249 Ill. 448 | Ill. | 1911
delivered the opinion of the court:
It is first contended that the naming of Joseph Cunat in the application as a beneficiary when he was not eligible had the effect to avoid the benefit certificate. This contention cannot be sustained. In Norwegian Old People’s Home Society v. Wilson, 176 Ill. 94, a benefit certificate was issued by the Policemen’s Benevolent Association to Elef Danielson, and the Norwegian Old People’s Home Society and P. J. Danielson, a brother of the insured, were named as beñeficiaries. The benefit certificate provided that one-half of the insurance should be paid to each of the said beneficiaries, and it was held that the benefit certificate 'was not void although the Norwegian Old People’s Home Society was ineligible as a beneficiary, and that one-half of the amount of the benefit certificate should be paid to P. J. Danielson and the remaining half to Daisey E. Wilson, the daughter and only, heir of the insured. To the same effect is Grimme v. Grimme, 198 Ill. 265.
It is next contended that if the benefit certificate is not avoided by naming Joseph Cunat as a beneficiary, Mary Cunat, who was eligible, only takes one-half of the insurance. In the certificate issued to Katherine Hubiclca the fund was not apportioned between the beneficiaries, as it was in the Wilson case, and we think the trial court correctly held that Mary Cunat took the entire fund. In Beard v. Sharp, 100 Ky. 606, the court held that where an ineligible beneficiary was named the entire fund would go to an eligible beneficiary named in the benefit certificate. To the same effect is Caudell v. Woodward, 96 Ky. 646.
It is further contended that the insured warranted or falsely represented the statement “bearing to- me the relationship of cousins” to be true, and that unless the statement was literally true the benefit certificate was void. The benefit certificate contained the usual covenants that the insured warranted the truth of her representations. The language above quoted amounted only to a direction by the insured to the association as to whom the insurance, upon her death, should be paid, and did not amount to a warranty or false representation and did not have the effect to avoid the benefit certificate. Minnesota Mutual Life Ins. Co. v. Link, 230 Ill. 273.
It is finally contended that the action cannot be maintained in the joint names of Joseph and Mary Cunat. The declaration consisted of five counts and the general issue was filed, with a stipulation that any defense could be made under the general issue which could have been made if properly pleaded, and the question of the right of defendants in error to sue jointly does not appear to have been raised in the trial court by any proposition of law submitted to the court and it cannot be raised in a court of review for the first time. In no event did the joining of Joseph Cunat with Mary Cunat as a co-plaintiff injure the plaintiff in error.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.