Stevens v. Woodmen of the World

WORLD, STEVENS, Respondent, THE OF v. WOODMEN Appellant.

(No. 7,660.) 18, 1937.) May 26, 1937. Decided (Submitted March (2d) Pac. [71 898.] William, Messrs. G. Brown, John for Appellant, A. sub- original mitted supplemental brief; Mr. John G. argued orally. Brown the cause Wellington D. Rankin and

Mr. Arthur Acher, Mr. P. Respondent, brief; argued submitted Mr. Acher cause orally. opinion

MR. delivered the of JUSTICE ANDERSON court. brought policy

Plaintiff this action to recover on a of life in- defendant, corpora- surance insurance issued a fraternal system. operating under The lodge tion cause was tried sitting jury, judg- before the court in a without a and resulted prayer with of plaintiff in favor in accordance ment in' generally found complaint. her The trial court the issues judgment. plaintiff. appeal favor is from the was insufficient contends that evidence defendant insured, Stevens, support judgment. A. W. year the defendant. from secured insurance lieu On November a new was issued Stevens for a insurance, but plan of the former a different one under amount; application like he In the died on December 1932. original his for the con- policy, application for the and also in Cushing, designated he Marie policy, version of it into the later was plaintiff, beneficiary, stating instance that she each making not, applica- these cousin. She at the time was insured. policies, and the so related to the tions issuance designated beneficiary policies showing She was relationship insured. her in each to be that a cousin Cordan, died in Lake was married to Dr. Salt Plaintiff who she testified the trial this ease that City in 1901. She Cushing Gushing in 1904. she and J. Later married Albert 1918. Helena, she met the insured about came to together Cushing’s and these men lived until Thereafter she two Cushing 31, policy 1931. of insur- death October had a life on wife, by in favor of his plaintiff the the as ance issued defendant plaintiff. paid and to the this was and theory plaintiff’s case she Stevens were the of It was the death as the result wife at the time of latter’s and husband occurring marriage them at Salt Lake between of a common-law Cushing’s immediately days death and fol- City few after some undisputed evidence is that follow- lowing his there. burial plaintiff from the insured Salt Lake ing return of and the together in Helena and Missoula man and 1931, they lived as regarded such, and as man each other out as were wife, held during acquaintances this inter- their friends and wife val time. insured left a will appears from the record

It have proceeding testified in favor, and plaintiff’s she with this tes- She was confronted probate. admitted to the will

129 contradictory of her timony ease, was on trial of this which probate given pro testimony case. testified in the this She that, Cushing never ceeding that she and were married together as man Stevens, after she met she and Stevens lived wife, Cushing boarder. Other contradic became a testimony on different occa appear tions between her these two us, record these are sufficient sions as disclosed before but testimony hear point. to illustrate the former Plaintiff’s on subject-matter, ing was concerning the not substantive evidence ques presentation only and its in the trial of this cause raised a tion credibility witness, was trial which for the (2d) 22 321, court. In the case Mont. Stagg, Wise v. Pac. 308, showing we said: “After contradiction a witness times, only inconsistent statements other at not is such contra dictory subject- evidence concerning not substantive evidence its matter, but, before, credibility witness remains a question jury. (6 Evidence, for the Jones’ Commentaries ed., 4769; Thompson 748, 2d Angeles Co., v. Los etc. B. 165 Cal. 709; 134 Pac. City Steele v. Kansas Mo. Co., So. R. W. approved by

S. 756.” This statement this court ease of Warren, Osnes Live Co. 103 Mont. 62 Pac. Stock v. (2d) 206. by-laws

Under the constitution and the defendant as well (the 6311 of our as section Codes Colorado statute is the same ours), beneficiary a first cousin could become a policy. occupy life One does fraternal insurance who degrees relationship some one of the with insured enumer 6311, supra, may beneficiary ated in section not be of such (Nitsche policy. Security Assn., 78 Mont. Benefit 1052.) Clearly, plaintiff Pac. was not at the time of the legal beneficiary. issuance of this The defendant con fact, representations tends that because of made application upon amounted a fraud defendant, and that therefore, provisions under the terms of of the certain constitu by-laws, policy tion and the was vitiated because of fraud. policy, provision: however, following contained the “This certificate any except non-pay shall be incontestable for cause

