Clift and Another v Eliza Schwabe, Administratrix, will the Will annexed, of Louis Schwabe, Deceased

JurisdictionEngland & Wales
Judgment Date16 June 1846
Date16 June 1846
CourtHouse of Lords

English Reports Citation: 136 E.R. 175

IN THE EXCHEQUER CHAMBER, AND IN THE HOUSE OF LORDS

Clift and Another
and
Eliza Schwabe, Administratrix, will the Will annexed, of Louis Schwabe
Deceased.

S. C. 17 L. J. C. P. 2: at Nisi Prius, 2 Car. K. 134.

[437] cases argued and determined upon writ of error in the exchequer chamber, and in the house of lords, in trinity vacation, in the ninth and tenth years of the reign of victoria. clift and another . eliza schwabe, Administratrix, with the Will annexed, of Louis Schwabe, Deceased. June 16, 1846. [S. C. 17 L. J. C. P. 2 : at Nisi Prius, 2 Car. & K. 134.] A. effected a policy on his own life, subject, amongst others, to the following con ditions-that the policy should become void, if the assured should die on the high seas, or should go beyond the limits of Europe, or enter the military or naval service, except with the permission of the assurers-and that " every policy effected by a person on his or her own life should be void, if such person should commit suicide, or die by duelling or the hands of justice."-A. died in consequence of having voluntarily, and for the purpose of killing himself, taken sulphuric acid, but under circumstances tending to shew that he was at the time of unsound mind.- In an action by the administratrix of A. upon the policy, the defendants pleaded that A. did commit suicide, whereby the policy became void; and at the trial the judge directed the jury, "that, in order to find the issue for the defendants, it was necessary that they, the jury, should be satisfied that A. died by his own voluntary act, being then able to distinguish between right and wrong, and to appreciate the nature and quality of the act that he was doing, so as to be a responsible moral agent; that the burthen of proof, as to his dying by his own voluntary act, was on the defendants; but, that being established, the jury must assume that he was of sane mind, and a responsible moral agent, unless the contrary should appear in evidence."-Held, upon a bill of exceptions, that this direction was erroneous; for, that the terms of the condition included all acts of voluntary self-destruction, and, therefore, that if A. voluntarily killed himself, it was immaterial whether he was or was not at the time a responsible moral agent-dissentientibus Pollock, C. B., and Wightman, J. Assumpsit, upon a policy of assurance. The first count of the declaration stated that, theretofore, and in the lifetime of the said Louis Schwabe, and also in [438] the lifetime of one Henry Barrett, since also deceased, to wit, on the 4th of July, 1836, by a certain memorandum in writing called a policy of assurance, then made and subscribed by the defendants below and the said Henry Barrett-after reciting that the said Louis Schwabe was desirous of effecting an assurance with the Argus Assurance Company, in the sum of 9991., upon his own life, and had signed and caused to be delivered into the office of the said company, a declaration or statement in writing, bearing date the 25th of June, 1836, declaring that the age of the said Louis Schwabe did not exceed thirty-eight years, that he had been vaccinated, that he had not had the gout, that he had not been afflicted with asthma, fits, convulsions, spitting of blood, or rupture, and that he was not afflicted with any disorder which tended to the shortening of life, and that the assured agreed that such declaration or statement should be the basis of the contract between him and the said company; and further reciting that the said Louis Schwabe had paid to the said company 171. 2s. 6d., as a premium for the assurance of the said sum of 9991. for twelve calendar months, commencing that day, to wit, the said 4th of July, 1836, being the day on which the said policy of assurance bore date, and terminating the 3rd of July, 1837, both inclusive, the receipt whereof was thereby acknowledged-it was witnessed, that the three directors of the said 176 CLIFT V. SGHWABE 3C. B.439. company whose names were thereunto subscribed, to wit, the defendants below and [439] the said Henry Barrett, who then were directors of the said company, and whose names then were subscribed to the said policy of assurance, did thereby agree, that, in case the said Louis Schwabe should die at any time within the term of twelve calendar months, commencing on the said 4th of July, 1836, and terminating on the 3rd of July, 1837, both inclusive ; or, if the said Louis Schwabe or his assigns should, in the event of his living beyond the said term of twelve calendar months, pay or cause to be paid to the said company on or before the 4th of July in each and every subsequent year during the life of the said Louis Schwabe, the following premiums, that is to say, &c., the funds or property of the said company should, according to the provisions of the deed of settlement of the said company, be subject and liable to pay