ment of premiums? . . I am of opinion that the facts alleged in the bill can be urged with equal force as a defense to an action by the beneficiaries to collect the amount of the policies, even though the suit was commenced more than one year after the date of the policies."

The circuit court of appeals in this case, in taking the opposite view, merely cited the HURNI PACKING CO. CASE and said that the reasons stated in support of the conclusion reached in that case were applicable to the provision in question, ignoring the possibility suggested in the HURNI PACKING CO. CASE itself of a possible distinction because of the difference in the language of the clauses.

In INDIANAPOLIS L. INS. Co. v. AARON (reported herewith) ante, 100, the result of the view that death put an end to the incontestable clause was that the insurance company had an adequate remedy at law, and therefore could not maintain a bill in equity for relief. As has been seen, the contrary conclusion of the circuit court of appeals in the McIntyre Case followed from its view that death did not put an end to that clause.

III. Computing the time from which the incontestable clause begins to operate. In MUTUAL L. INS. Co. v. HURNI PACKING Co. (reported herewith) ante, 102, the court holds that where a clause in a life insurance policy provides that it shall be incontestable after a specified time "from its date of issue," the word "date" refers to the date of issue appearing on the face of the policy, which was antedated by mutual consent of the parties and premiums paid from that date, and not to the time of actual execution of the policy, or the time of its delivery.

In Jefferson Standard L. Ins. Co. v. Wilson (1919) 171 C. C. A. 357, 260 Fed. 593, where a life insurance policy provided that "after one year from date" it should be incontestable, the concluding clause of the policy stating that it was caused to be signed on November 15, 1916, delivery to the insured being made June 1, 1916, and a

receipt given insured on June 16, acknowledging payment of interim insurance from June 1, 1916, to November 15, 1916, and for the first premium on the policy, to which the interim insurance was supplementary, said receipt reciting that the policy was in force from said payment of interim insurance and the first premium, the court held that the incontestable clause became operative from June 16, instead of from November 15. The court says: "The paper called 'Interim Term Receipt' shows that it was the purpose to make the insurance contracted for effective prior to the date stated in the concluding clause of the body of the policy. The time limit fixed by the provision in question was disclosed by the words, ‘after one year from date,' the date there referred to not being specifically stated. The object of the provision in question being to limit the time within which the contract of insurance could be contested by the insurer, there is ground for inferring that it was intended that that time was to run from the date when the contract became subject to contest. It was subject to be contested as soon as it was in force."

In Anderson v. Mutual L. Ins. Co. (1913) 164 Cal. 712, 130 Pac. 726, Ann. Cas. 1914B, 903, the court held that an insurance company was liable on a life insurance policy which provided that the insurer should not be liable in the event of insured's death by suicide during the period of one year after the date of issuance of said policy, although in the instant case the insured committed suicide within one year of the day when the policy was actually executed by the company, but more than one year after the date appearing on the face of the policy, which was also the date on which premiums were payable to the insur

er.

And in Monahan v. Fidelity Mut. L. Ins. Co. (1909) 242 Ill. 488, 134 Am. St. Rep. 337, 90 N. E. 213, the court held that a clause in a life insurance policy making the policy incontestable except for the nonpayment of premiums, provided "it shall have been in continuous force after two years from

the date hereof," referred to the date on the policy, which was the time when premiums were made payable, although another clause provided that the policy should not be operative or binding until the actual payment of the initial premium and delivery of the policy, which was at a later date than that of the policy. The court also decided that the failure of the insured to pay a premium on the date due, but one day later, did not make out a new contract of insurance and start a new period from which the incontestability clause was to run, as contended for by the company, which claimed that the payment of the premium on a later date broke the continuous operation in force of the policy. In disposing of this contention the court said that, although the premium was due on a certain date, the company could waive payment on that day, and if it did waive payment on the date due, and accepted it later, there was no forfeiture; therefore, there was no new contract, the old policy still remained in force, and the provisions contained in the policy, including the incontestable clause, would control in determining the legal effect of the policy.