130 dues, it and has been maintained payments ment of benefit period year during life continuously in force one the for a member, if has been provided time the certificate of the year any period of one run time, reinstated at then said shall subject any state from date of and to the last reinstatement ments made secure reinstatement.” such in insured’s

The effect of such incontestable clause the United States in Supreme well stated Court of the opinion Co., the 263 S. case of Mutual Ins. Co. Hurni U. v. 102, 167, 177, Sup. 90, 235, 44 Ed. 31 A. L. in the Ct. 68 L. R. language: true, petitioner for con following “It as counsel tends, with that the is with insured and not contract beneficiary beneficiary, but, nevertheless, it the use of the is for incontestability say and no reason clause is there is insured. meant for his benefit as well benefit of the upon his during It is for the benefit insured lifetime and of the beneficiary. inures of the immediately his death to the benefit supreme As said court of Illinois Monahan v. Metro 136, 68, 119 Co., 141, N. L. R. A. politan 283 Ill. E. Ins. Life 1918D, rights obligations parties 1196: ‘Some of the necessarily upon become fixed of insurance contract beneficiary has an death of the insured. The interest beneficiary insurer all contract, between the and as obligations parties are not determined as rights the insured. The the death of incontestable clause the date of beneficiary inures to of insurance the benefit of the the insured as much as it inures to the benefit after the death ’ ’’ during himself lifetime. insured universally held that incontestable clause al- It is almost year as a cuts off defenses lowing reasonable time such all fraud, specifically expressly enumer- including except those sustaining this are clause. The decided eases view ated where insured has made false numerous, and include cases following etc. health, age, occupation, statements as In- support foreging statement: eases Couch texts and ; 452; 1492; A. 35 A. notes, 6 L. R. L. R. sec. surance, E. 266 Y. N. Co., N. Apter Home Ins. Life

