INCONTESTABLE CLAUSE   217

doubted that a policy with such exceptions in it would not be as attractive and salable as a policy without exceptions. The plaintiff chose to make the most attractive contract, and take its chance of being able to present its contest within time. * * *

Bnt there is another and possibly a still stronger reason why the motion to allow the administrator to be made a party can not be granted. We have seen that all of the defendants, so far as Policy No. 80923 is concerned (and it is only in this policy that the administrator is interested), have no legal interest in the suit, are not proper parties, and the bill must be dismissed as to them. The motion, therefore, amounts to a motion to substitute the administrator as a party. It is in effect, therefore, the bringing of a new suit against him, and that, too, after the time when such suit can be legally brought. This can not be done. A plaintiff can not bring suit against the wrong party within the time in which such suit is required by the statute of limitations or contract to be brought, and then. when such suit is dismissed, or about to be dismissed, seek to substitute an entirely distinct defendant, especially where such action will deprive such new defendant of the right to interpose a defense of the statute of limitations, or other defenses of that nature, which he might have interposed if the suit had been brought in time.44

MYERS v. LIBERTY LIFE INS. CO.

Supreme Court of Kansas. 1927.
124 Kans. 191, 257 Pac. 933, 55 A. L. R. 542.

The opinion of the court was delivered by B1-acmm, J. The action was one by the beneficiary in a life insurance policy to recover from the company issuing it. The company contended its liability was limited to the amount of premium which had been paid, judgment was rendered for plaintiff for the face amount of the policy, and defendant appeals.

44 Accord: Northwestern Mut. Life Ins. Co. v. Johnson (1920) 254 U. S. 96, 65 L. ed. 155, 41 Sup. Ct. 47, Comment (1921) 7 Va. L. Rev. 478; Mutual Reserve Fund Life Assn. v. Payne (1895, Tex. Civ. App.) 32 S. W. 1063.

Contra: Mack v. Connecticut Gen. Life Ins. Co. (1926) 12 Fed. (2d) 416, Note (1927) 11 Minn. L. Rev. 254.

Suppose a statute requires a two-year incontestable clause, and a policy has a three-year suicide clause. May the company after two years plead the insured's suicide within three years as a defense? See Mack v. Connecticut Gen. Life Ins. Co. supra.

On the question as to whether the period during which there is no administrator of the insured tolls the running of the contestable period, see Ramsey v. Old Colony Life Ins. Co. (1921) 297 Ill. 592, 131 N. E. 108; Jensen v. Metropolitan Life Ins. Co. (1929) 251 N. Y. 336, 167 N. E. 462. As to the effect of an incontestable and suicide clause after elapse and reinstatement, see Mutual Life Ins. Co. v. Lovejoy (1917) 201 Ala. 337, 78 So. 299, L. R. A. 1918D, 860; Me-Cormaek v. Security Mut. Life Ins. Co. (1917) 220 N. Y. 447, 116 N. E. 74.