Where a benefit certificate, bearing the date of an original certificate issued to the assured, was issued as a substitute for the original certificate, which contained a clause exempting the insurer from liability for death by suicide of the assured "within three years from the date of this certificate," the court held in Wood v. Brotherhood of American Yeomen (1910) 148 Iowa, 400, 126 N. W. 949, that the word "date" referred to the date of the original certificate; thus, the suicide of the assured more than three years from the date of the original certificate, but less than three years from the execution of the substituted benefit certificate, did not invalidate the latter. The judgment was for the insurer on other grounds with which this annotation is not concerned.

In Meridian L. Ins. Co. v. Milam (1916) 172 Ky. 75, L.R.A.1917B, 103, 188 S. W. 879, where a policy provided that it should be incontestable 31 A.L.R.-8.

"after one year from the date hereof," the court held that the policy became incontestable one year from the date appearing on the face of the policy, and not one year from the date of its delivery, which was several days later than the date of the policy. The policy further provided that the insurer would not be liable in case of the death of the insured by suicide within one year from the date of the policy; therefore, as the policy was dated June 8, 1914, and the insured suicided June 8, 1915, the insurer contended that the suicide was within one year of the date of the policy. Answering this contention, the court said: "The rule in regard to the computation of time is well settled, and is this: When the computation is to be made from the act done, the day on which the act is done must be included; but when the computation is to be made from the day itself, and not from the act done, then the day on which the act is done must be excluded from the computation.

In the case at bar, therefore, the year of incontestability must be computed from the dating of the policy, which was an act done on June 8, 1914. Manifestly, therefore, June 8, 1914, must be included in the computation, and the first year of the policy expired on June 7, 1915. Otherwise, the year would have contained 366 days, instead of 365 days." Therefore, the insured did not suicide within one year of the date of the policy. For a similar holding in construing a similar clause, see Harrington v. Mutual L. Ins. Co. (1911) 21 N. D. 447, 34 L.R.A. (N.S.) 373, 131 N. W. 246.

In American Nat. Ins. Co. v. Thompson (1916) Tex. Civ. App. —, 186 S. W. 254, where a life insurance policy was issued August 11, 1913, the first annual premium to be paid November 29, 1913, and a rider was attached providing for short-term insurance from July 29 to November 29, 1913, the insurer giving his note for the entire premium, including the short-term insurance premiums, the court held that a clause, providing that "if during the first policy year the insured shall suicide" the com

pany would be liable only for the premiums paid, became operative from the date of the short-term policy. The court says: "We think the trial judge was correct in holding that there was but one contract. The rider was attached to the policy, and recites that it was issued in consideration of the application for short-term insurance, together with the application for the long-term policy and in conjunction with said policy; and that the life of Adair is thereby insured for the short term for a like amount and under like conditions as stated in the policy. We do not think it could be doubted under these provisions of the 'rider' that if the insured had suicided between the issuance of the policy and the 29th day of November, 1913, the suicide clause of the policy would have applied, and appellant would only have been liable for the premium paid on said policy. If the suicide clause in the policy covered the period between the dates last named, then it could not be held to cover the date on which the insured committed suicide [November 6, 1914], because by its terms it only covered one year. . . . And the suicide clause can only be held to cover the year beginning with the issuance of the policy."

In North American Life Assur. Co. v. Elson (1903) 33 Can. S. C. 383, where a policy provided that it should be incontestable three years after going into enforce, except for certain reserved defenses, the court held that the policy went into operation and took effect from, at any rate, the date when the policy was posted for transmission to the insured.

