Young

(concurring).

In concurring we do not construe the opinion as impliedly holding that in sueh a case declarations of the insured are incompetent as proof of the substantive fact of falsity in his representations made to the insurer, but we take the precaution of adding that we express no opinion on that point. Furthermore, our concurrence is with the fact in mind that the insured retained the power to change the beneficiary, but whether, in the absence of that consideration, the decision should be different, we intimate no opinion.

This is an appeal from a judgment in an action upon an accident insurance policy for $30,000' issued to George U. Young in favor of his wife, the appellee. The insurance policy was applied for December 20, 1924, and issued January 10, 1925, and renewed for another year by payment of premium in January, 1926. The insured suffered an injury to his foot on December 15, 1925, and died on the 24th of November, 1926. The appellant life insurance company defends the action upon the ground that the accidental injury was not the cause of death but that the death was occasioned by myocardial failure superinduced by long existing kidney disease and diabetes; and, furthermore, that the insured was not wholly and continuously disabled from the date of the accident and upon the further ground that the policy was procured by fraudulent misrepresentation of the insured.

One of the principal questions in the case is the admissibility of declarations of the insured made before and after the issuance of the policy concerning his state of health both before and after the date of the policy. The issue of fraud is based upon statements made by the insured in the application for the policy in question.…