Chambre J.—“All disorders have more or less a tendency to shorten life, even the most trifling; as for instance, corns may end in a mortification; that is not the meaning of the clause: if dyspepsia were a disorder tending to shorten life within this exception, the lives of half the members of the profession of the law would be uninsurable.”
If the insurance be for a year, the day of the date[[584]] is included, (thus a policy effected on the 3d of Sept. 1697 insures the whole of the 3d of Sept. 1698, being a year and a day) but the allowance of fifteen days or more usually given to pay up arrears of premium does not cover a death happening within them, (Want, Exix, v. Blunt, 12 East. 183,) for the contract is, that the insured shall himself pay during his life, not that his executors or administrators shall pay; and personal contracts shall be performed according to the words and apparent meaning of the parties, and not by a performance cy-pres; see also Tarleton v. Stainforth, 5 T. R. 695. The death must happen within the time insured, for if a person, whose life is insured for one year, receive a mortal wound within the year, but does not die till after the year, the insurer would not be liable; Mr. Justice Willes, in Lockyer v. Offley, 1 T. R. 252; but if the insurance were for life, he might pay up his arrears within the fifteen days.
It is evident that medical practitioners must have frequent occasion to give testimony on this subject; but it is only necessary for us here to observe, in addition to the general rules of evidence, that the declaration of a wife, whose life had been insured, has been admitted as evidence to prove the state of her health; her husband after her death having brought an action against the insurance company, Avison v. Lord Kinnaird; this case is important to medical witnesses in several points. See 2 Pr. Smith’s R. 286, 6 East. 188.
This branch of the law is also important to the faculty, as they must frequently be called upon to justify the medical certificates which the insurance offices uniformly require before they issue a policy, and it continually involves the very nice question as to what shall or shall not be considered a disease tending to shorten, or endanger life.[[585]]
So also medical evidence is often required to ascertain the state of a life on which an annuity may have been granted; where either the gross inadequacy of the price paid, or the exorbitance of the annuity secured, becomes a question for legal determination.[[586]]
SURVIVORSHIP.
As the probable duration of human life, under ordinary circumstances, forms the foundation of the system of life insurance, so also does the comparative chance of duration between two or more lives. These contingencies have been made the subject of minute, and we believe accurate calculation.[[587]] One observation alone is necessary on this branch of the subject: the tables have been constructed on the basis of local mortalities, they must not therefore be considered as universally applicable to all changes of climate and circumstance.[[588]]
A more difficult problem however is presented when it is required to estimate the probable chance that one life had survived another, there being no evidence of the decease of either, though a moral presumption exists of the loss of both. The legal application of this question may arise from a variety of circumstances, as where two or more persons perishing by the same accident, as shipwreck, it is necessary to ascertain the survivor in order to determine the course of succession. This was the case of the representatives of Gen. Stanwix, A. D. 1772, (Fearne’s Posthu. Works, p. 37) “a case which,” according to the learned author, “seemed to mock every principle of judicial decision.” Gen. Stanwix, accompanied by his only child, a daughter by his first marriage, and by his second wife, set sail for Ireland; the vessel was lost and not a single person escaped. If Gen. Stanwix had died a widower, and without issue living at the time of his death, that is to say, if his wife and daughter died before him, though but an instant, his nephew became his representative, and entitled to his personal estate; if the daughter was the survivor, then her personal representative (an uncle) was entitled; and on these claims the principal litigation took place, for though it is evident that the second wife also might have a separate next of kin, and her representative did bring forward a distinct claim, the circumstance is not noticed by Fearne (see note l. c. p. 39) “The court, finding the arguments on all sides equally solid and ingenious, waved giving any decision, and advised a compromise, to which the several claimants agreed.” So also in the case of Col. James and his wife, who being passengers in the Grosvenor East Indiaman, were in 1782 cast away on the coast of Africa, and attempted with a great part of the crew and other passengers to make their way to some settlement, but in all human probability perished. In this case there was greater latitude for conjecture than in the preceding, as there was not the same presumption that the fate of both had been nearly cotemporaneous; one might have survived a very considerable time, or both may have been living at the moment of the suit; there was also some evidence of their comparative state when last seen, as three or four sailors, who parted from the main body and took a different route, ultimately escaped and arrived in England to relate the melancholy tale of their shipwreck and sufferings. In this case, one of the parties being an infant, it was ordered that it be referred to the master to enquire and report whether it would be for the benefit of the infant to consent to a compromise; and the master having reported in the affirmative, no final judgment was given.
If a man be seized in fee of land and tenements, though but for a moment, his wife is entitled to dower[[589]]; therefore if both father and son perish by a common accident, and the son survive, however short the period, his wife shall have dower, for the lands descended the instant the father died. (2 Bl. Com. 132.) “This doctrine was extended very far by a jury in Wales,[[590]] where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seized of an estate in fee by survivorship,” (he and his father being joint-tenants) “in consequence of which seizing his widow had a verdict for her dower.” Broughton v. Randall, Cro. Eliz. 502, Noy. 64.[[591]] Here there could be no dower till the termination of the joint-tenantcy; therefore, if it were possible that they could have died simultaneously, the widow of neither could have been entitled; but this we believe impossible, therefore query, if there had been two widows and no evidence, should the case have been decided on presumption?
So also of joint-tenants (as partners) where the interest of the first deceased passes to the survivor, and not to the heir at law or next of kin of the deceased; but the heir at law or next of kin of the last survivor is entitled, (and see above Broughton v. Randall.)