Duenser v. Supreme Council of Royal Arcanum , 1913 Ill. App. LEXIS 1116 ( 1913 )

Mr. Justice Baker

delivered the opinion of the court.

The court instructed the jury that if they found that William Bandlion was a member of the defendant society in good standing when he died, and was married to Mary Anne Bandlion, that she survived bim and their marriage was never dissolved or anulled by law; that he lived in Chicago with Mary Eve Roth as her husband, and that she knew March 12, 1868 (the day of her marriage) that he had a living wife, then that Mary Anne Bandlion was entitled to the $3,000 insurance from the defendant and the fact that the defendant had paid said money to Mary Eve Roth did not release the defendant from paying said sum to plaintiff as administratrix of the estate of Mary Anne Bandlion; and further instructed the jury as follows:

“The court instructs the jury that if you find from a preponderance of all the evidence in this case that Mary Eve Roth knew that William Bandlion had a wife and family living in Dubuque, Iowa, and that she lived and cohabited with him as his wife in the City of Chicago prior to March 12, 1868, and that on that day she knew that the said William Bandlion still had a wife living, then yon are instructed that in no event was or is the said Mary Eve Roth entitled to the proceeds of the certificate in question in this case and your verdict in this case should be for the plaintiff and against the defendant.”

From the evidence the jury might properly find both that Mary Eve Roth knew at and for at least four years before her formal marriage to the assured that he had a wife living, and that she lived and cohabited with him as his wife prior to such formal marriag’e.

During the twelve years that intervened between this formal marriage and the admission of the assured to membership in the defendant society,- he and Mary Eve Roth lived together in Chicago as husband and wife. They lived among and associated with respectable people. He treated her as his wife, supported her as such, she passed in society as such, and she was dependent on him for support as such. He treated their daughter as his child and supported her as such.

The constitution of the defendant society gives express power to provide that on the death of a member a sum not exceeding three thousand dollars be paid to, “persons dependent upon such member,” and the laws provide that a benefit may be made payable, “to any person who is dependent upon the member for maintenance (food, clothing, lodging or education).”

Section 1 of our statute relating to Fraternal Benefit Societies provides that death benefits shall be paid only to the families “# * * or to persons dependent on the member.”

In James v. Supreme Council R. A., 130 Fed. 1014, it was held that where in a similar certificate “Ella J. Palmer, wife,” was named as beneficiary, the term “wife” was merely descriptio personae and her dependency was not controlled by tbe legality of tbe marital relation existing- between berself and tbe assured.

Tbe laws of tbe defendant provide that if tbe dependency required by tbe laws shall be found not to bave existed, or if any designation shall fail for illegality or otherwise, tbe benefit shall be paid to tbe member’s widow if there be one. • Tbe evidence shows that Mary Anne Bandlion was tbe widow of tbe assured, but it fails to show that Mary Eve Bandlion was not dependent on tbe assured for maintenance. On tbe contrary it shows that for thirty-eight years, from their marriage in 1868 to bis death in 1906, she was at all times dependent on him for maintenance and support and was supported by bbn. Admitting that tbe marriage of tbe assured to Mary Eve Both was void, they had lived together as husband and wife .twelve years before tbe certificate sued on was issued. She, from tbe time of the formal marriage to bis death, was held out and recognized by him as bis wife. They bad a child dependent on them for support. "While it was not lawful for him to live with her as her husband, it was lawful and proper and bis duty to provide for them and the provision be made was in accord with tbe objects of tbe defendant society and tbe provisions of our statute. In Ballou v. Gfile, 50 Wis. 614, tbe Supreme Court defined dependent as follows: “We think tbe true meaning of tbe word ‘dependent,’ in this connection, means some person or persons dependent for support in some way upon tbe deceased.” In Bacon on Benefit Societies, Sec. 261, it is said:

“In accordance with tbe liberal view of tbe Supreme Court of Michigan, in defining who are included in tbe term family, we should say that if any person, relative of tbe member or not, was supported by him, directly or indirectly, or wholly or in part, at bis home or abroad, because of a legal or moral obligation, or merely from affection, such person might be called a dependent and be designated as tbe beneficiary of sncb member. But in all cases it would appear essential to apply tbe test of good faitb, for mere capricious liking or temporary liberality in tbe way of gifts would not make tbe recipient a dependent.”

We tbink that taking tbe testimony tending to prove the contentions of tbe plaintiff as true and drawing therefrom tbe inferences most favorable to tbe plaintiff which may properly be drawn therefrom, Mary Eve Bandlion was dependent on tbe assured for maintenance, within tbe meaning of tbe term “dependent” as used in tbe constitution and laws of tbe defendant society, and in tbe statute, and that tbe benefit certificate sued on was payable to Mary Eve Bandlion and not to plaintiff’s intestate.

Tbe judgment of tbe Circuit Court will be reversed, but tbe cause will not be remanded.

i-Judgment reversed.