Junior Order American Mechanics v. . Tate

Devin, J. While there was no written certificate of insurance issued, it was admitted and found by the court below that the Junior Order United American Mechanics, a fraternal benefit society, acting through its funeral benefit department, contracted with Charles E. Tate, the decedent, then a member of the order, that in the event he was a member of said society, in good standing at the time of his death, the named society, the plaintiff, acting through its funeral benefit department, would pay funeral benefits amounting to $500.00 to the legal dependent of said decedent. It was further admitted that Charles E. Tate died in 1931, and that up to the time of his death he was a member, in good standing, of the order. The by-laws of the society provided that, “Upon the death of a member of this council, in good standing in the funeral benefit association, his legal dependent shall receive $500.00.” The money has been paid into court. Upon the death of the decedent, who was the legal dependent under the terms of the contract and upon the facts found by the trial judge? Legal dependent means something more than one who is deriving support from another. It imports one who has the right to invoke the aid of the law to require support. And the status of a wife living with her husband as being his legal dependent, entitled in law to his support, is recognized by our statutes, C. S., 6508, 4447. In the case of Vaughan v. United American Mechanics, 136 Mo. App., 362, a suit by the mother of the decedent to recover under a contract by this same plaintiff to pay the insurance to his legal dependent, the Court *309 used this language: “The term ‘legal dependent’ is used in a more limited sense than that of lawful dependent,’ which would include all persons except those who might occupy an unlawful relation to the insured. There was no legal duty imposed by law on the insured to support his mother, yet at the same time it would have been lawful for him to have done so. A man’s legal dependents are his wife and minor children, and the law imposes upon him the duty to support them. The term ‘legal’ means that which is according to law. It does not mean permitted by law, but means created by law.” In Applebaum v. Commercial Travelers, 171 N. C., 435, it was held that when the constitution of the fraternal benefit association limited the beneficiary to a person dependent on the member, this meant legally dependent, and that a wife by a bigamous marriage, though named in the certificate of insurance as beneficiary, was not entitled to the insurance. It is admitted that defendant Mrs. Charles E. Tate had continuously lived with decedent during the entire period and up to the time of his death, and that defendant Rosebud Tate, since 1925, had continuously lived separate and apart from him and in another state. However, defendant Rosebud Tate contends that by the paper-writing signed by decedent 29 September, 1924, in which he requested the order to pay his insurance to his daughter as his legal dependent, he designated her as his legal dependent, and that this written designation to that effect, filed by the recording secretary of the local council in the roll book, was impliedly assented to by the local council, and that this had the effect of binding the funeral benefit department of the order, and that by bringing this action plaintiffs have ratified and acquiesced in this designation. But the facts found do not justify this conclusion. It does not appear thát there was any provision in the rules and by-laws of the order that would give effect to this written request of a member made subsequent to the contract, and filed with the recording secretary of the local council, that the insurance be paid to a person whom he mistakenly designated as his legal dependent. The contract at the time it was entered into made the benefits upon his death receivable only by his legal dependent. Ordinarily a member of a fraternal benefit society may change the beneficiary in his policy or contract of insurance, unless restricted by some provision of law or by some rule of the order (Pollock v. Household of Ruth, 150 N. C., 211), but in this case there was an attempt on the part of the member erroneously to define his legal dependent, and to designate one who does not come within the meaning of the term. *310 “When a person’s eligibility as a beneficiary depends upon bis sustaining a particular'relation to tbe member, bis eligibility is generally determinable as of tbe member’s death.” 45 C. J., 167. Tbe institution of action by tbe plaintiffs, where two rival claimants threaten suit, cannot be held to constitute ratification or waiver. Keener v. Grand Lodge, A. O. U. W., 38 Mo. App., 543. The defendant Rosebud Tate bad ceased to be in any sense dependent upon tbe decedent for six years prior to and at tbe time of bis death. His wife alone could be held to be bis legal dependent, and under tbe terms of tbe contract is the’ one entitled to tbe funeral benefits upon bis death, and to tbe fund now in tbe bands of tbe court. We conclude that there was error in tbe court below in bolding, under tbe facts presented, that defendant Rosebud Tate was entitled to tbe fund, and tbe judgment to that effect must be Reversed. WiNBORNE, J., took no part in tbe consideration or decision of this case.