United Life Ins. Asso. 68 Hun, 144, 22 N. Y. Supp. 626, Affirmed without opinion in 142 N. Y. 677, 37 N. E. 824; Fitch v. American Popular L. Ins. Co. 59 N. Y. 570, 17 Am. Rep. 372.

Incontestable clauses have been uniformly upheld by the courts.

Simpson v. Life Ins. Co. 115 N. C. 393, 20 S. E. 517; Steele v. St. Louis Mut. L. Ins. Co. 3 Mo. App. 207; 2 Bacon, Ben. Soc. 694, § 340a.

Issuing a certificate of membership by a mutual benefit society is evidence of the

intoxicated, or commits an offense against a member or the good name of the order, or violates the constitution or the laws of the order, or commits any dishonorable act, or is known to have had dishonorable or unchaste character or reputation at the time of his or her admission into the order, the person knowing it shall communicate the facts in writing, and the names of all the witnesses, to the worthy ruler of the local circle to which the offending member belongs, who shall at once appoint a committee of five discreet persons, members of the local circle, who shall proceed to investi-holder's good standing in the order when it gate the matter, and report in writing the testimony, and all the facts bearing upon the case, whereupon the worthy ruler shall instruct the secretary to notify all the officers of the local circle to meet as a committee, and hear all the testimony on both sides. The accused shall be notified to appear to defend himself with witnesses. This committee of officers shall report their recommendations to the next meeting of the local circle, when final action will be taken. The committee's recommendation, adopted by a majority vote of the local circle, shall be final, but no such vote shall be taken unless notice of such meeting be sent to each member of the local circle."

Messrs. Don E. Minor, Dunn & Kenney, and Risse & Risse for appellant.

Messrs. Apollos W. O'Harra and Sterling P. Lemmon, for appellee:

Section 2, art. 16, of appellant's constitution, providing that after two years the certificate shall be indisputable and incontestable, overrides all other clauses in the constitution and by-laws and in the application inconsistent therewith, and the defense that the death of the assured was by suicide cannot be made after the two years have elapsed.

was issued, and such good standing will be presumed to continue, unless there is legitimate proof that it no longer exists.

High Court, I. O. of F. v. Zak, 136 Ill. 185, 29 Am. St. Rep. 318, 26 N. E. 593; High Court, I. O. of F. v. Edelstein, 70 III. App. 95; Scheufler v. Grand Lodge, A. 0. U. W. 45 Minn. 256, 47 N. W. 799; 3 Am. & Eng. Enc. Law, p. 1083; Kumle v. Grand Lodge, A. O. of U. W. 110 Cal. 204, 42 Pac. 634; Supreme Lodge, K. of H. v. Johnson, 78 Ind. 110; Mills v. Rebstock, 29 Minn. 380, 13 N. W. 162.

A member of a mutual benefit society is "in good standing" when he complies with the laws, rules, usages, and regulations of the order.

High Court, I. O. of F. v. Zak, 136 Ill. 185, 29 Am. St. Rep. 318, 26 N. E. 593.

The loss of a member's good standing in the order must be shown by the minutes, proceedings, or records of the order.

Ibid.; High Court, I. O. of F. v. Edelstein, 70 Ill. App. 95; Northwestern Traveling Men's Asso. v. Schauss, 148 Ill. 304, 35 N. E. 747; District Grand Lodge No. 4, 0. K. S. B. v. Menken, 67 Ill. App. 576; 2 Bacon, Ben. Soc. § 414.

Magruder, J., delivered the opinion of the court:

Mareck v. Mutual Reserve Fund Life Asso. 62 Minn. 39, 54 Am. St. Rep. 613, 64 In the case at bar, the proof shows that N. W. 68: Goodwin v. Provident Sav. Life William Achterrath, to whom the benefit Assur. Asso. 97 Iowa, 226, 32 L. R. A. 473, certificate sued upon was issued, died by his 59 Am. St. Rep. 411, 66 N. W. 157; Mutual own hand. While the affirmative proof in Reserve Fund Life Asso. v. Payne (Tex. Civ. the case does not show whether the deceased App.) 32 S. W. 1063; Patterson v. Natural was sane or not at the time of his death, Premium Mut. L. Ins. Co. 100 Wis. 118, 42 yet there is no proof that he was in such L. R. A. 253, 69 Am. St. Rep. 899, 75 N. W. a state of mind as to be unconscious of the 980; Murray v. State Mut. L. Ins. Co. 22 R. physical nature of the act of self-destrucI. 524, 53 L. R. A. 742, 48 Atl. 800; Wright tion, and therefore, in the absence of any v. Mutual Ben. Life Asso. 118 N. Y. 237, proof as to his insanity, all the presump6 L. R. A. 731, 16 Am. St. Rep. 749, 23 N. tions are in favor of his sanity. Grand E. 186; Kline v. National Ben. Asso. 111 Lodge I. O. of M. A. v. Wieting, 168 Ill. 408, Ind. 462, 60 Am. Rep. 703, 11 N. E. 620; 61 Am. St. Rep. 123, 48 N. E. 59; Dickerson Simpson v. Life Ins. Co. 115 N. C. 393, 20 v. Northwestern Mut. L. Ins. Co. 200 Ill. S. E. 517; Brady v. Prudential Ins Co. 168 270, 65 N. E. 694. It follows that, under Pa. 645, 32 Atl. 102; 19 Am. & Eng. Enc. the terms and provisions of the benefit cerLaw, 2d ed. p. 80; 2 Bacon, Ben. Soc. §tificate, and of the application for member340; 3 Joyce, Ins. 2581, § 2644; Bates v. ship, and of the constitution and by-laws

