creditors sought to subject to payment of their claims the proceeds of policies of insurance issued on the life of the debtor in favor of his wife, who had collected the proceeds of the policies. See this case also under V. d, supra. VII. Miscellaneous. The fact that the premium on a policy of insurance taken out by an insolvent debtor on his own life, payable to his parents, was paid only by a worthless check, and that he never put into the insurance anything upon which the creditors could have any claim, was the controlling factor in Roberts v. Winton (1898) 100 Tenn. 484, 41 L.R.A. 275, 45 S. W. 673, in holding that creditors of the assured had no right to the proceeds, but that' they passed to the beneficiaries. But see Lehman v. Gunn (Ala.) under II. b, supra. And where premiums on a policy of insurance for the benefit of his wife and children were paid by the assured out of his monthly wages as a laborer, which were exempt, it was held in Mahoney v. James (1897) 94 Va. 176, 26 S. E. 384, that his creditors could not, after his death, subject the insurance proceeds received by his widow and child to payment of their claims, to the extent of the premiums paid, on the ground that such premiums were paid while he was insolvent, and so were void as to pre-existing debts. The court said: "It may well be doubted whether premiums paid by the insolvent debtor on the insurance policy for the benefit of his wife and child, out of his earnings, five sixths of which were absolutely exempt from distress, levy, or garnishment, and the whole of which, if he had remained in possession of it, might have been held by him as his homestead, free from levy, seizure, or sale, by claiming it in the manner prescribed by law, could be considered, in the absence of an actual fraudulent intent, such an alienation of his property as appellants could complain of. . . It is unnecessary, however, to decide this question, for even if it were such a disposition of his property as the law condemns, and which the widow and son, who had received the benefit of it, must account for to the extent of the premiums paid during his insolvency, still they would be entitled to claim the fund as a homestead, and thus defeat the appellants' recovery in this suit. If the money paid by the insurance company to the widow and son, to the extent of the amount of the premiums paid by the debtor when insolvent, was the debtor's property, which he had fraudulently disposed of, or was a sum which, ex æquo et bono, they ought to account for, the appellants' right to subject it to the payment of their debt could not be any greater than it would have been if the debtor had not paid the premiums, and had retained the money until his death, or, having paid them, a sum equal thereto had been returned to his estate by his widow and son. The claim of homestead, set up by the widow and son, would have been good as to the money thus retained or returned, for the debtor had not waived his right to a homestead exemption as to the appellants' debt." Where the wife had a separate estate and contributed to the premiums yearly out of her separate property, and these payments were never returned to her, and she received no benefit from them except from the policies of insurance after her husband's death, it was held in Re Goss (1893) 71 Hun, 120, 24 N. Y. Supp. 623, that no case was made for charging the administrator with a claim by a judgment creditor of the assured for premiums on policies in excess of $500 per year, since the proof failed to show that this amount was paid for premiums in any one year out of the funds of the husband. See also, as to payments from the wife's property, First Nat. Bank v. Simpson (Mo.), and First Nat. Bank v. White (N. J.) under II. b, supra; and Jacob v. Continental L. Ins. Co. (Ohio) under V. c, supra. The question as to who should sue for recovery of life insurance premiums paid in fraud of creditors, where the husband, while insolvent, diverted money from his creditors for the payment of premiums on policies of life insurance for the benefit of his wife, under a statute providing that if the premiums on an insurance policy were paid with intent to defraud creditors, an amount equal to the premiums so paid, with interest, should inure to the benefit of the creditors, arose in Williams v. Harth (1914) 156 Ky. 702, 161 S. W. 1102, in which it was said that the personal representative should institute the action for the recovery of such premiums, but that, in the event of his refusal to do so, a creditor might bring the action for himself and all other creditors, and that all