court, and a judgment was entered dismissing plaintiff's suit. From this judgment plaintiff appealed to the court of civil appeals. That court reversed the judgment of the trial court, and sustained plaintiff's motion for a directed verdict, and entered judgment against defendant for the principal amount of said policies and interest, but denied plaintiff a recovery for the statutory penalty. The case is now before this court upon a writ of certiorari, sued out by defendant, for review, and errors have been assigned. By the first assignment of error, it is insisted that the court of civil appeals erred in giving effect to the incontestable clause contained in said policies; that the court should have held: First, that, upon the death of the insured within one year from the date of the issuance of said policies, they became mature demands, and the rights of the parties in respect to liability or nonliability became fixed as of that date, and that defendant could not set up any defense to plaintiff's action existing as of that date, and in holding that defendant was bound to take affirmative action to rescind the policies within a year from the date of their issuance; that, in any event, the court erred in not holding that, plaintiff having sued on said policies, defendant had the right by proper pleas to contest the same, regardless of when its pleas were filed. Second, that the court of civil appeals erred in holding that plaintiff had not waived the incontestable clauses contained in said policies, by his failure to expressly plead the same, either in his declaration or by way of replication to defendant's pleas. Third, that the court of civil appeals erred in holding that the matters set up in defense of plaintiff's action were immaterial; but on the record it should have held that said matters were material to the risk, and that the representations and concealments relied on by defendant in its pleas were made by the insured with the intent to defraud, and did defraud defendant in that it induced it to issue said policies, which, but for said fraudulent misrepresentations, would not have been issued. Fourth, that the court of civil appeals erred in sustaining plaintiff's motion for a directed verdict, and in rendering judgment against defendant for the amount of said policies, with interest and costs. Fifth, that the court of civil appeals erred in not affirming the judgment of the circuit court in favor of defendant and dismissing plaintiff's suit with costs. As we view the case, only three questions need be determined, and, if determined in favor of the judgment of the court of civil appeals, they are conclusive of the case. The first is, Did defendant's letter of January 30, 1920, in which it denied the justice of plaintiff's claim, and refused to pay the same, amount to a rescission of the policies? and the second is, whether or not the policies are contestable at all by defendant, in view of the incontestable clauses contained therein and the facts; and, third, Did plaintiff waive said incontestable clauses by his failure to rely on them in his pleadings? There is no merit in the first contention of defendant, that its letter of January 30, 1920, had the effect of rescinding the policies. There was no evidence offered which tended to show that plaintiff consented rescissionto a rescission of necessity of the policies. His Insurance consent. consent was necessary to accomplish such a result. On this point no authorities need be cited. On the second point, it is the contention of defendant that the contracts of insurance became mature demands upon the death of the insured, and that liability or nonliability became fixed by that event. While it is contended by plaintiff that the insured's death within the year in which said policies, by their (Tenn. terms, might be contested, did not It was held by this court in Clement v. New York L. Ins. Co. 101 Tenn. 22, 42 L.R.A. 247, 70 Am. St. Rep. 650, 46 S. W. 561, that incontestable clauses inserted in insurance policies similar to the one in question are reasonable and valid, and that the practical and intended effect of such a clause is to create a short statute of limitation in favor of the insured, within which limited period the insurer must, if ever, test the validity of the policy. The court in that case said: "It has been well said: "The effect of the provision is to prevent the insurer from interposing as a defense the falsity of the representations of the insured, which is a fraud. But it does not prevent abandonment, rescission, and cancelation of the contract for such fraud, provided the action for that purpose is brought within a year.' It is virtually saying to the insured that 'I will take one year in which to ascertain whether your representations are false or not, and whether you have been guilty of any fraud in obtaining the contract, and, if within that period I cannot or do not detect such falsity and fraud, I will obligate myself to make no further inquiry into these matters, and to make no defense on account of them."" It is insisted by counsel for defendant that the principle which is laid down in the Clement Case is not applicable to a case where death occurs during the one-year period. This insistence is not sound, in view of the peculiar language con -death of insured within year-effect. tained in the incontestable clauses in the policies under consideration. We will here quote We will here quote them again: "This policy shall be incontestable after one year from the date of issuance, except for nonpayment of premiums." The usual incontestable clause contained in policies of life insurance is: "After this policy shall have been in force [for a specified time] it shall become incontestable, except for nonpayment of premiums.' The identical question arose in the case of Monahan v. Metropolitan L. Ins. Co. 283 Ill. 136, L.R.A.1918D, 1196, 119 N. E. 69. The policy sued on in that case contained the following clause: "After two years this policy shall be noncontestable, except for the nonpayment of premiums as stipulated or for fraud." In that case the court said: "In passing upon the validity of incontestable clauses in policies of insurance, the courts have defined their purpose, and when this purpose as so judicially determined is considered it aids in the construction of the language used in an incontestable clause. Incontestable provisions in insurance policies have