Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; James H. Wilkerson, Judge.
Before EVANS, Circuit Judge, and BALTZELL and BRIGGLE, District Judges.
The narrow and interesting question presented upon this appeal is the right of the administrator of an annuitant, who died a few years after the issuance of the annuity policy, to recover the balance of the premium not consumed in payments to annuitant during his life. The appeal is from orders sustaining appellee's motion to dismiss certain counts in appellant's separate action in chancery and at law. The action was begun in the state court and removed to the Federal court.
The Facts. Appellee, on May 21, 1930, issued to appellant's intestate an annuity policy in consideration of a single premium payment of $48,794.40. It paid insured $300 per month from June 14, 1930, until April 14, 1934, or a total of $14,100. This left a difference of $34,694.40 between the amount of the premium received and the annuities paid. The insured's administrator, the appellant, seeks to recover this amount with interest. The District Court sustained a motion to dismiss the causes of action in equity and at law.
The annuity contract is herewith set forth in full:
"New York Life Insurance Company
to Maurice B. McCarthy during the lifetime of said Maurice B. McCarthy, the Annuitant, An Annuity of Thirty-six Hundred Dollars payable in equal Monthly payments of Three hundred Dollars each; the first payment to be made on the Fourteenth day of June Nineteen Hundred and Thirty if the Annuitant is then living, and subsequent payments on the Fourteenth day of Each Month in every year thereafter, said Annuity terminating with the last Monthly payment preceding the death of the Annuitant. No proportionate annuity payment will be made to the day of death of the Annuitant.
"If annuity payments are to be made to any other than the Annuitant, or if the Company's check for any annuity payment is not to be indorsed personally by the Annuitant, the Company reserves the right to require satisfactory evidence that the Annuitant is living on the date the annuity payment falls due.
"This Annuity is granted upon the declaration that the Annuitant was born on the Seventh day of September, One Thousand Eight Hundred Seventy-Seven and if such declaration shall be found incorrect then the amount of Annuity payable under this contract shall be such as the single premium paid would have purchased at the correct age. Any overpayment or overpayments by the Company with interest thereon at the rate of six per cent (6%) per annum, shall be charged against the payments to be made after adjustment.
"This policy constitutes the entire contract between the parties and does not participate in ...