IV. Effect of reinstating policies.

In Pacific Mut. L. Ins. Co. v. Galbraith (1905) 115 Tenn. 471, 112 Am. St. Rep. 862, 91 S. W. 204, where the defense was based upon a misrepresentation as to health in the certificate for reinstatement, under a policy which provided that it should lapse and be void for failure to pay any premium, or instalment thereof, and further provided that it should be indisputable after two years except for nonpayment of premiums, the court held that failure of insured to pay the second

date due

annual premium on the caused the policy to lapse, and the two-year period of incontestability would begin to run from his reinstatement, and not from the date of the policy. Says the court: "While in a state of absolute collapse, the former owner of the policy has neither a legal nor an equitable claim on the company. By his failure to comply with the condition upon which it could be kept alive he has ipso facto forfeited all rights under the policy. . If any benefit is to accrue to him therefrom, it must be revitalized, and this can only be done with the consent of the company. When it is done then it becomes a new assurance,a new contract, as if the policy then was for the first time issued. If this be its nature then it must operate in the future from the date of its reinstatement, and whatever might be its original date, or howsoever long it may have run, yet it would seem by the force of necessary logic, to follow that the incontestable clause would begin its new life with the date of the new contract." See also State Mut. L. Ins. Co. v. Rosenberry (1915) Tex. Civ. App. 175 S. W. 757. for a dictum to the same effect as the instant case.

In McCormack v. Security Mut. L. Ins. Co. (1917) 220 N. Y. 447, 116 N. E. 74, where the defense was based upon, misstatements as to health in the application for reinstatement, the court held that under a provision in a policy of insurance stipulating that it should be incontestable after being in force for one full year, the period of contestability was to be computed from the date of the reinstatement of the policy which had lapsed, the court taking the view that a reinstated policy was to be considered as a new contract. In Teeter v. United Life Ins. Asso. (1899) 159 N. Y. 411, 54 N. E. 72, the court said that as the insured had, for more than two years after the reinstatement, paid the premiums, and the insurer had accepted them, the defense, which was based upon misrepresentations as to health in the application for reinstatement, was precluded by the incontestable clause.

And in Northwestern Mut. L. Ins. Co. v. Pickering (1923) 293 Fed. 496, where an insurance policy contained a clause making it incontestable after one year from its date of issue, except for nonpayment of premiums, and the policy, after lapsing, was reinstated, the court held that the failure of the insurer to contest the policy for misrepresentations in obtaining the reinstatement, within one year of the reinstatement, precluded it from thereafter making such a defense.

But, in Mutual L. Ins. Co. v. Lovejoy (1919) 203 Ala. 452, 83 So. 591, where an original policy of insurance stipulated that the policy should be incontestable except for nonpayment of premiums, provided two years should have elapsed from its date of issue, the court held that insured's death by suicide more than two years after the execution of the original policy, but within one year of his reinstatement under a provision of the original policy allowing reinstatement after default in payment of premiums, did not invalidate the policy, although it was provided in the application for reinstatement that the policy should be void if the applicant should suicide within one year of his reinstatement. The court reasoned that the reinstatement of the policy did not have the effect of creating a new contract, dating from the time of renewal, but instead had the effect of continuing in force the original contract of insurance, the right to renew the original contract being a part of the original contract, which was incontestable at the time of insured's death; thus, the condition in the application for reinstatement was not binding on the insured. See Mutual L. Ins. Co. v. Lovejoy (1917) 201 Ala. 337, L.R.A. 1918D, 860, 78 So. 299, application for rehearing in 1918, which was a suit between the same parties on an identical policy, where the fact situation was the same as that in the case just cited, the defense being based on suicide and in which the same result was reached.