and satisfy, within three calendar months after satisfactory proof should have been received at the office of the said company, of the death of the said Louis Schwabe, unto his executors, administrators, or assigns, 9991. : provided always, that if any thing averred by the said Louis Schwabe in the declaration thereinbefore mentioned to have been made by him, was untrue, that policy should be null and void, and all premiums and other moneys paid in respect thereof, should be forfeited to the said company : provided also that that policy, and the assurance thereby effected, were and should be subject to the several conditions and regulations thereupon indorsed, so far as the same were or should be applicable, in the same manner as if the same respectively were repeated and incorporated in that policy: Averment, that at the time of the making and subscribing of the said policy as aforesaid, there were indorsed thereon the conditions and regulations following, that is to say-First: No policy shall be considered in force beyond twenty-one days after the expiration of the year, unless the premium then due, shall have been paid [440] at the office of the company, or to some one of the agents of the company; but, should proof be given to the satisfaction of the board of directors, that the party or parties whose life or lives hath or have been assured, continue in good health, the policy may be revived at any period within six calendar months, on payment of a fine to be fixed by the board of directors, not exceeding 10s. per cent, on the sum assured, or at any time within twelve calendar months, on the payment of such fine as the board of directors may think reasonable-Second : Policies will become void, if the parties whose lives have been assured shall die on the high seas, except in passing, in decked vessels, or in steam-boats, from one part of the united kingdom of Great Britain and Ireland, to another part of the same kingdom, and to and from the islands of Guernsey, Jersey, Alderney, Sark, and Man; and also, in time of peace, in King's ships and packet or passage vessels or steam-boats, from or to any part of Great Britain, to or from any part of the Continent situate between Hamburgh and Bordeaux, both inclusive; or shall go beyond the limits of Europe, or, being or becoming military or naval men, shall be called into actual service ; unless in each case of going upon the seas, or beyond the limits of Europe, or into actual service, permission shall have been granted by the board of directors, and such premium or premiums on account of the extra risk be paid as shall be required by the board of directors-Third: All claimants, upon the decease of any person whose life shall have been assured by the company, must, if required, make proof thereof, and give such further information respecting the same, as the board of directors shall require-Fourth : Eeasonable proof will also be required of the time of the birth, unless the fact shall have been previously established, in which case the same will be admitted on the policy-Fifth : If the [441] age of any person whose life shall be assured by any policy, shall exceed the age stated in the declaration, the person assured thereby shall, except in case of fraud, be entitled under such policy to such a sum as would, according to the rate or rates at which the assurance was effected and continued on such policy, have been assured thereby for the annual or other premium or premiums actually paid in respect thereof, if the age of the person whose life shall be assured thereby was correctly stated in the declaration- Sixth : Every policy effected by a person on his or her own life shall be void, if such person shall commit suicide, or die by duelling or the hands of justice; but, if any policy effected by a person on his or her own life shall afterwards be actually assigned to any person or persons by way of mortgage, or for the benefit of any creditor or creditors, or charged with any sum or sums for the benefit of any mortgagee or mortgagees, or creditor or creditors, and the person on whose life the assurance shall have been effected shall commit suicide, or die by duelling or the hands of justice. 30. B. 442. CLIFT V. SCHWABE 177 then the policy so assigned or charged shall not be void to the extent of the principal sum or sums and interest secured by the assignment or charge; or, if any policy effected by any person on his or her own life shall afterwards be absolutely assigned to a purchaser for valuable consideration, in any transaction (except that of settlement upon or after marriage, or any other occasion), and the person on whose life the assurance shall have been effected shall commit suicide, or die by duelling, or by the hands of justice, then the policy so assigned shall continue in full force, notwithstanding such suicide or death-Seventh : To avoid all possibility of protracting or defeating equitable and just claims of the assured on the company, by the delay and expenses attendant on legal contests, it shall be...

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