been held valid as creating a short statute of limitations in favor of the insured, the purpose of such provisions being to fix a limited time within which the insurer must ascertain the truth of the representations made. Roval Circle v. Achterrath, 204 Ill. 549, 63 L.R.A. 452, 98 Am. St. Rep. 224, 68 N. E. 492; Flanigan v. Federal L. Ins. Co. 231 Ill. 399, 83 N. E. 178; Weil v. Federal L. Ins. Co. 264 Ill. 425, 106 N. E. 246, Ann. Cas. 1915D, 974. This being the purpose for fixing a specified time after which the policy shall be incontestable, it is not apparent, as plaintiff in error suggests, that the meaning of the clause. here involved is that the policy shall not become incontestable until it has been in force for two years. There is nothing in this clause to indicate that the parties were contracting that plaintiff in error should have two years during the lifetime of Fay in which to investigate and determine whether false statements had been made in the application for the insurance. Plaintiff in error re serves two years' time in which to make such investigation and to determine whether there has been such a breach of warranty as would authorize it to rescind its contract." The court also held in that case that the incontestable clause is not only for the benefit of the insured, but inures to the benefit of the beneficiary after the insured's death. In passing on this point, the court said: "Plaintiff in error cites John Hancock Mut. L. Ins. Co. v. Schlink, 175 Ill. 284, 51 N. E. 795, in support of its proposition that the rights of the parties under a contract of insurance become fixed at the time of the death of the insured. The decision in that case has no bearing whatever upon the point raised here. Some of the rights and obligations of the parties to a contract of insurance necessarily become fixed upon the death of the insured. The beneficiary has an interest in the contract, and, as between the insurer and the beneficiary, all the rights and obligations of the parties are not determined as of the date of the death of the insured. The incontestable clause in a policy of insurance inures to the benefit of the beneficiary after the death of the insured as much as it inures to the benefit of the insured himself during his lifetime. The rights of the parties under such an incontestable clause as the one contained in this contract do not become fixed at the date of the death of the insured. In case of a breach of warranty the insurer must assert its claim within the two-year period, whether the insured survives that period or not, either by affirmative action or by defense to a suit brought on the policy by the beneficiary within the two years." To the same effect is the holding of the court in Ramsey v. Old Colony L. Ins. Co. decided by the supreme court of Illinois on April 21, 1921, in 297 Ill. 592, 131 N. E. 108. In that case the policy was made payable to the estate of the insured, and the court held that, where policies were made payable to the es tate of the insured, there was no one to whom premiums could be tendered, as there was no beneficiary in existence until an administrator was appointed. On this point the court said: "The appellant's right of action to contest the validity of the policy was necessarily in abeyance after the death of the insured until the appointment of an administrator. There was no person in existence to be sued, the estate of the insured being the beneficiary in the policy, until such appointment. There was no person to whom the company could tender the premiums which it had received or against whom it could proceed for the cancelation of the policy. The statute makes no provision for the appointment of an administrator who is not of kin to or a creditor of the decedent or the public administrator. The persons interested in the estate having refused or failed to take out letters of administration, the appellant, without any fault of its own, found it impossible to begin any suit to invalidate the policy within the year reserved to it. If the condition is to be literally applied in all cases where the insured dies before the expiration of the incontestable period, even on the day after the date of the policy, the persons interested in his estate have it in their power, in cases of policies payable to the estate of the insured, by refusing to take out letters of administration, to deprive the company of any opportunity of making its defense, no matter how meritorious a defense it may have. Where one party to a contract has by its own act made it impossible for the other party to comply with the contract and thus protect his interest in it, he cannot avail himself of the noncompliance of the other party to enable him to enforce performance. The impossibility of maintaining the suit because no person is in existence who may be sued will not be permitted to work the injustice of depriving the company of its right to maintain an action to cancel the policy at any time within the year (Tenn., 256 S. W. 438.) after its date. Either the death of the insured must fix the rights of the parties, so that the policy, if contestable then, may be contested whenever suit is brought, or the cause of action of the company must be regarded as suspended during the time it is prevented from suing by the failure to appoint an administrator, and, upon the appointment of an administrator, the suit may be maintained, provided that the whole time allowed the company for that purpose does not exceed one year." Another case directly in point is that of Ebner v. Ohio State L. Ins. Co. 69 Ind. App. 32, 121 N. E. 315, decided by the court of appeals of Indiana in December, 1918. In that case the court, with respect of the question of whether or not the incontestable clause inures to the benefit of the beneficiary upon the death of the insured, said: "The policy, under the heading 'Incontestability,' contained the following provision: (1) After one year this policy shall be incontestable except for nonpayment of premiums.' "Proceeding to a consideration of the case in its general features, we are first required to construe the incontestability provision of the policy, which, for purposes of this case, is as follows: 'After one year this policy shall be incontestable. There were certain exceptions which need not be further noticed, as they are not applicable here. It is appellee's contention that this provision should be construed