the creditors should be made parties, the action being in the the nature of a proceeding to settle the estate. But it was held in Lewis v. American L. Ins. Co. (1879) 7 Mo. App. 112, that the administrator of the husband, who had insured his own life for the benefit of his wife and children at a time when he was alleged to be insolvent, could not raise the objection that the insurance was in fraud of creditors; and the court held, therefore, that it was unnecessary to determine whether such a provision made for the wife and children could, in any event, be successfully attacked on the ground that it was fraudulent as to the creditors of the assured. R. E. H. REUBEN ALLEN HUMPSTON V. STATE MUTUAL LIFE ASSURANCE COMPANY of Worcester, Massachusetts, Plff. in Certiorari. 1. A provision that a life insurance policy shall be incontestable after one year from the date of insurance is not affected by death of the insured within the year. [See note on this question beginning on page 108.] - rescission necessity of consent. 2. Consent of the beneficiaries is necessary to rescission of life insurance contracts after the death of insured. profert is made of the policies in the pleading, and they are read in evidence, including the clauses relied on. On Petition for Rehearing. CERTIORARI to the Court of Civil Appeals to review a judgment reversing a judgment of the Circuit Court for Knox County in favor of defendant in an action brought to recover an amount alleged to be due on two policies of life insurance. Affirmed. The facts are stated in the opinion of the court. (— Tenn., 256 S. W. 438.) Messrs. J. C. Lambdin and Turner, Kennerly, & Cate, for plaintiff in certiorari: The contract of insurance became completed upon the death of the insured, and liability or nonliability became fixed by that event. Thompson v. Fidelity Mut. L. Ins. Co. 116 Tenn. 570, 6 L.R.A. (N.S.) 1039, 115 Am. St. Rep. 823, 92 S. W. 1098; Carlson v. Supreme Council, A. L. H. 115 Cal. 466, 35 L.R.A. 643, 47 Pac. 375; Miller v. Union Cent. L. Ins. Co. 110 Ill. 102; John Hancock Mut. L. Ins. Co. v. Schlink, 175 Ill. 284, 51 N. E. 795; 4 R. C. L. 490; 9 C. J. 1162; Sailors v. Woelfle, 118 Tenn. 755, 12 L.R.A. (N.S.) 881, 102 S. W. 1109; Harris v. Security Mut. L. Ins. Co. 130 Tenn. 328, L.R.A.1915C, 153, 170 S. W. 474, Ann. Cas. 1916B, 380; Kelley v. Mutual L. Ins. Co. 109 Fed. 56; Ebner v. Ohio State L. Ins. Co. 69 Ind. App. 32, 121 N. E. 315; Hardy v. Phoenix Mut. L. Ins. Co. 180 N. Č. 180, 104 S. E. 166; Mutual L. Ins. Co. v. Buford, 61 Okla. 158, 160 Pac. 928. The incontestable clause must be pleaded. Stamper v. Venable, 117 Tenn. 557, 97 S. W. 812; Stearnes Coal & Lumber Co. v. Jamestown R. Co. 141 Tenn. 206, 208 S. W. 334; Perkins v. Hays, Cooke, 163, 5 Am. Dec. 680; Moore v. Holt, 3 Tenn. Ch. 141; 33 Cyc. 43; Hardy v. Phoenix Mut. L. Ins. Co. 180 N. C. 180, 104 S. E. 166; Gross v. Disney, 95 Tenn. 592, 32 S. W. 632; Sully v. Childress, 106 Tenn. 109, 82 Am. St. Rep. 875, 60 S. W. 499; German Bank v. Haller, 101 Tenn. 83, 52 S. W. 807; Maupin v. Whitson, 2 Heisk. 1; Merriman v. Lacefield, 4 Heisk. 217. The incontestable clauses in this case have not been pleaded, and are therefore waived. Waterhouse v. Sterchi Bros. Furniture Co. 139 Tenn. 117, 201 S. W. 150; State ex rel. Spratlin v. Thompson, 118 Tenn. 578, 20 L.R.A. (N.S.) 1, 102 S. W. 349; Standard Loan & Acci. Ins. Co. v. Thornton, 97 Tenn. 1, 40 S. W. 136. Applicants for insurance are held to the utmost frankness and truthfulness in their applications. Harris v. Security Mut. L. Ins. Co. 130 Tenn. 328, L.R.A.1915C, 153, 170 S. W. 474, Ann. Cas. 1916B, 380; Catron v. Tennessee Ins. Co. 6 Humph. 178; Franklin F. Ins. Co. v. Crockett, 7 Lea, 725; Ætna Ins. Co. v. Miers, 5 Sneed, 139; Knights of Honor v. Dick son, 102 Tenn. 255, 52 S. W. 862; Home Ins. Co. v. Connley, 104 Tenn. 93, 56 S. W. 828; Boyd v. Vanderbilt Ins. Co. 90 Tenn. 212, 25 Am. St. Rep. 676, 16 S. W. 470; First Nat. Bank v. Fidelity & G. Co. 110 Tenn. 10, 100 Am. St. Rep. 765, 75 S. W. 1076; 1 Cooley, Briefs of Ins. p. 1161; Missouri K. & T. Trust Co. v. German Nat. Bank, 23 C. C. A. 65, 40 U. S. App. 710, 77 Fed. 117; Hale v. Sovereign Camp, W. O. W. 143 Tenn. 555, 226 S. W. 1045. In the bringing of a suit on a contract, the Statute of Limitations as to any defense growing out of the consideration for the contract is suspended by plaintiff's instituting his suit, and the defendant may rely on any defense not barred, when plaintiff institutes his suit. Lewis v. Turnley, 97 Tenn. 197, 36 S. W. 872; Williams v. Lenoir, 8 Baxt. 395; Paducah & M. R. Co. v. Parks, 86 Tenn. 554, 8 S. W. 842; Lowry v. Hawes, 10 Heisk. 