Waters

This was an action brought by respondent to cancel a certain certificate of insurance issued by a fraternal insurance society operating under the provisions of the Fraternal Act of 1911 (Stats. 1911, p, 1320), and to declare a prior policy to be in force and effect. The complaint alleges that respondent is the surviving wife of the insured, Antone E. Waters; that she acquired a vested right in the prior insurance policy by reason of certain agreements or understandings betweeh herself and her husband at that time and by reason of her conduct thereafter with reference to the policy; that thereafter in 1913 the insured delivered up his policy to be canceled, that it was canceled, and a new policy— the one in suit designating the appellant as beneficiary— issued; that the issuance of the new policy, of which the appellant, a sister of the deceased, was made the beneficiary, was brought about through fraud and undue influence practiced upon deceased by appellant, and that at the time of the issuance of the new policy and consequent change of beneficiary deceased was of unsound mind and incapable of making a valid designation of beneficiary for that reason.

The court found each and…