of the appellant association, except those A. 731, 16 Am. St. Rep. 749, 23 N. E. 186; contained in § 1 of article 16 of the con- Clement v. New York L. Ins. Co. 101 Tenn. stitution of the order, the appellant would 22, 42 L. R. A. 247, 70 Am. St. Rep. 650, 46 not be liable to the appellee in this suit. S. W. 561. "It has been held that where a Consequently, the real and substantial, and policy provides that it shall be incontestonly material, question in the case, is wheth- able after a certain period, except for cerer the remaining $1,500 due upon the face tain causes, death by suicide not being one of the benefit certificate is indisputable and of the excepted causes, such clause will apincontestable by the appellant on account of ply in case of the death of the insured by the provision contained in § 1 of article 16 suicide, notwithstanding the policy contains of the constitution, that section being indis- another clause providing that death by suiputably a part of the contract between the cide is not a risk which the company associety and the insured. In other words, sumes." 19 Am. & Eng. Enc. Law, 2d ed. is the appellant estopped from refusing pay- p. 80; Mareck v. Mutual Reserve Fund Life ment on account of Achterrath's death by Asso. 62 Minn. 39, 54 Am. St. Rep. 613, 61 suicide, by reason of the "incontestable N. W. 68; Goodwin v. Provident Sav. Life clause" quoted in the statement preceding | Assur. Asso. 97 Iowa, 226, 32 L. R. A. 473, this opinion as § 1 of article 16 of appel- 59 Am. St. Rep. 411, 66 N. W. 157; Simplant's constitution? son v. Life Ins. Co. 115 N. C. 393, 20 S. E. 517; Mutual Rescrve Fund Life Asso. v. Payne (Tex. Civ. App.) 32 S. W. 1063; Murray v. State Mut. L. Ins. Co. 22 R. I. 524, 53 L. R. A. 742, 48 Atl. 800; Kline v. National Ben. Asso. 111 Ind. 462, 60 Am. Rep. 703, 11 N. E. 620. In interpreting incontestable clauses, several well-known rules of construction are adopted as being peculiarly applicable to contracts of this class. One of these rules of construction is that such contracts are to be liberally construed in favor of the insured. In First Nat. Bank v. Hartford F. Ins. Co. 95 U. S. 673, 24 L. ed. 563, it was said that, "the policy having been prepared by the insurers, it should be construed most strongly against them." In Thompson v. Phenix Ins. Co. 136 U. S. 297, 34 L. ed. 108, 10 Sup. Ct. Rep. 1019, it was said: "If a policy is so drawn as to require

Section 1 of article 16 provides that “after two years from the date of a certificate, the member continuing in good standing, the only conditions binding upon the member are the agreements as to his full compliance with the laws and rules of the association, and that all dues and assessments shall be paid as required. In all other respects the payment of any sum, due under any certificate issued to a member, shall be indisputable and incontestable."