688; 17 R. C. L. 745, 746; Louisville Bkg. Co. v. Buchanan, 4 Ann. Cas. 929, note; Clark v. Duncanson, 79 Okla. 180, 16 A.L.R. 315, 192 Pac. 806. Messrs. E. R. Taylor and Frantz, McConnell, & Seymour, for defendant in certiorari: Defendant was precluded from setting up the defense of the alleged misrepresentations contained in the application for the insurance, for the reason that the policies were incontestable, as defendant had not taken proper affirmative action within the contestable year to avoid the policies, and therefore the trial court should have directed a verdict in favor of the plaintiff. Clement v. New York L. Ins. Co. 101 Tenn. 26, 42 L.R.A. 247, 70 Am. St. Rep. 650, 46 S. W. 561; Monahan v. Metropolitan L. Ins. Co. 283 Ill. 136, L.R.A.1918D, 1196, 119 N. E. 69; Ramsey v. Old Colony L. Ins. Co. 297 Ill. 592, 131 N. E. 108; Ebner v. Ohio State L. Ins. Co. 69 Ind. App. 32, 121 N. E. 315; Metropolitan L. Ins. Co. v. Peeler, Okla., 6 A.L.R. 441, 176 Pac. 939; American Trust Co. v. Life Ins. Co. 173 N. C. 558, 92 S. E. 706; Murray v. State Mut. L. Ins. Co. 22 R. I. 525, 53 L.R.A. 743, 48 Atl. 800; Mutual L. Ins. Co. v. Buford, 61 Okla. 158, 160 Pac. 928; Arnold v. New York L. Ins. Co. 131 Tenn. 720, 177 S. W. 78; 14 R. C. L. 886, § 61; Langdeau v. John Hancock Mut. L. Ins. Co. 194 Mass. 56, 18 L.R.A. (N.S.) 1190, 80 N. E. 452. Plaintiff was not precluded from taking advantage of said incontestable clauses in its motion for a direct verdict. sued upon the life of Charles Ernest Humpston, the beneficiary named in the policies being the plaintiff, who is the father of the insured. The insured died on November Bomar v. Hagler, 7 Lea, 89; Water- 29, 1919, and within less than a year house v. Sterchi Bros. Furniture Co. 139 Tenn. 117, 201 S. W. 150; Grand Lodge, B. R. T. v. Clark, 189 Ind. 373, 18 A.L.R. 1190, 127 N. E. 280. There is no evidence in the record upon which a verdict for the defendant could be predicated. 3 Cooley, Briefs on Ins. § 2680; 5 Joyce, Ins. § 10, p. 6087; Snyder v. Supreme Rule, F. M. C. 122 Tenn. 248, 45 L.R.A. (N.S.) 209, 122 S. W. 981, affirmed in 227 U. S. 497, 57 L. ed. 611, 33 Sup. Ct. Rep. 292; Hartford L. Ins. Co. v. Sallings, 110 Tenn. 1, 72 S. W. 960; First Nat. Bank v. Fidelity & G. Co. 110 Tenn. 10, 100 Am. St. Rep. 765, 75 S. W. 1076; Endowment Rank, K. P. v. Cogbill, 99 Tenn. 28, 41 S. W. 340; Rand v. Provident Sav. Life Assur. Soc. 97 Tenn. 291, 37 S. W. 7; Knights of Pythias v. Rosenfeld, 92 Tenn. 508, 22 S. W. 204; Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222, 20 L. ed. 617; Hale v. Sovereign Camp, W. O. W. 143 Tenn. 569, 226 S. W. 1045; 14 R. C. L. 1071, 1072; Metropolitan L. Ins. Co. v. Larson, 85 Ill. App. 143; Fidelity Mut. Life Asso. v. Jeffords, 53 L.R.A. 193, 46 C. C. A. 377, 107 Fed. 402; McClain v. Provident Sav. Life Assur. Soc. 49 C. C. A. 31, 110 Fed. 89; Henn v. Metropolitan L. Ins. Co. 67 N. J. L. 310, 51 Atl. 689; Tyrus v. Kansas City, Ft. S. & M. R. Co. 114 Tenn. 594, 86 S. W. 1074; Woodward v. Iowa L. Ins. Co. 104 Tenn. 49, 56 S. W. 1020; Cushman v. United States L. Ins. Co. 70 N. Y. 77; Boos v. World Mut. L. Ins. Co. 64 N. Y. 240; Armour v. Transatlantic F. Ins. Co. 90 N. Y. 457; Campbell v. New England Mut L. Ins. Co. 98 Mass. 405; 1 Bacon, Ins. 4th ed. p. 509; Mouler v. American L. Ins. Co. 111 U. S. 335, 28 L. ed. 447, 4 Sup. Ct. Rep. 466. Hall, J., delivered the opinion of the court: An action by Reuben Allen Humpston, who will hereinafter be . referred to as plaintiff, against State Mutual Life Assurance Company of Worcester, Massachusetts, which will hereinafter be referred to as defendant, to recover upon two policies of life insurance for $5,000 each, dated March 7, 1919, and is after the policies were issued, as the result of Bright's disease. Proofs of death were promptly and seasonably made and filed by plaintiff, and on January 30, 1920, defendant wrote plaintiff a letter denying the justice of the claim, and refused to pay the same, but made no tender of the premiums which had been paid by the insured at the time of the issuance of said policies. The summons was issued on March 5, 1920, and was executed by service on defendant's agent on March 16, 1920. Plaintiff's declaration was filed April 26, 1920. It made profert of the policies, and, in addition to seeking a recovery for the principal sum of $10,000, it sought a recovery of interest and the statutory penalty of 25 per cent because of defendant's refusal to make prompt payment in accordance with the terms of the policies. Defendant, on June 15, 1920, which