V. Substitution of another policy. In Gans v. Ætna L. Ins. Co. (1915) 214 N. Y. 326, L.R.A.1915F, 703, 108

N. E. 443, where a term policy, containing a clause exempting the insurer from liability in case of the suicide of insured within one year from the date of the policy, was exchanged some years later, upon application and without a medical re-examination, for a new form of policy containing a suicide clause identical with that of the term policy, under an option for a new policy on the basis of the age then attained by the insured, the court held that the suicide clause in the substituted policy was to be given effect from the date of the substituted policy; that the two policies did not constitute a single contract dating from the term policy. The court says: "It [the application for the new policy] applies for a 'new contract or policy,' specifying the kind desired. The policy of April 5, 1912 [new policy], is in form and substance an independent, complete, and isolated contract. It expresses no dependence on or connection with the term policy. Nor was it a restatement of the contents of the term policy. The premium to be paid, and the rights, privileges, advantages, and obligations of both parties under it, are essentially and substantially different from those under the term policy." Therefore, the two policies did not form a single contract dating from the execution of the term policy; thus, the suicide clause in the new policy was not inoperative because the suicide was not within a year of the execution of the term policy. In reply to the contention that either of the options under the original policy, which the insured did not exercise, would, if exercised, have made the date of the original policy the date of the present policy, and therefore the option which the insured did exercise, and which expressly made the date of the present policy that of its issuance should be, through construction, rewritten by the court so as to provide that the date of the new should be the date of the old policy, the court said: "Beyond skepticism, the parties agreed that the date of the new policy should be that of its issuance, and they so made it; that the old policy should be returned

to the company and thereby terminated; that the premium payable was adapted to the kind of new policy selected by the insured, and to his then insuring age, and should be paid 'during the whole term of the policy,' and that the term of the policy should be thirty-six years from April 5, 1912. We have not the right or power to compel the parties to do that which they agreed should not be done."

But in Silliman v. International L. Ins. Co. (1914) 131 Tenn. 303, L.R.A. 1915F, 707, 174 S. W. 1131, where the insured was issued a five-year term insurance policy, providing the insured. with the privilege, on any anniversary of the term, of changing for any other form of policy without medical reexamination and without filing a new application, said policy containing a clause exempting the insurer from liability for the death of the insured by suicide within one year of the date of the policy, the court held that where, four years later, the insurer exchanged for another form of policy at a rate of premium for the attained age of the insured, which was issued in compliance with the agreement contained in the term policy, the two policies were in effect one and the same contract, and a suicide clause in the substituted policy, exempting the insurer for liability for suicide of insured "within one year from the insurance begins," had reference to the original date on which the policy was issued; so that the death of the insured within six months of the issuance of the new policy would not invalidate the substituted policy. The new policy, according to the court, was but a continuation of the same insurance contract; it was based on the same application and medical examination, and the terms of the new contract were in strict conformity to the provisions of the original policy, which granted to the insured the right to make such exchange to take the place of the original policy. In distinguishing this case from Gans v. Ætna L. Ins. Co. (N. Y.) supra, the court points out that in the Silliman Case there was nothing to show that the substituted policy was

"an independent, complete, and isolated contract," as was true of the Gans Case; also, in the Silliman Case there was no application filed for a "new contract or policy," but simply a demand made for another form of policy, to be issued in accordance with the agreement in the first policy, and this was not true of the Gans Case.

And in Seymour v. Mutual Protective League (1910) 155 Ill. App. 21, where a benefit certificate, by its terms incontestable after being in force two years, is exchanged for a new certificate, changing the beneficiaries and providing that the policy should be void in case of the suicide of insured, the court held that the relation of the insured to the insurer was not in any manner changed by the issuance to him of the new certificate, such new certificate being merely a continuance of the original contract, and the incontestable clause must be held to operate from the date of the first certificate.

Where the original benefit certificate contained a clause making the policy incontestable after three years, and a new certificate was issued, identical with the original benefit certificate except as to beneficiaries, the court held, in Marshall v. Modern American Fraternal Order (1913) 184 Ill. App. 224, that a provision in the new certificate exempting the insurer from liability in case of the suicide of insured within three years referred to the date of the original certificate, as the issuing of the new certificate did not create any new contract with the insured, except as to who should be beneficiaries thereunder.

VI. Assumption by one company of the risks of another.

In Arrowsmith v. Old Colony L. Ins. Co. (1911) 164 Ill. App. 44, where the assured made written application to a company for a life insurance policy, said application stipulating that death by suicide within two years would exempt the company from liability, and received a policy, and subsequently the risks of the company issuing the policy were taken over by another company, which executed a new policy stating that it was issued in consid