Before proceeding to consider the proper meaning and interpretation of this incontestable clause, it may be well to refer to some of the authorities which have considered the force and effect to be given to such clauses. Courts have frequently recognized the valid ity of clauses making policies of life insurance and benefit certificates in benevolent associations incontestable by the company interpretation, and to be fairly susceptible or association under certain conditions. of two different constructions, the one will Stipulations to the effect that a policy or be adopted that is most favorable to the certificate shall become incontestable for insured." See also, Massachusetts Ben. Life fraud in procuring the same after the lapse Asso. v. Robinson, 104 Ga. 277, 42 L. R. A. of a specified period from the date of its 261, 30 S. E. 918. In the Am. & Eng. Enc. issue have been held valid as creating a of Law, vol. 19, 2d ed. p. 80, it is said: "In short statute of limitations in favor of the regard to matters which would have the efinsured, and as giving the insurer a limited fect of defeating or destroying the contract, period for the purpose of testing the validity if there is a reasonable doubt as to the exof the policy. In such cases the company or tent of the application of the incontestable association cannot set up fraud as a defense clause it must be solved in favor of the beneif the period so fixed is sufficient to enable ficiary, and stipulations in the policy to the the company or association, by the exercise contrary must yield. Thus it has been held of proper diligence, to ascertain whether that a clause in the policy providing that fraud has been practised or not. Such if the terms of this contract be complied clauses, making a policy or certificate incon- with it shall be incontestable after one year testable for fraud, have fixed such period from its date,' though the meaning is someat from one to three years from the date of what doubtful, will relieve the insured from the issuance of the policy or certificate. the effect of a false warranty after the exMassachusetts Ben. Life Asso. v. Robinson, piration of one year. . So it has been 104 Ga. 256, 42 L. R. A. 261, 30 S. E. 918; held that where a policy omits the 'suicide Patterson v. Natural Premium Mut. L. Ins. clause,' but contains a clause making it ab Co. 100 Wis. 118, 42 L. R. A. 253, 69 Am. solutely incontestable from the date of its St. Rep. 899, 75 N. W. 980; Wright v. Mu- delivery and acceptance, except for nonpaytual Ben. Life Asso. 118 N. Y. 237, 6 L. R.ment of premiums or misstatement of age,

intentional suicide while sane, although | policy, taken in connection with the applitechnically a crime, cannot be set up as a cation, we think, is that the policy does not defense under another clause of the policy cover death by suicide occurring within two in effect providing that death 'in conse-years from the date of its delivery, but that. quence of or in violation of law' is not a after two years it is incontestable except risk covered by the policy."

upon the grounds stated therein. This construction will give effect to all the provisions of the policy, and, as such a result is always sought after by courts in interpreting all classes of contracts, we are quite content with it. We are the better satisfied with this conclusion because it seems that, in life insurance, certain companies limit the operation of the conditions as to suicide to a fixed period, and make their policies incontestable on that ground thereafter."

So, in Mareck v. Mutual Reserve Fund Life Asso. 62 Minn. 41, 54 Am. St. Rep. 615, 64 N. W. 69, it was said: "If there is a reasonable doubt as to the extent of the application of the 'incontestable clause,' it must be solved in favor of the beneficiary. This clause was inserted in the contract by the company itself. . . . Another reason why the insured might well understand the clause as meaning this [that is, that the company agreed to waive the condition as An application of the rules thus anto suicide after five years], and why the nounced in relation to these incontestable company itself may have intended it to have clauses in policies of insurance and benefit that meaning, is the fact that it is the cus- certificates leads to the conclusion that the toin of many life insurance companies to appellant is estopped from denying its lialimit the operation of conditions as to sui- bility to the appellee upon the benefit cercide to a fixed period, and to make their tificate, here sued upon, by reason of the propolicies thereafter incontestable on that vision contained in § 1 of article 16 of the ground." In the case last referred to, of constitution. It is claimed by the appellant Mareck v. Mutual Reserve Fund Life Asso. that William Achterrath did not continue there was written in ink across the face of in good standing by reason of the fact that the policy, and forming a part of it, the fol- he committed suicide. When the constitulowing: "After five years from the date of tion provides that "after two years from this certificate, it is incontestable for any the date of a certificate, the member contincause, except nonpayment of dues or mor- uing in good standing, the only conditions tuary assessments at the times and places, binding upon the member are the agreeand in the manner herein provided,―the age ments," etc., it is not meant that by the of the member being correctly stated in the act of taking his life the member does not application, for this certificate." The age continue in good standing. The meaning is of the insured was correctly stated in his that he must continue to be in good standapplication, and all dues and mortuary as- ing during the period of two years after the sessments were duly paid up to the time of issuance or date of the certificate, and up his death, and more than five years after to the time of his death. The loss of good the date of the certificate the insured came standing, as here contemplated, is not such to his death by his own hand; and it was loss as that occurring by the act of death, there held that the incontestable clause ap- but the reference is to such good standing plied, and that the company was liable for as exists up to the time of the death. The the full amount named in the life insurance life of the insured is ended the moment the policy. In Goodwin v. Provident Sav. Life act of suicide is performed, and there is no Assur. Asso. 97 Iowa, 234, 32 L. R. A. 473, interval for loss of good standing in the or59 Am. St. Rep. 411, 66 N. W. 159, it ap- der. In the next place, § 1 of article 14 of peared that by the terms of the policy it appellant's constitution, as quoted in the was incontestable after two years from its statement preceding this opinion, provides date, except for fraud in procuring it, sub- for affirmative action to be taken by the ject, however, to stipulations regarding pay order in case of any offense against the orments of premiums and extra hazardous occupations, and it was there said by the der being committed by the member. The court: "The tenets established for the accused must be given an opportunity to be guidance of courts in such matters are well heard, and evidence must be taken by a understood, and no one is better established committee, and a report made to the lodge, than that in all cases the policy must be and a vote had upon the report or recomliberally construed in favor of the assured, mendations of the committee. As the loss so as not to defeat without a plain necessity, of good standing of the member must be his claim for indemnity. And when the established by a trial and conviction of the words used may, without violence, be given offense charged against him, it cannot be two interpretations, that which will sustain said that suicide is such a loss of good the claim and cover the loss should be adopt-standing as is contemplated by § 1 of article ed. The proper construction of this 16, as no investigation or trial could occur