131 1281; Insurance, & 2 Life A. Bacon on Benefit Societies L. R. Insurance, Cooley’s 4483; ed., 875; 544; 37 C. J. 5 Briefs 3d Russ, Mutual 27; 14 Fed. Great Southern Ins. Co. v. (2d) Life Austin, 6 L. R. Reserve Fund Ins. Assn. v. 398, 142 Fed. A. Life (n. s.) Snavely, 1064; Great Western Co. v. Ins. 206 Fed. Life Equitable 20, (n. ; Arnold v. s.) L. A. 1056 40 R. [9th Circuit] 228 Soc., Southern Ins. 157; Assur. Russ v. Great Fed. Life Life Strange, 223 Co., Mut. Ins. 940; 6 v. Co. (2d) Fed. Life Pacific Co., 170 Cal. 199, Ins. 226, 477; Dibble v. Reliance Ala. 135 So. 1917E, 34; Flanigan v. Federal Ins. 171, 149 Pac. Ann. Cas. Life Co., Co., Weil v. Federal 399, 178; Ins. 231 Ill. 83 N. E. Life Ramsey 1915D, 974; 425, 106 246, 264 Ill. N. Ann. v. Old E. Cas. Co., Colonial Ins. Kanter v. 108; 131 N. E. 592, 297 Ill. Life Co., Continental Assur. Ins. 272; 251 Ill. App. Indiana Co. Life McGinnis, (n. s.) 9, 289, 192; v. 180 Ind. N. E. L. R. A. 101 45 New Adams, York Ins. 493, 146; 202 Ind. 176 E. Co. v. N. Life Commercial Ins. Co. App. 630, 50 McGinnis, Ind. 97 N. E. v. 21, Kansas Mut. Ins. 1018; Ky. 93 Whitehead, Co. v. 123 Life New, Ins. 609, 301; S. W. 13 Mutual Co. v. Ann. Cas. 125 Life 41, 61, (n. s.) 27 Rep. 326, La. 51 126 L. A. So. St. R. Am. Co., Becker v. 431; Illinois Ins. 388, 227 Mich. 198 N. W. Life Co., 70, Williams St. Ins. 884; 499; v. 189 Mo. 87 W. Louis S. Security Co., 248 304, 154 68, Harris v. S. W. Ann. Ins. Mo. Life Metropolitan Co., 1914C, 648; N. Drews v. Ins. Cas. 79 J. L. Life Assn., Teeter 398, 167; N. United Ins. 75 Atl. 159 Y. v. Life Co., 411, 72; Wolpin Ins. 54 N. E. 223 v. Prudential App. Div. Chicago 339, Supp. 78; 228 Y.N. Strzelicka v. Fraternal Life Assn., Chinery Ins. 517, Supp. 601; 140 250 N. Misc. Y. v. Metropolitan Ins. 107, 555, 112 182 Co., Supp. Misc. N. Y. Life 556; Virginia, Trust Co. 173 American Co. v. Insurance Life Hardy Co., 706; Mutual Ins. 558, N. 92 S. E. Phoenix C. v. Life 180, Metropolitan 166; 180 N. 104 Ins. Co. v. C. S. E. Life Peeler, Murray 135, 441; 122 176 Pac. 6 A. L. R. 939, Okl. v. Life, 524, 600, 742; 22 53 State 48 Atl. L. R. A. Mutual R. I. Philadelphia Arnold, 97 C. 418, 964, 81 E. Ins. Co. v. S. S. Life Fox, 1916C, 706; Union Insurance Co. v. Ann. 106 Cent. Cas. Provi- Rep. 885; Harrison v. 347, 62, Tenn. 61 S. W. 82 Am. St. 132 659, 696, 616;

dent 141 126 Va. S. 40 A. L. R. Assn., E. Relief 118, Co., Patterson v. Natural Premium Mut. 100 Wis. Ins. Life Rep. 980, 899, N. W. 69 Am. R. A. 253. St. L. provision The reasons for the insertion an incontestable in a of life insurance set forth are Massachusetts Assn. Life Robinson, 30 S. E. L. R. A. as fol- Ga. many cases, misrepresentation “In doubt, lows: no would innocent, insurer; with no intention to defraud the while in possibly might others deliberate intention to defraud be de- veloped. In cases, however, question all the as to there whether any part perpetrate had been intention on the of the insured to insurer, upon and whether such scheme should be a fraud the successful, insured, the death of was to be determined after when involving only longer questions could no heard on not he be the validity contract, the the of but sometimes character as well. insurer, having by premiums paid in his in- hands during his as lifetime, sured well as the accumulations which thereon, permitted questions had been made to raise of this beneficiary controversy nature in between himself and the of policy, said, many has cases was, and as been allowed to entirely insured, with the contract entered into defeat longer in explanation heard of his conduct he could no be ’ ’ vindication of his character. provisions An excellent statement of the of such effect is opinion, parties found in the same wherein it was said: “Where enter into contract which from its nature affords an opportu- nity party upon another, perpetrate of one to a fraud it and is party stipulated therein that the who is liable to be defrauded inquiry specified in which to make shall have a time as to the party, very he is on notice acts and conduct of other may it, fraud of the contract itself that be involved and terms investigation duty upon him commence at once an to into is acts, representations party; of the other if conduct is such that the information which would the time fixed show perpetrated been, by been could the fraud had have that parties ordinary diligence, obtained, then the are exercise time, lapse after the that as by their contract bound time, any- longer fraud is no This not a defense. does violate way abhorred, vi- principle the well-settled fraud is tiates everything touches, person guilty it is not and the it any way by be countenanced in the courts. While all this true, is equally it well settled a contract which has its may foundation a wilful fraud become vitalized and enforce- negligence able party who was the victim the ’’ fraud. Wright In Assn., 237, v. Mutual 119 Y. Ben. N. N. E. Life Rep. 16 Am. St. referring 6 L. A. an incon R. testable provision, recognizes it was “It said: all fraud and other provides defenses ample but it opportunity time and they within which may be, beyond they may be, but which established. It is the nature of similar purpose serves a statutes repose, limitations and wisdom which is apparent to all reasonable It exemplified minds. in the stat giving ute a certain period discovery after the of a fraud in apply which to for redress re account it and law quiring prompt application discovery, after its if one would be * * iS relieved from a contract infected with fraud. No doubt the held removing defendant it inducement out many against prudent hesitation minds of men paying premiums years for ill-afforded a when in-the and series of end payment after premiums, the of the the death and of insured the his testimony others, of and loss the of the claimant instead receiving promised may by of the expensive insurance an be met the to determine that insurance which the lawsuit deceased has many years, paying through been for has not and never an had except existence While fraud is name. obnoxious and should justly contracts, all courts should vitiate the exercise care that imposition annulling fraud should not be successful an and charged to if agreement, the effect that cause be not found and specific time, establishing invalidity within reasonable and the a insurance, of the contract of it should thereafter be treated as valid.”

