81 Mo. App. 268 | Mo. Ct. App. | 1899
Such facts as are necessary for a correct understanding of the questions raised by the appeal in this case may be shortly stated in this wise: One Walter IT. Eerbrache, on March 4,1895, became a member of the defendant order- — a fraternal beneficial association, incorporated under the statute of this state — and obtained a benefit certificate promising to pay $2,000 to his father, George W. Eerbrache —with whom the said Walter then resided — in case of the death of said Walter, if at the time of his death he should be a member in good standing in defendant order; that later on, the said Walter, who was a physician, removed to St. Joseph, ip this state, where, on October 2,1895, he was married to the plaintiff; that after a short residence by the said Walter and his wife at the place of their marriage they, with their scanty personal effects, removed to the home of the father of the former, located in Holt county, in this state, where the said Walter, in accordance with the laws of-the defendant order, revoked the designation of his father as beneficiary and thereupon a new benefit certificate was, at his request, issued to him, payable $1,000 to his wife and $1,000 to his father; that the said Walter was at the time of the removal of himself and wife to the home of his father conscious that he was afflicted with an incurable malady, and so returned there to reside and
More than two years after the said amount of benefit money had been paid plaintiff by the defendant order, she brought this suit to recover the $1,000 which had been paid in her presence and with her consent to her father-in-law. There was a trial in the court below, at which the defendant prevailed and the plaintiff appealed.
The decisive question arising on the ap|>eal is whether the father, George W. Eerbrache, was a competent beneficiary under the statute, for if he was the judgment is for the right party — and otherwise it was not. The statute provides that fraternal beneficial societies, of which defendant is one, may provide for the relief and aid of “their members and families, widows, orphans or other kindred dependents of deceased members,” etc., by assessments upon the members of such societies or associations, etc. R. S., see. 2823. Incorporated associations or societies of the class ito which the defendant order belongs are creations of the statute, incapable of exercising any power which is not therein either expressed or clearly implied. And so it has been held that if they attempt to provide for the relief of persons not named in the statute, or shall recognize as beneficiaries such as are not named in-their organic law, their acts are ultra vires. Keener v. Grand Lodge, 38
If the father was a member of the son’s family at the time of the latter’s death, and as well as at the time he was designated and made a co-beneficiary with the plaintiff in the new benefit certificate issued by the defendant order, then there can be no question but that he was a competent beneficiary under the terms of the statute. The term “family” is one of a very comprehensive and varied signification; and, as said .by Judge Ellison in Lister v. Lister, 73 Mo. App. loc. cit. 104: “It may be of narrow or broad meaning as the intention of the parties using the word, or as the intention of the law in using it, may be made to appear.” It may be seen by reference to the standard dictionaries of the English language that this word comes from the Latin familia, the definition of which is household. The approved definition of the latter is “a number of persons dwelling under the same roof and composing a family; and by extension, all who are under one domestic head.” Anderson’s Law Diet., p. 448, and the authorities there cited.
Hoffman v. Grand Lodge, 73 Mo. App. 47, was where the St. Louis court of appeals was called upon to determine the meaning of the said statutory term in an action in some respects resembling the present one. The member of the society in that case resided under the same roof with his sister who was named by him as the beneficiary in the beneficiary certificate issued by the order. In the course of the opinion of the court, delivered in the case, it was said that: “He (meaning the member) was,a member of the family of his sister in the double sense of being her brother and of residing under the same roof and eating at the same table with her. * * * (She) sustained that relation to him which brings her clearly within the class of persons for whose benefit the order was instituted, ‘members and their families.’ ” And further along, in speaking of the same term which appeared in the constitu
It has been repeatedly ruled that the provision made by a certificate like the present, is testamentary to its character. Benefit Ass’n v. Bunch, 109 Mo. 580 — and therefore the beneficiary must sustain to the member at the time of his death the relation required by the statute, or else he will not be capacitated to receive the beneficial provision made by the certificate.
Accordingly, we conclude that both at the time of the issue of the new certificate and at that of the death of the son, the father was a member of the “family” of the son within the meaning of that term, as used in the statute, and therefore the latter was competent to take the part of the beneficial fund as provided for him in the certificate, and that the plaintiff is not entitled to recover the same of the defendant.
In this view of the case, it becomes unnecessary to consider the question of estoppel discussed in the brief of counsel. The judgment of the circuit court will accordingly be affirmed.
