c,a1~·r1-mr v. Jouu uaucooic nur. LIFE marco. 27
made subject, provided that no policy of insurance hereafter issued
by any company chartered by the authority of the commonwealth _
shall become void or be forfeited bythe non-payment of the premium
thereon, etc. There follows a provision that the first premium shall
constitute what is called a temporary insurance; and if the statute
applied to the policy, the plaintiff, as appears by the stipulation, was
insured to the amount of $1,000, the full amount of the policy, for
some two years after the payment of the first premium. When he
died he would have been entitled to receive the full amount of the `
policy, although after the expiration of what is called the temporary
insurance the policy would become absolutely void. The second sec-
tion of the chapter provides that if the death of the party occur within
the term of the temporary insurance covered by the value of the policy,
if no condition shall have been violated by the insured, the company
shall be bound to pay the amount of the policy the same as though
there had been no lapse of the premium, "anything in the policy to
the contrary notwithstanding."
This policy, instead of being issued in the ordinary form, provided
specially that upon the payment of the premium the policy should be
non-forfeitable, and should stand good for that portion of the sum
insured which the premium represented. The policy having been a
20·year endowment policy, and the first premium having been paid,
it continued good for $50, or 0ne·twentieth of the amount insured.
The plaintiff insists that this provision of the statute could not be
waived, and that as the period of the temporary insurance provided by
it had not expired, she is entitled to recover the entire amount of her
policy. The vital question, then, is whether it was competent for the
parties to waive the provision of the statute in express terms. We
have no doubt that the statute was intended to apply to all policies,
"anything to the contrary notwithstanding," as the statute expressly
says; and that if the policy had been an ordinary one the party would
have been entitled to the whole sum insured. It is questionable
whether the policy actually issued was not a more beneficial one for '
the insured than the one provided for by the statute; because if the
temporary insurance had expired, the policy, by the statute, became
void, and nothing could be recovered upon it, although the first pre-
mium had been paid; but under the stipulation in the policy it did
not become void, but only became a policy for the pro rata. amount
of the sum insured; that is, in this case, for one—twentieth. In this
particular case it operates unfortunately for the insured, because hav-
ing died while the temporary insurance was still in force he would,
under the statute, be entitled to the entire sum insured, whereas un-
der this policy, as already stated, he would be only entitled to one-
twentieth of this amount.
The question, then, is whether it was competent for the par_ties to
waive the provisions of the statute. It is objected by the plaintiff
that the statute must apply, jirst, because the pleadings set up no