Page:North Dakota Reports (vol. 48).pdf/330

 It is affirmed. The respondent is entitled to his statutory costs and disbursements on appeal.

, J., being disqualified, did not participate, Hon. M. J. Englert, one of the Judges of Fifth Judicial District, sitting in his stead.

, J., concurs in result.

Englert, District Judge. I concur in the affirmance of this case, but I express no opinion on the question of whether or not the incontestable provision of the policy applies to those instances wherein the insured dies before the expiration of one year from the date of the policy.

, C. J., dissents.

, J. (concurring specially). I concur in the affirmance of the judgment on the ground that the effect of the incontestable clause was to obviate the defense upon which principal reliance is placed to defeat liability on the policy. Since the defendant did not contest liability nor seek a rescission within the time provided in the policy itself, it is unnecessary, in my opinion, to consider the merits of the defense unsuccessfully urged in the lower court, and which is made the principal basis of this appeal. Obviously, if the incontestable clause operates to cut off the defense, its merits become moot as conceded by appellant’s counsel.

Incontestable provisions in insurance policies are generally held valid as creating by contract a short statute of limitations in favor of the insured within which time the insurer must take affirmative action to cancel or rescind the contract. The clause in question fixes the date within which any such attempt may be made by the insurer as one year from the date of the policy, and it does not embrace the contingency of the lifetime of the insured. That is, it does not say that the policy shall be incontestable after one year from its date during the lifetime of the insured, but merely that it shall be incontestable after one year from its date. It is held in Monahan v. Metropolitan Life Insurance Co., 283 Ill. 136, 119 N. E. 68, L. R. A. 1918D, 1196, that the incontestable clause in a life insurance policy inures to the beneficiary after the death of the insured as much as it inures to the insured during his lifetime, and that even though some of the rights and obligations of the parties to the contract of insurance become fixed upon the death of the insured, the rights, as affected by the incontestable clause, do not become fixed at the date of the death. It is held that such clause continues operative for the period of time speci-