to mean that a policy containing it is noncontestable after one year, provided it continues in force for that length of time, or provided it does not mature by the death of the insured before the expiration of the year; that, where the insured dies within the year, the provision has no application. . . It is apparent that the construction for which appellee contends requires that there be read into the provision something which it does not in terms contain. Had it been the purpose of the author of the provision, or the intent of the parties to the contract in assenting to it, to stipulate that appellee's right to contest should be limited to a period of one year, only in case the policy continued in force for that length of time or longer, it would seem that apt language to that effect might have been employed." Also another case directly in point is Hardy v. Phoenix Mut. L. Ins. Co. 180 N. C. 180, 104 S. E. 166. In that case the court said: "The remaining question, and one not heretofore decided in this court, is as to the effect on the incontestable clause of the death of the insured within one year from the date of the policy, and this depends largely upon the language used, and the purpose for which the clause was inserted in policies. "It says it 'shall be incontestable after one year from its date, except for nonpayment of premiums,' and, if we adopt the view of the defendant that this means 'that, if the policy had been in force one year, or if the insured should survive one year after the date of the policy, it should be incontestable,' we must insert in the contract, expressed in simple, unambiguous language, stipulations which do not appear there, and which materially affect the contract of the parties, which we are not at liberty to do. "If, therefore, there is nothing in the clause itself changing its terms or effect upon death of the insured within one year, if the clause was inserted for the benefit of the insurance company, to enable it to increase its business, if the period of one year after which the policy was to become incontestable was to afford opportunity to the company to make its investigations and to commence an action for the cancelation of the policy, and if, during the whole of the year, someone has been in existence, the beneficiary, against whom an action could be brought, we see no reason for refusing to give the plaintiff the full benefit of the clause as it is written. "The death of the insured did not place the defendant at any disad vantage under the policy, nor stop its investigations, nor did it affect its right to commence an action, and, in most cases, death would inure to the benefit of the company if it contemplated an action to cancel the policy by removing a hostile witness. "Our investigations, and those of counsel, indicate that the question has arisen very few times, and that the question, then, has been decided in accordance with this opinion. Ebner v. Ohio State L. Ins. Co. supra, and Monahan v. Metropolitan L. Ins. Co. 283 Ill. 136, L.R.A. 1918D, 1196, 119 N. E. 68, are directly in point." Another case also directly in point is Metropolitan L. Ins. Co. v. Peeler, - Okla., 6 A.L.R. 441, 176 Pac. 939. In that case the court said: "There is only one condition upon which the validity of the policy can be questioned after the lapse of a year, and that is the nonpayment of premiums. The meaning of the provision is that, if the premiums are paid, the liability shall be absolute under the policy, and that no question shall be made of its original validity. The language admits of no reasonable construction other than that the company reserves to itself the right to ascertain all the matter and facts material to its risk and the validity of its contract for one year; and that if within that time it does not ascertain all the facts, and does not cancel and rescind the contract, it may not do so afterwards upon any ground then in existence. Mutual L. Ins. Co. v. Buford, 61 Okla. 158, 160 Pac. 928; Clement v. New York L. Ins. Co. 101 Tenn. 22, 42 L.R.A. 247, 70 Am. St. Rep. 650, 46 S. W. 561; Thompson v. Fidelity Mut. L. Ins. Co. 116 Tenn. 557, 6 L.R.A. (N.S.) 1039, 115 Am. St. Rep. 832, 92 S. W. 1098; Wright v. Mutual Ben. Life Asso. 118 N. Y. 237, 6 L.R.A. 731, 16 Am. St. Rep. 749, 23 N. E. 186." In Ramsey v. Old Colony L. Ins. Co. 297 Ill. 592, 131 N. E. 108, the court said: "It is true that the cause of action upon the policy accrues upon the death of the insured, and the policy then becomes payable according to its terms, but the terms of the contract are not changed by the death of the insured. The right to contest the policy does not thereby become an absolute, unlimited right, but it is still controlled by the provision of the contract that it must be exercised within one year from the date of the policy. The company is not relieved from the obligation of its contract to ascertain all the facts material to its liability and cancel or rescind the contract within that time or be barred from thereafter contesting the liability. The death of the insured neither enlarged nor abridged the appellant's right. It was still entitled to make any defense or take any action necessary to enforce its rights. The right to do so was as complete as in the insured's lifetime, and was subject to the same limitation. The right of the company to defend against the policy is not greater than the right of the beneficiary to collect the money, and either right may be lost by mere lapse of time,-the latter by virtue of the Statute of Limitations, the former by the limitations established by the contract. The rule in regard to the construction of ambiguous language has no application. The language is not ambiguous. It admits of no reasonable construction, as the courts have said in the cases already cited, other than that the company may have one year, and no more, for investigation of the questions material to its risk, and if it does not within that time, either as plaintiff or defendant, contest the policy, it cannot do so afterward. Such contest can be made only by proceedings in court to which the insurer and the insured, or his representatives or beneficiaries, are parties. American Trust Co. v. Life Ins. Co. 173 N. C. 558, 92 S. E. 706; Mutual L. Ins. Co. v. Buford, supra." In support of its contention that the rights of the parties became fixed upon the death of the insured, defendant has cited the cases of |