                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                                 No. 96-10136
                               Summary Calendar




            JOHNNIE SUE CAWLEY, Independent Executrix
               of the Estate of George Berryman, Jr.

                                                       Plaintiff-Appellee,

                                    VERSUS

               MONY LIFE INSURANCE COMPANY OF AMERICA,

                                                      Defendant-Appellant.



           Appeal from the United States District Court
                For the Northern District of Texas
                          (3:93-CV-2462)
                           June 27, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

     This diversity case decided on cross motions for summary

judgment   presents      the   issue   whether,    under   Texas     law,   the

incontestability clause of a life insurance policy precludes the

issuing insurer from contesting that the policy was void ab initio.

The district court held that it did and we affirm.

     The   facts   are    uncontested.       Dr.   Berryman,   the   insured,

obtained from Appellant a term life policy on his own life.                  He

     1
      Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
subsequently   made   another   person   the   owner   of   the   policy.

Thereafter, he applied to convert it to a universal life policy.

The Appellant did so.      The universal life policy contains an

incontestability clause. Both parties agree that when he requested

the change from term life to universal life, Dr. Berryman lacked

the legal authority to do so because he was no longer the owner of

the policy. Appellant argued to the district court, and does so

here, that because the universal life policy was void ab initio,

the incontestability clause has no effect; the policy was never “in

force”.   The clause reads:


           This policy will be incontestable after it has
           been in force during the lifetime of the
           Insured for 2 years from its date of issue,
           except as to any provision for benefits in
           case of total disability. But, any material
           statements made in an application for an
           optional increase in Specified Amount or in
           any application for reinstatement will be
           incontestable only after the increase or
           reinstatement has been in force during the
           lifetime of the Insured for 2 years from the
           date it took effect.


     The district court concluded, correctly we think, that the law

of Texas precluded Appellant’s argument.       In so holding the court

relied primarily upon Central States Life Ins. Co. v. Byrnes, 375

S.W.2d 330 (Tex. Civ. App., 1964 ) N.R.E.; Kansas Life Ins. Co. v.

Truscott, 124 Tex. 409, 78 S.W.2d 584 (1935); and Trevino v.

American Nat. Ins. Co., 168 S.W. 2d 656 (Tex Com. App. 1943).

While these cases do not involve the precise facts and issue of


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this case, we agree with the district court that these cases

correctly state the law of Texas on the subject.    Their rational

and result appear consistant with the rule in the majority of

jurisdictions.   See, Keaten v. Paul Revere Life Ins. Co., 648 F.2d

299 (5th Cir. 1981). The district court correctly applied that law

to the facts of this case.

     AFFIRMED.




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