(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*307fied in the contract. In the instant case the policy is joint, insuring the .lives of the plaintiff and the deceased. The contract was directly with the plaintiff as much as with the deceased. The reasons for holding that the incontestable clause operates in favor of the beneficiary after the «death of the insured apply with even greater force where the plaintiff is not merely a beneficiary, but a contracting party as well.
In the case of Ramsay v. Old Colony Life Insurance Co., 131 N. E. 108, decided April 21, 1921, the Illinois Supreme Court adhered to its decision in Monahan v. Metropolitan Life Insurance Co., supra, and held that the defendant, when sued upon the policy by the administrator .of the insured, could not interpose the defense of fraud in procuring the •contract if it did not act within the time stipulated in the policy, although the insured died within that time. In my opinion, under such an incontestable clause as the one in question, any defense to liability on the contract which arises out of the transactions leading up to the policy must be asserted within the time prescribed.
While it is urged in this court that the plaintiff should not on appeal have the benefit of the incontestable clause, inasmuch as the matter was not suggested in the court below, it would seem that no useful purpose would be served by a reversal where, on the record as a whole, it clearly appears that the plaintiff is entitled to a judgment. Occasionally new grounds may be resorted to in an appellate court for sustaining a judgment where they would not be heeded if relied upon for reversal. See 3 C. J. 738.