to establish the loss of good standing after | appellant society, which are a part of the a member's death.

of the policy, and, if the commission of suicide is included in the loss of good standing, the special provisions against suicide would be unnecessary.

contract made by it with the deceased, recWhen a certificate of membership is is- ognized a distinction between loss of good sued to a member, that certificate is evi- standing in the society, and self-destruction. dence of his good standing at the time of A member's certificate may become void by its issue, and such good standing will be his loss of good standing in the order, but presumed to continue until there is proof such loss of good standing is determined, that it no longer exists. A member is said as a general thing, by a trial and conviction to be in good standing when he complies in the order. When, however, a member with the laws, rules, usages, and regula- takes his own life no trial can be had, and tions of the order. Such compliance neces- none is required by the constitution of the sarily includes punctual payment of all order. The act of suicide works a forfeiture dues and assessments for which the member of the certificate, not because the member is may become liable. Good standing also thereby deprived of his good standing in means good conduct; that is, freedom from the order at the time of his death, but bethe violation of those requirements which cause, aside from all question of good standindicate the benevolent purposes of the so- ing, it is especially provided that suicide ciety, or express its intention to insist up in and of itself shall defeat a recovery. If on a high standard of character among its the intention was that loss of good standmembers. High Court, I. O. of F. v. Zak, ing in the order always occurred when death 136 Ill. 185, 29 Am. St. Rep. 318, 26 N. E. was from self-destruction, then there would 593; Supreme Council R. T. of T. v. Curd, be no occasion for providing especially 111 Ill. 284. The words of the certificate against suicide. In such case it would only here sued upon are as follows: "Provided be necessary to provide generally that loss always that said member is in good stand- of good standing should work a forfeiture ing in this order at the time of said death." In relation to words of a similar kind we said, in High Court, 1. O. of F. v. Zak, 136 Ill. 189, 29 Am. St. Rep. 322, 26 N. E. 594: "Under such a constitution as that of appellant, the loss of good standing must be shown by some official action on the part of the organization. The order is a corporate body. The attitude of a corporate body towards one of its members can only be known through its action as such corporate body. The only proper evidence of such action will be the records or proceedings of the organization itself." It is clear that, inasmuch as loss of good standing on the part of a member must be thus established by corporate action. such loss of good standing does not include the act of the member in committing suicide. See also Niblack, Accident Ins. & Ben. Soc. 2d ed. §§ 155157 inclusive; also § 323. At § 323 of the second edition of Niblack's work on Accident Insurance and Benefit Societies, the author says: "Proof that the society recognized the decedent as a member up to a short time before his death, in connection with the presumption that all persons follow such laws, rules, and regulations as they are subject to, is sufficient evidence of the good stand-or territory in which the assured may be, ing of decedent to maintain the action." It is not denied in this case that the deceased, William Achterrath, paid all his dues, and conformed in every respect to such requirements of the society as entitled him to a good standing up to the time of his death, independently and outside of the fact that he died by his own hand. 2 Bacon, Ben. Soc. 2d ed. § 414.

