I am unable to agree with the conclusions reached by a majority of the Court. If it be true, as stated in the majority opinion, that a clause contained in an insurance policy declaring the same to be incontestable after a stated period of time has reference to contest in court by some sort of litigation and not a mere protest against payment, or an offer to rescind or a notice to protest at interest that the insurer will insist upon some defense to the policy, then it must follow that if the beneficiary institutes no suit to enforce payment under the policy, the insurer must before the expiration of the period in which it may contest the policy institute proceeding to have its rights judicially determined. It appears to me that the insurer's only forum is in a court of chancery in a suit to cancel the policy. The suit was filed within the time allowed by the terms of the contract and, therefore, it can not be said that the insurer was guilty of laches.

It appears in this case that the bill of complaint which sought to challenge and to cancel the policy was filed after the death of the insured and before an action at law had been commenced by the beneficiary to enforce the payment of the policy and on the last day on which the insurer could begin to contest its liability under the provisions of the policy. Therefore, in this instance, the only way in which the insurer could obtain relief and could avoid liability under the terms of the policy was to file in a court of chancery a bill in equity to cancel the policy because of the alleged fraud.

For the reasons stated, I think the judgment heretofore entered by this Court should be overruled and set aside and the decree appealed from should be reversed.

BROWN, J., concurs.