commonwealth
of Massachusetts, if it should be held that said chapter applies thereto; and
agrees that said chapter shall constitute no part of said policy, and will ac-_
(cept said provision for a paid-up policy in lieu of the provisions of said chap-
er."
(3) After the execution and delivery of said application by said
Mills to the defendant, on December 4, 1880, it issued to him its
policy of insurance, whereby, in consideration of the premium of
$47.98, to be paid on or before December 4th, in every year, it prom-
ised to pay $1,000 to said Mills 20 years from date, or, in case of his
- prior decease, to his sister, the plaintiff, 60 days after due notice and
proof of his death, deducting the premium, if any, for the balance
of the policy year. It was further provided in said policy as fol-
]oWS:
" After one or more premiums shall have been paid, this policy shall not be-
come forfeited or void by the non—payment of any subsequent premium, but
shall remain in force for an amount pro mtu. to the number of premiums
paid, to-wit. for one-twentieth of the amount insured for each and every pre- '
mium paid. This contract is made and to be performed in the commonwealth
of Massachusetts." .
(4) After the payment of the first premium, and the failure to pay
the second, and on the twenty-seventh day of October, A. D. 1882,
the insured died, and due notice and proof was made. The policy
was then in force to the full amount if chapter 186 hereinafter men-
tioned applied thereto. Thereupon the plaintiff claimed the applica-
tion of the statute of 1861, c. 186, and demanded the full amount of
insurance, $1,000; but the defendant contended that chapter 186 of
the Laws of 1861 did not apply to said policy; or, if it did, thatby
reason of the waiver of the statute, and the agreement by the insured
to accept the provision made for a paid-up policy·for an amount rat-
ably proportional to the number of premiums paid, to-wit, one-twen-
tieth of $1,000 for each premium paid, the plaintiff was entitled to
receive $50, which it offered to pay the plaintiff. I
(5) Judgment is to be rendered for the plaintiff for $50, without
costs or interest, in case the court sustains the contention of the de-
fendant; and for $1,000, and interest from December 27, 1882, and
costs, in case the court sustains the contention of the plaintiff.
A jury was waived. _
Chas. A. Kent, for plaintiff.
Awed Russell, for defendant.
Baown, J. The question is as to the applicability of the statute,
and as to whether it was waived by the provisions of the policy. The
statute of Massachusetts, passed in 1861, to which this policy was