Page:Federal Reporter, 1st Series, Volume 7.djvu/323

 COFFEY V. UNIVEBSAL LIFE INS. CO. 311 �undoubtedly well decided that the election to take a paid-up term policy should have been made during the life of the assured, and on that ground alone the demurrer was sustain- able. But, on the general question decided, it is to be ob- served that the case does not show that the bill set out the proceedings in New York against the company, further than to state the institution and general character of the proceed- ings, the injunctional order of the court of August 23, 1877, and that such order continued in force until October 29, 1878. In view of the manner in whieh the question there arose, the fact that the bill was filed after the death of the assured by his representative, and of the absence of many of the most material facts bronght out in the case at bar, I do not regard the decision in the Mississippi case as an au- thority that should be deemed controlling here. �Eeferring again to the proceedings in New York, it is, per- haps, worthy of observation that it appears from the order of the court made October 29, 1878, by which the company was declared solvent, that pending those proceedings the company procured releases of policies from the holders to the extent of over $7,000,000, and that policies which had become daims by the death of the insured and matured endowments, to the extent of over $600,000, had been released one-half by the holders thereof. These facts were recited in the order, in con- nection with the judgment of the court, that the company had become solvent, and show that there was cause for the institution of the proceedings, and that the disability of the company to act arose from its financial condition and the consequent intervention of the court ; and that it was pnly removed when solvency was brought about by the cancellation of a large amount of its liabilities. �A decree will be entered requiring the defendant to issue and deliver to the complainant a paid-up policy for $600, on surrender of the original policy, properly receipted, — the spe- cial terms of which decree can be settled hereafter. �Note. The cases cited on the argument were Chase v. Phenix Mut. Life Ins. Co. 7 Ins. L. J. 93 ; Dorr v. Same, Id. 368 ; JHontgotnery v. Same, 8 Ins. L. J. 300 ; Desmaze.i v. Mut. Benefit Life Ins. Co. 7 Ins. L. J. 926 ; ��� �