The opinion of the court was delivered by: SCHOONMAKER
This is a bill in equity, in which the plaintiff is seeking to cancel a life insurance policy issued to the defendant William Guzan, in which his wife, Eva Guzan, is the beneficiary. The case was heard on bill, answer, and proofs. From these we make and find the following findings of fact as conclusions of law:
(1) The plaintiff is an Iowa insurance company, engaged in the life insurance business.
(2) The defendants are residents and citizens of the commonwealth of Pennsylvania, in the Western District thereof.
(3) The amount in controversy in this case exceeds the sum of $3,000, exclusive of interest and costs.
(4) On October 6, 1930, the plaintiff wrote its policy of life insurance 894459, with provisions for disability benefits in the sum of $5,000, on the life of William Guzan, the designated beneficiary therein being the defendant Eva Guzan (a true and correct copy of the policy is attached to the bill of complaint in this case).
(5) As a prerequisite and inducement to the issuance of said insurance policy, the defendant William Guzan on September 26, 1930, made and signed a written application for such insurance, a copy of which application is attached to and forms a part of the policy attached to the bill of complaint. The application provided in part as follows: "It is agreed that any policy, if issued hereon, shall be dated as of the day such policy is written and the Company shall incur no liability until this application has been received, approved and the policy issued thereon by the Company and delivered to me and paid for during my lifetime and good health."
(6) Said policy was delivered to said William Guzan on October 10, 1930.
(7) As a part of the aforesaid application, the said William Guzan, on September 30, 1930, made answer to the plaintiff's medical examiner to the questions contained in part II, and signed such application (a true and correct copy of said part II in said application is attached to the policy, Exhibit A accompanying the bill of complaint in this case). Among the questions asked by the said application and answered by the said William Guzan are the following questions, with the recorded answer of the said William Guzan:
"21. G. Have you consulted, been treated or attended by a physician or practitioner within five years? (Explain fully, giving names and addresses of attending physicians or practitioners.) No.
"27. G. Have you ever had * * * tubercular infection? No.
"I. Have you consulted a physician for any ailment or disease not included in your above answers? No."
(8) Said policy contains a provision making the same incontestable two years after date, except for ...