A life policy provided, that the limits of constant residence of the person whose life was insured by it, should be, New England, and the states of New York, New Jersey, Pennsylvania, and Ohio, with a privilege to travel or be in any other settled portions of the United States, or the British Provinces of Canada, New Brunswick, and Nova Scotia, under certain after-mentioned restrictions. One of the conditions of the policy was, that if the person whose life was insured should, without the consent of the insurance company first had and indorsed upon the policy, "between the first day of July and the fifteenth day of October, go into any other portion of the United States, beyond the limits of constant residence permitted to him, and be in such other portions of the United States more than five days," the policy was to become void, and all payments thereon were to be forfeited to the company. The policy further provided, that "in case of forfeiture from the above, or any other cause, the party interested shall have the benefit of such equitable adjustment as may from time to time, be provided by the board of directors;" and it appeared by the charter of the company, which embraced as members the shareholders of a guaranty stock to the amount of $100,000, and the persons whose lives should be insured by it, that the directors were to be elected, one half out of each of the two classes of the members of the company, by the joint votes of both classes. The person whose life was insured, who was the Protestant Episcopal Bishop of Rhode Island, in the early part of July, 1852, went into the state of Maryland during the absence of the Bishop of Maryland in Europe, to perform episcopal functions there; without notice to or the consent of the insurance company, and after remaining in that state about ten days in the performance of his duties, was attacked with apoplexy and died; it being in proof that his death was neither caused or hastened by the change of climate, but grew out of constitutional causes alone, equally operative in every parallel of latitude. After his death, his executors applied to the directors of the insurance company for the whole or some portion of the sum insured, as a matter of equitable adjustment, who voted to pay to the heirs of the bishop the office value for the surrender of the policy, which was declined by the executors. Upon a suit by the executors upon the policy, it was held, that although the executors would have been entitled to the benefit of any equitable adjustment provided for by established rules of the directors, existing at the time of the forfeiture, as well as to any which might be accorded by their special act, yet that the establishment of such rules was left by the policy wholly within the discretion of the directors; and that the court had no power to interfere with their action, or to dispense with or to qualify the forfeiture of the policy according to its own notions of what would be an equitable adjustment under the circumstances.
AMES, C.J.
It is admitted that the late Bishop Henshaw did, without consent of the defendant company issuing this policy, "first had and indorsed thereon," and between the 1st day of July and the 15th day of October, 1852, go into the state of Maryland, a portion of the United States beyond the limits of constant residence permitted by the policy, and there remain more than five days, to wit, about ten days, at the end of which period, and about the 20th day of July of that year, he died. The holy errand on which he went, the absence of all connection between his going and remaining, and the cause of his death, are not permitted to swerve our judgment from the legal effect of so plain a breach of a condition of this policy, upon the occurring of which it is, by its own terms, "to be void, and all payments thereon to be forfeited to the company." It is true, that by the qualifying clause of the condition of forfeiture, the executors of the assured would have been entitled to the benefit of any equitable adjustment provided for by existing rules established by the directors, or accorded by their special act. Whether such rules should be established, or such special dispensation from the forfeiture should be granted was, as it seems to us, left by this qualifying clause wholly to the discretion of the directors, who "from time to time" might act in the matter; except indeed, that they would not be permitted to change, to the injury of the assured, an established rule of adjustment existing at the time of the act or omission of forfeiture. The construction which supposes that such discretion was designed by both parties to the contract to be reposed in the directors, as fair arbiters for all interested, borrows support from the fact, that, under the charter of this company, the directors are elected by the joint votes of the assured and holders of the guaranty stock, and are to be chosen, in moieties, out of these two classes of the members of the corporation. No rule of equitable adjustment applicable to the case at bar appears to have been established by the directors of this company, and the request made to them by the claimants for special action in their favor was, upon full consideration, rejected. We cannot interfere with their discretion in this matter without doing violence to the contract upon which we are called to adjudicate, and must therefore render
Judgment for the defendants.