Bailey

The plaintiff as executor seeks recovery from the defendant for $3,027.40 and interest.

On March 31st, 1939, letters testamentary upon the will of Agnes B. Bonell, deceased, . were issued to plaintiff, who thereafter qualified as such, and is now, and has since been, so acting.

The defendant is a foreign corporation, and at all times herein mentioned was so acting, and authorized to do business in the state of California.

That on September 4th, 1936, at Honolulu, Territory of Hawaii, Agnes B. Bonell signed an application for an annuity contract with the defendant, and paid to the defendant $3,640; that an annuity contract was issued by which defendant agreed to pay annuitant $61.25 every three months during her lifetime commencing December 4th, 1936; that thereafter and prior to the death of annuitant defendant made quarterly payments to her and to her guardian in the sum of $612.60, but since her death has refused to pay any sum although demand has been made.

After plaintiff’s appointment as executor, and prior to this action, he served written notice of rescission of said' annuity contract on the ground', to-wit:

“You are hereby notified as follows:

“1. That the…