Counsel for appellant, however, claim that suicide is a crime, and that, therefore, the appellant is not liable under the provisions of its constitution, which make the certificate null and void if a member dies on account of the violation of any criminal law of any state, province, or municipality. But suicide is not a crime under the statutes of this state. In New York, although suicide is not a crime, an attempt to commit suicide is a crime, but it has been held in that state that the fact that a member killed himself is not a defense to an action under a provision of the contract that it should be void if he should die "in violation of, or attempt to violate, any criminal law." Darrow v. Family Fund Soc. 116 N. Y. 537, 6 L. R. A. 495, 15 Am. St. Rep. 430, 22 N. E. 1093. In Kerr v. Minnesota Mut. Ben. Asso. 39 Minn. 174, 12 Am. St. Rep. 631, 39 N. W. 312, where a policy of insurance provided that "if the assured shall die in, or in consequence of, the violation of any criminal law of any country, state,

this certificate shall be null and void," it was held that death by suicide is not, within the proper meaning of the policy, to be considered as the violation of law therein referred to; and in that case it was said by the supreme court of Minnesota: "And under the general language here used, which must be construed favorably to the assured and strictly as against the company, the vio

Again, the constitution and by-laws of the lation of law referred to in the policy

ought not, we think, to be construed to mean or include suicide. Suicide, though strictly a crime, is not reckoned among of fenses or violations of law, such as the language of the policy would be commonly understood to refer to."

Counsel for appellant also say that, while suicide itself may not be a crime, yet the attempt to commit suicide is a crime. But "an attempt to commit crime imports a purpose not fully accomplished to commit it. It is the attempt to commit suicide that is the crime while the taking of one's own life is no violation of the criminal law. While the attempt to commit suicide is a crime, the accomplishment of the purpose to do so is not." Darrow v. Family Fund Soc. 116 N. Y. 537, 6 L. R. A. 475, 15 Am. St. Rep. 430, 22 N. E. 1093. In the case at bar, suicide was actually accomplished, and therefore, it cannot be said that the deceased was guilty of the attempt to commit suicide. "If the act fails to accomplish its purpose, it constitutes an attempt; but if the result of it is the consummation of the purpose, the act is not commonly designated as an attempt." Darrow v. Family Fund Soc. 116 N. Y. 543, 6 L. R. A. 498, 15 Am. St. Rep. 435, 22 N. E. 1095.

whether sane or insane," etc. By the terms of the second agreement, embodied in clause 9, he says: "I agree to make punctual payment of all dues and assessments for which I may become liable, and to conform in all respects to the constitution, laws, rules, and usages of this order now in force, or which may hereafter be adopted by the supreme circle thereof." By agreeing that the order shall not be responsible under the contract if he should die by suicide, whether sane or insane, he made an agreement which stood by itself, and was not dependent upon any. thing in the constitution, laws, rules, or usages of the order. It is not to be presumed that, when he made the agreement embodied in the ninth clause of the application, it was intended to repeat what was agreed to in the eighth clause. Therefore, when by the ninth clause he agreed to conform in all respects to the constitution, laws, rules, and usages of the order, the The benefit certificate issued to the de- intention evidently was to refer to such ceased was issued January 19, 1899, and parts of the constitution, laws, rules, and his death took place May 8, 1901, more than usages of the order as were not embraced in two years after the issuance of the certifi- what was agreed to by the terms of clause S. cate. Inasmuch as he continued to be in If the language in clause 9 was broad good standing up to the time of his death, enough to cover the agreement that the the question arises as to the meaning of order should not be responsible in case of that part of § 1 of article 16 which reads his death by suicide, then it was unnecesas follows: "The only conditions binding sary to make the separate agreement in reupon the member are the agreements as to gard to dying by suicide which is embodied his full compliance with the laws and rules in clause 8. In construing two clauses of of the association, and that all dues and a contract following one upon the other, a assessments shall be paid as required. In construction will not be adopted which all other respects the payment of any sum makes one a repetition of the other. It is due under any certificate issued to a mem-true that, by § 5 of article 10 of the constiber, shall be indisputable and incontestable." tution, it is provided that "if a member dies After the expiration of the two years from the date of the certificate, the only conditions binding upon William Achterrath were the agreements as to his full compliance with the laws and rules of the association, and that all dues and assessments should have been paid as required. It is not denied that he paid all dues and assessments as required; and the only question remaining is whether the agreements as to his full compliance with the laws and rules of the association include or exclude the provisions in regard to suicide and self-destruction.

The certificate in this case provides that the statements and representations made by Achterrath in the petition or application for his membership in the circle shall be made a part of the contract embodied in the certificate. When we look at the application

by self-destruction the certificate of membership shall be null and void." But all upon this subject that is embodied in § 5 of article 10 of the constitution is contained in the agreement made by the insured in clause 8 of the application. It is therefore to be presumed that the agreement in clause 9 of the application did not refer to that part of § 5 of article 10 of the constitution which refers to self-destruction.

When, now, we come to § 1 of article 16 of the constitution of the order, we find substantially the same language which is embodied in clause 9 of the application. This application is made out upon a blank furnished by the order itself. Sections 1 and 3 of article 6 of the constitution refer to the subject of filling out the blank application