Williams v. N. Y. Life Ins.

S'ykes, P. J., delivered the opinion of the court. The New York Life Insurance Company by bill in chancery seeks to have declared null and void a policy of insurance, upon the life of George W. Williams, deceased, in which policy the appellant is beneficiary, upon the grounds of misrepresentations made by deceased in his application to the company for the issuance of this policy. The policy provides that it shall be incontestable after two years. The suit was brought within the two years in the chancery court, but the subpoena for the defendant (appellant) was not issued or served until the expiration of this time. In the application for this policy the insured stated, among other things, that he had not consulted a physician for any ailment or disease or been treated by one within the last five years. He further agreed in this application that all of his answers were full, complete, and true, and that he understands and agrees that they are material to the -risk and that the company relies and acts upon them in issuing the policy. The testimony shows that ten days before the application for the insurance was made, the deceased had a physician call at his home to examine and treat him, at which time the deceased was sick, suffering-with some lung trouble, either influenza or tuberculosis; that practically from that time on he continued ill until his death. The record really indicates that he had tuberculosis. Several doctors and other witnesses testified to his illness. This testimony was in a way contradicted by that for the defendant. Under this testimony the chancellor was warranted in • decreeing that the above representations, or answers of the deceased in his application for this policy, were untrue, and the contract provided that they were material to the risk. [350] It is further contended by the appellant that the policy was incontestable because a subpoena was neither issued nor served upon the defendant until the expiration of the two years within which the policy may be contested. This court has uniformly held that a suit in chancery is begun when the bill is filed. Bank v. Hoyt & Bros., 74 Miss. 221, 21 So. 12. The decree of the lower court is affirmed. Affirmed.