171 S.W.2d 239 | Ky. Ct. App. | 1943
Affirming.
The appeal is from an order sustaining a demurrer to and dismissing appellant's petition as amended, wherein she sought a mandatory order to require appellees, who are members of the Board of Trustees of the Firemen's Pension Fund in the city of Louisville, to place her name on the pension rolls.
Appellant married Captain William Arnold in the year 1903. At that time and continuously thereafter until July 1, 1925, Captain Arnold was an active employee of the Louisville Fire Department. On the last-named date, because of physical infirmities, he was retired by the Board of Trustees of the Pension Fund as then constituted, and thereafter until his death on June 23, 1941, he participated in the benefits of the firemen's pension fund. In the year 1917, Captain and Mrs. Arnold were divorced. She remarried and was divorced from her second husband in the year 1924. On October 7, 1935, she and Captain Arnold remarried and lived together until his death. At the time. Captain Arnold's name was *165
placed on the pension list, the law governing the rights of retired members of the fire department and their widows was prescribed by an Act of the General Assembly of 1912, c. 122, as numerously amended and finally compiled in the 1930 edition of the Kentucky Statutes under section 2896a-16 et seq. The Legislature of 1936, c. 73, repealed that act and the amendments thereto in their entirety and enacted another empowering cities of the first class to enact their own legislation providing for pensions for firemen and their dependents. The General Assembly of 1938, c. 152, enacted a new law in respect to firemen's pension funds in cities of the first class, which act is now in effect and is compiled in KRS
The contention of appellant seems to be that because of this provision and because of the fact that she was remarried to Captain Arnold while he was a beneficiary under the Act of 1912 as amended, her right to become a beneficiary of the fund upon the death of her husband became fixed at the time of her remarriage and continued, notwithstanding the provision in the 1938 Act that the widow is not entitled to a pension unless she was married to the employee of the department at the time of his retirement from active duty.
The fallacy of this contention is apparent from the fact that the benefit to be granted to the widow is not a continuation of the pension formerly paid to her husband; *166
it is an entirely separate benefit and does not vest in the widow until the death of her husband. The right to participate in a pension fund which has not been contributed to voluntarily by the pensioner is not a vested right per se. It is only when by the terms of the act providing for the fund, the claimant is shown to become entitled to the benefits that the right thereto becomes vested. Miller v. Price,
Wherefore, the judgment is affirmed.