The opinion of the court was delivered by: GIBSON
1. On August 15, 1930, John E. Lowe, husband of the plaintiff, died in his garage. His death resulted from gases emanating from his automobile.
2. At the time of his death, and for about five years prior thereto, John E. Lowe was president of the Lowe Motor Company, a corporation engaged in the sale of automobiles. This company had five stockholders, Lowe, Elias Ritts, W. C. Cheeseman, Benjamin R. Williams, and Charles C. Watson, each of whom held one-fifth of the capital stock of the company. The total capital stock was $50,000 in amount.
3. At the time of his death, John E. Lowe was personally liable as a guarantor of notes made or indorsed by the Lowe Motor Company and held by several banks, in the amount of $81,809.54. The other four stockholders were joint guarantors of said notes with Lowe.
4. Prior to the time of his death, John E. Lowe had withdrawn from the funds of the Lowe Motor Company, by checks drawn to his order and cashed or deposited to his personal bank account, amounts aggregating over $50,000. These amounts were charged to the account of Lowe in the books of account of the company, but were later credited to him as having been expended for "Commissions," "Adjustments," "Incidentals," "Expenses," and the like, but for such credits no supporting memoranda or data was found among the records of the company. A direct indebtedness of Lowe to the company of $5,309.37 was shown by the company's books of account.
5. At the time of his death, an insurance policy upon the life of John E. Lowe, in amount of $25,000, was in force; the Lowe Motor Company being the beneficiary. The amount of this policy has been paid to the company.
6. At the death of John E. Lowe, he was the insured in a certain accident insurance policy issued by the defendant company. The insurer, by the terms of this policy, undertook to pay to the beneficiary, Bertha A. Lowe, the plaintiff herein, the sum of $15,000 upon the accidental death of the insured. The insurer was not to be liable in case death resulted from suicide.
7. On August 26, 1930, the following paper was signed by Bertha A. Lowe, the plaintiff; said paper being signed by Elias Ritts and W. C. Cheeseman as witnesses:
"Glenshaw, Pa. Aug. 26, 1930.
"In consideration of the other stockholders of the Lowe Motor Co. providing at once necessary funds to care for maturing obligations of this corporation, I hereby agree to apply so far as necessary, funds from the accident insurance policy on the life of Jno E Lowe and payable to me, up to and not exceeding $12,000 for which Jno E Lowe would have been personally responsible, and in the same proportion if the above mentioned accident insurance policy of $15000. should not be paid in full.
"[Signed] Mrs. Bertha Lowe [Seal]
"Witness: W. C. Cheeseman