This ease was ordered retransferred to this court for hearing and determination, by reason of the inability of the justices of the district court of appeal of the third district to concur in a judgment. While the cause was pending in the last named court Mr. Justice Burnett prepared an opinion, which was forwarded to this court, as required by the constitution. That opinion is as follows:

It is stated in the foregoing opinion that “there is no contention that fraud is expressly excepted” from the effect of the incontestability provision. In this respect, as is pointed out by counsel for appellant, the learned justice was in error, as the claim was expressly made in their briefs. With this minor exception, going in no way to the merits of the appeal, we are satisfied that the opinion is in all respects correct, including, of course, the view expressed to the effect that there is no good warrant in fact for the assertion that by the terms of the policy, fraud is withdrawn from the application of the incontestability provision, and we adopt such opinion as a part of the opinion of this court.

As is shown by this opinion, the decisions in other states are practically unanimous in holding that a provision in a life insurance policy to the effect that after being in force the specified time, it shall be incontestable, precludes any defense after the stipulated period on account of false statements warranted to be true, even though such statements were fraudulently made, unless by the terms of the policy fraud is expressly or impliedly excepted from $he effect of such provision. Learned counsel for appellant do not appear to dispute this, but earnestly claim that section 1668 of the Civil Code, necessitates a different ruling in this state. We cannot so read the section, and entirely agree with what is said in the opinion of Mr. Justice Burnett in regard thereto. The answer to the claim is the same that has uniformly been made by the courts of other states, to the claim that the well settled principle that: “fraud vitiates everything it touches, and the person guilty of it is not to be countenanced in any way by the courts” voids such a provision as one against public policy. The opinion contains expressions from other courts on this subject. To these may with propriety be added the views of the court of appeal of New York, expressed in 'Wright v. Mutual Benefit Association, 118 N. Y. 237 , [ 16 Am. St. Rep. 749 , 6 L. R. A. 731, 23 N. E. 186 ], as follows: “It is not a stipulation absolutely to waive all defenses and to condone fraud. On the contrary, it recognizes fraud and all other defenses but it provides ample time and opportunity within which they may be, but beyond which they may not be, established. It is in the nature of and serves a similar purpose as statutes of limitations and repose, the wisdom of which is apparent to all reasonable minds. It is exemplified in the statute giving a certain period after the discovery of a fraud in which to apply for redress on account of it and in the law requiring prompt application after its discovery if one would be relieved from a contract infected with fraud. The parties to a contract may provide for a shorter limitation than that fixed by law and such an agreement is in accord with the policy of statutes of that character. ’ ’

The incontestability provision cannot be reasonably construed, in our opinion, as either expressly or impliedly excepting an action or defense based on fraud. The entire provision, as we read it, so far as applicable here, is that “this policy . . . shall be incontestable after one year from its date, éxeept for nonpayment of premium and except as otherwise provided in this policy.” The language immediately following on which appellant relies, while bearing upon the question of the liability of the insurance company under the policy, obviously has reference to an entirely different matter from that referred to in the preceding sentence. It simply "provides that, in the absence of fraud, all statements in the application shall be deemed representations and not warranties, and no such statement shall avoid the policy unless contained in the written application. As substantially said in Mr. Justice Burnett’s opinion, there is nothing herein to sug gest that a defense on the ground of fraudulent statements will not be barred by the lapse of the time prescribed in the preceding provision. (See in this connection Clement v. Insurance Co., 101 Tenn. 22, 30 , [ 70 Am. St. Rep. 650 , 42 L. R. A. 247, 46 S. W. 561 ].) Referring to the words in the first sentence “except as otherwise provided in this policy,” we find no provision in the policy otherwise providing as to a false statement in the application, unless perhaps the provision under the same heading of “incontestability,” that “if the age of the insured has been misstated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age” is such a provision. It should be borne in mind in construing these provisions óf the policy, that under well settled rules all doubts or ambiguities must be resolved against the insurance company.

As to the other points made by defendant, there is no necessity for adding anything to what is said in the opinion of Mr. Justice Burnett.

For the reasons stated in that opinion, we see no escape from the conclusion that the demurrer, while properly sustained as to the further and separate answer and defense, and to the cross-complaint, should have been overruled as to the first count of the answer, in view of the specific denial therein of the execution of the policy. It should perhaps be said, in justice to the learned judge of the lower court, that it is extremely probable that the existence of this denial was not specifically urged on the argument in the lower court. It is true that the denial may result in no practical benefit to defendant, but, of course, it is impossible for us to know what evidence may be obtainable by defendant on the issue thus clearly made. Defendant was certainly entitled to an opportunity to present its proofs on this issue, in view of the condition of the pleadings, and as each defense must be considered separate and apart from all other defenses', no court can hold in advance of a trial that, given such an opportunity, defendant could not show that the policy was not, in fact, ever executed.

The judgment of reversal to be given shall not be taken as affecting the order of the trial court sustaining the demurrers in so far as the further answer and the cross-complaint of defendant are concerned.

The judgment is reversed with directions to the lower court to overrule the demurrer of plaintiff in so far as the first count of the answer is concerned.

Shaw, J., Sloss, J., Lorigan, J., Melvin, J., Lawlor, J., and Henshaw J., concurred.

Rehearing denied.