was more than a year after the policies were issued, filed its pleas to the declaration; setting up, in substance, that the insured had made certain representations in his applications for applications for said insurance, which were false and fraudulent, and were made with the intent to deceive defendant, in that he had been asked in said applications, "For what ailment or disease not included in your above answers have you ever consulted a physician?" and the applicant answered, "Typhoid fever in 1913," and the pleas aver that this answer was falsely and fraudulently made, because, in December, 1918, the insured had been dangerously ill with influenza and double pneumonia for a period of weeks; and that, had this fact been disclosed to the company, the policies applied for would not have been issued; and further, that, by reason of said misrepresentations, said pol (Tenn. - icies were and are void at the elec- It was further interposed in said plea, by way of defense, that the illness of the insured in December, 1918, left him in such an impaired physical condition that his death was due to a disease caused and superinduced by said illness and the weakened condition in which the insured was left as a result thereof; that, had these facts been made known to defendant, the applications for said insurance would have been rejected, and said policies would not have been issued; and, along with these pleas, defendant tendered into court the sum of $267.75, the amount of the premiums paid on the policies and accrued costs in the case; also the plea that said representations were material and increased the risk of loss; and later, by leave of the court, defendant filed an additional plea setting up the falsity of the following certificate made by the insured to his applications for said insurance: "I hereby certify that I have made all the statements and answers in numbers one and two of these applications, and declare that they have been correctly recorded by the soliciting agent and medical examiner, and that no circumstance or information touching my past and present state of health and habits of life has been withheld or omitted." It was further averred in this plea that said certificate was false and fraudulent for the reasons mentioned in the second and third pleas herein before referred to. On these pleas plaintiff joined issue, and later sought to file an additional replication to defendant's pleas, which averred, in substance, that said policies were Georgia contracts, and were controlled by the laws of the state of Georgia, which laws were copied in said replication. This additional replication was resisted by defendant as a departure in pleading; its insistence being 31 A.L.R.-6. that plaintiff was attempting to set up a new cause of action by way of replication, which was in no wise related to the cause of action stated in the declaration. This replication was disallowed by the court, but the matter incorporated therein was ordered by the court to stand as an amendment to plaintiff's declaration, but was subsequently withdrawn by the plaintiff upon demurrer being filed to the declaration as amended. On the issues thus made, the case went to trial before the court and a jury. The policies were offered in evidence by the plaintiff, considered as read, and became a part of the record in the case. They each contain the following tain the following incontestable clause: "This policy shall be incontestable after one year from the date of its issue, except for nonpayment of premiums." At the conclusion of all the evidence, plaintiff moved the court to direct a verdict in his favor, for the reasons: First, that the issues presented were immaterial as, under the policies, it was necessary for defendant to take some affirmative proceedings to cancel or rescind the policies within the contestable period; and, second, because a complete copy of the applications was not attached to the policies and made a part thereof. Defendant also moved the court for a directed verdict in its favor, for the following reasons: First, that the undisputed evidence in the case showed that the insured made certain misrepresentations and concealments as to his previous health, which were false and fraudulently made with the intent to deceive defendant, and thereby procure said policies; and second, that he was guilty of misrepresentations and concealments that were material to the risk, which were sufficient to avoid the policies regardless of the question of good or bad faith on the part of the insured. Defendant's motion for a directed verdict was sustained by the trial |