the action of the court in denying this motion, and the same cross-error has been assigned in this court.

It will be noted that the incontestable clause contained in this policy is not the one usually found in policies of companies which make a substantial contract not to contest after a specified period. In the first place, this clause specifies that the policy shall be incontestable after two years except for fraud. This exception is unusual in clauses of this kind and withholds from the insured a large measure of the protection he would secure had the clause been inserted without this exception, as is customarily done by insurance companies which issue what is known as incontestable policies of insurance. By the clause under consideration the insurance company says to the insured that it will hold him to the strict letter of his warranty for a period of two years, and if any of the statements warranted are false, however innocently made, the policy shall be void if contested within two years, and that after two years it reserves the right at any time to contest on the ground that the policy had been procured by fraud. As this policy was issued before the passage of the act regulating conditions and provisions of life insurance policies, the question whether a different rule of construction applies where a statute requires the insertion of specific language in a policy is not presented.

Plaintiff in error insists that the clear meaning of this clause is that the policy shall not become incontestable until it has been in force for two years. In support of its contention that the two years must have elapsed during the lifetime of the insured before the clause becomes effective as a bar, plaintiff in error cites and relies upon cases where the policies provided that they should be incontestable after they had been in continuous force for the specified time. 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. (Royal Circle v. Achterrath, 204 Ill. 549; Flanigan v. Federal Life Ins. Co. 231 id. 399; Weil v. Federal Life Ins. Co. 264 id. 425.) 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 reserves 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. This clause can be construed as insisted upon by plaintiff in error only by reading into it that which is not there. This provision of the policy is in the language chosen by plaintiff in error and constitutes a part of the contract which it entered into with Fay. The well established rule is that the language of an insurance policy, when uncertain or ambiguous, is to be construed in favor of the insured and most strongly against the insurer. Union Mutual Accident Ass'n v. Frohard, 134 Ill. 228; Terwilliger v. Masonic Accident Ass'n, 197 id. 9; Royal Circle v. Achterrath, supra; Switchmen's Union v. Colehouse, 227 Ill. 561; Monahan v. Fidelity Life Ins. Co. 242 id. 488.

Plaintiff in error cites John Hancock Life Ins. Co. v. Schlink, 175 Ill. 284, 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 under this particular clause 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.

It is suggested that the construction contended for by defendant in error might work a hardship upon the insurer where policies are made payable to the legal representative of the insured, as in this case, as, where knowledge of a breach of warranty is acquired after the death of the insured, so short a time might elapse between the date of death of the insured and the termination of the two-year period that it would be impossible to secure the appointment of a legal representative, and the insurer would be helpless. to effect a rescission or cancellation of the contract should it desire to do so. Such a situation does not exist in this case. The administrator of the estate of Fay was appointed in apt time and before the expiration of the two-year period. Plaintiff in error had ample time, if it desired to do so, to take such action as it should see fit for the cancellation of the policy upon the ground that the representations made by Fay in his warranties were false. It cannot complain if

by reason of its own language inserted in the contract it has created a situation which in some instances might make it more difficult for it to assert and maintain its rights.

The trial court erred in not directing a verdict for defendant in error. While the judgment of affirmance of the Appellate Court was upon different grounds than those stated in this opinion, it is correct and is therefore affirmed. Judgment affirmed.

(No. 11806.-Reversed and remanded.)

NELLIE CARLIN, Admx., Defendant in Error, vs. THE PEERLESS GAS LIGHT COMPANY, Plaintiff in Error.

Opinion filed February 20, 1918-Rehearing denied April 12, 1918.

I. LIMITATIONS-a statute of limitations will be given a prospective effect. A statute of limitations will be given a prospective effect unless there appears a clear intention to the contrary, and then a reasonable time must be allowed in which to enforce existing rights.

2. SAME-time fixed for bringing an action under Injuries act is not a statute of limitations. The Injuries act giving a right of action for wrongful death creates a new liability unknown to the common law, and the time fixed within which such action shall be brought is not a statute of limitations but is a condition of the liability and operates as a limitation of the liability itself and not of the remedy, alone.

3. SAME when amendment shortening time for bringing suit for wrongful death is applicable. The amendment of 1903 to the Injuries act, reducing to one year the time within which an action shall be brought for wrongful death, may be applied to a right of action which accrued three months before the amendment took ef fect, leaving nine months within which to bring the action.

CARTER, C. J., dissenting.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH H. FITCH, Judge, presiding.

MAYER, MEYER, AUSTRIAN & PLATT, (ALFRED S. AUSTRIAN, and ABRAHAM MEYER, of counsel,) for plaintiff in error.

DARROW, MASTERS & WILSON, and JACOB L. BAILY, for defendant in error.

Mr. JUSTICE FARMER delivered the opinion of the court:

This action was brought in the superior court of Cook county by the administratrix of the estate of Max Glick, deceased, against defendant, the Peerless Gas Light Company, and others who were later dismissed, to recover damages for the death of Glick, resulting from the alleged negligence of defendant. The declaration, in substance, alleged that deceased was an employee of defendant, whose duty it was to furnish said employee a reasonably safe place in which to work, specifically setting out wherein defendant failed and neglected to perform this duty, and that by reason thereof the deceased, while engaged in his employment and in the exercise of due care for his own safety, was caused to fall down an elevator shaft, by which he was killed. Defendant filed a plea of not guilty to the declaration, and also a special plea that the suit had not been brought by the plaintiff within a year after the death of her intestate. A demurrer by plaintiff was sustained to the special plea and defendant elected to stand by it. The cause was tried, resulting in a verdict and judgment for plaintiff for $5000, which, on appeal, was affirmed by the Appellate Court, and the case is brought here upon a petition for a writ of certiorari.

In the view we take of the case it will not be necessary to discuss any other question than the action of the court in sustaining the demurrer to the special plea.

The accident causing the death of Max Glick occurred. April 9, 1903, and the suit was begun May 4, 1904. At the date the death occurred, in April, 1903, the Injuries.