#### MAGGIE GILMORE v. IMPERIAL LIFE INSURANCE COMPANY.

(Filed 29 October, 1930.)

Insurance E b — Provision; in policy of life insurance that no benefits would be allowed in case of death from apoplexy within one year is valid.

A provision in a policy of life insurance that the insurer would not be liable except for the return of the premium paid in case the insured died from apoplexy within one year from the date of the issuance of the policy is valid and enforceable in the insurer’s favor, C. S., 6460, not being applicable to the facts of this case. Holbroolc, v. Ins. Co., 196 N. 0.. 333, cited and distinguished.

Appeal by plaintiff from Midyette, J., at April Term, 1930, of Cum-beRlaNd.

Affirmed.

*633Tbe following judgment was rendered by tbe court below: “This cause coming on to be beard, and being beard, and it appearing to tbe court by admissions of counsel for tbe plaintiff and defendant, respectively, tbat on 16 July, 1928, tbe defendant issued its life insurance policy contract on tbe life of Tbomas Gilmore, husband of tbe plaintiff, and tbat tbe plaintiff was named as beneficiary by the name of Annie Gilmore, wbicb is tbe same person as tbe plaintiff, Maggie Gilmore; and tbat witbin less than one year tbe insured, Tbomas Gilmore, died of apoplexy, and tbat said policy contract contained, among other things, tbe following clause: ‘No benefits will be allowed for death caused by consumption, pellagra, Bright’s disease, apoplexy or organic heart disease witbin one year, or suicide until tbe policy has been in force for two years, liability of tbe company is limited to tbe return of tbe premiums on this policy.’ Tbat tbe amount of tbe premium paid on said policy was $6.80, wbicb was returned to tbe beneficiary prior to tbe institution of this action. Upon tbe foregoing facts, wbicb are admitted, and also found by tbe court, it is therefore considered, ordered and adjudged tbat tbe plaintiff is not entitled to recover anything of tbe defendant, and tbat tbe aforesaid stipulation in said policy is valid and binding provision of tbe said policy, and it is further ordered tbat tbe plaintiff be taxed with tbe costs.”

A. M. Moore for plaintiff.

Jones Fuller and Bullard & Stringfield for defendant.

ClaeKsoN, J.

Tbe facts set forth in tbe judgment of tbe court below are controlling. Tbe policy contract, in clear language, provides tbat if tbe insured dies of “apoplexy” witbin one year, tbe liability of tbe company is limited to tbe return of tbe premiums, wbicb have been returned to tbe plaintiff, beneficiary, prior to tbe institution of this action. We will not discuss tbe fact tbat tbe plaintiff, beneficiary, has accepted tbe premiums and perhaps is estopped to bring this action, but will decide tbe main question as to tbe binding effect of tbe contract. We can see no reason why tbe contract, although one of insurance, is not binding like any other contract, when a reasonable time limit is fixed as in tbe present contract.

In Spruill v. Northwestern Mutual Life Ins. Co., 120 N. C., 141, it is held: Where a life policy provides tbat if, witbin two years from tbe date thereof, “tbe said assured shall, whether sane or insane, die by bis own band, then this policy shall be null and void,” tbe insurer is protected from all liability if, witbin tbe two years, suicide shall be committed by tbe assured, whether sane or insane.

*634Wo think the ease of Holbrook v. Insurance Co., 196 N. C., 333, distinguishable. The statute, C. S., 6460, is not applicable to the facts in this case.

In the present case, the contract of insurance in specific language excludes apoplexy as a risk until one year after the policy contract is in force. The judgment of the court below is

Affirmed.