224   RIGHTS AND POWERS OF INSURER

meant the forfeiture of the privilege to receive the surrender value of the policy or equivalent benefits, a privilege which would survive if there was merely a limitation of hazards. Statutes there are indeed whereby the enjoyment of surrender values is preserved against forfeiture by the insurer for breach of a condition as to the payment of premiums (see e. g., NR Y. Insurance Law, §§ 8S, 101, subd. 6), but not against conditions generally. What was said by HOLMES, J., of the effect of the "incontestable clause," must be read in the light of the question before him. It is true, as he says, that with such a clause the death of the insured, coupled with the payment of the premiums, will sustain a recovery in the face of a forfeiting condition. It is quite another thing to say that the same facts will prevail against a refusal to assume the risk. Later cases in the Federal courts develop the distinction clearly. "A provision for incontestability does not have the effect of converting a promise to pay on the happening of a stated contingency into a promise to pay whether such contingency does or does not happen." Sanders v. Jefferson Standard Life Ins. Co. (C. C. A.) 10 F. (2d) 143. 144. citing and distinguishing Northwestern Mutual Life Ins. Co. v. Johnson, supra. Where there has been no assumption of the risk. there can be no liability. * * * The kind of insurance one has at the beginning, that, but no more, one retains until the end.

The order should be affirmed, with costs.

POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN, and 11UBBS. JJ., concur.

Order affirmed.46

Appeal from the Circuit Court of the United States for the North-ern District of Illinois. * * *

Mr. Justice WooDs delivered the opinion of the court.

On Sept. 1, 1866, a policy of insurance was issued by the New York Life Insurance Company upon the life of Frederick W. Klein,

46 See Comment (1930) 78 Univ. of Pa. L. Rev. 914. Accord: Metropolitan Life Ins. Co. v. Beha (1929) 226 App. Div. 408, 235 N. Y. S. 501.

For further discussions of the incontestable clause, see the following notes, (1979) 3 Minn. L. Rev. 525, (1925) 10 Corn. L. Q. 384, (1910) 4 Ill. L. Rev. 584, (1924) 73 Univ. of Pa. L. Rev. 319.

As to the application of the clause after a reinstatement, see (1927) 14 Va. L. Rev. 136, (1928) 23 Ill. L. Rev. 93.

(C) St PERCENING IMPOSSIBILITY OF THE PERFORMANCE OF

A CONDITION.

KLEIN v. NEW YORK LIFE INS. CO.

Supreme Court of the United States, 1881.
104 U. S. 88. 26 L. ed. 663.