Answering everything the contention that fraud and vitiates that, therefore, an incontestable clause not cut the de- does off fraud, supreme Kentucky, of the of of

fense court the ease Whitehead, Ky. 21, Ins. Kansas Mutual Co. Life that, rule, W. said: “It is S. Ann. Cas. said a contract, morality re every fraud vitiates and that a sound contracting quires the im that courts should forbid one’s for munity may consequences his All from the fraud. own proposition; but it does be admitted to be sound as an abstract good life, hold when rules not the actual affairs of must be adjusted conditions, In than theories. the case to meet rather theory a bar, given specified full to the for at force and effect is years public another comes time—two after that —and insured, right under cer play, recognizes into which the knowledge circumstances, and peace, for tain to contract stipulated he, nor, if expired, after time neither the has provide, shall dead, he be those for he has undertaken to whom expense question put to and trouble of a trial the be perpetrated procurement whether or not fraud was to policy. does not the consideration of This view exclude parties by stipulation length fix fraud, but allows the to operate can to deceive the fraud of insured time which insurer, recognizes right predicated upon insurer. It matters, experience profound knowledge to a vast such stipulated himself, fixed time, in a he can unearth agree that insured, pro drag light any fraud committed consequences. This clause im from the vast himself tect insurer. benefit, to the insured and It portance and both by giving to increase business the latter assurance enables insurance, utility they neither doubtful of persons lapse given time, families, after shall be nor their original evidence of the lawsuits trans with harassed obtention, when, dim, difficult of or have become shall action lips facts who best are sealed of him knew perhaps, the powerful inducement, this consideration That death. insurance, out poor obscure, to take can especially lapse time, of this reasonable doubted; and after the it necessity, great consolation to the insured of to must, be of has, perhaps, money, secure which he the insurance to feel paid family privation, un- so often be over to endured will Ms lawyers’ or in- permit diminished court fees. To an costs persons company surance to induce insure their lives under of pleasing expectation clause, then, the an incontestable against when dead, undertake, family, the insured is ground the fraud, contest the would to permit be perpetration great possibly the of as fraud as the insured could policy. have committed in the obtention of the There is no more public fraud policy against against of the insured than the insurer. The upheld fraud of incontestable clause is law, purpose upholding fraud, for the not but for the purpose shutting upon harassing alleged off: fraud; defenses based doing, and, adopts merely so law certificate of the given expose insurer that can within time he and render in- any preliminary nocuous fraud statement of the in- ’’ sured. against Again, good it is permit said it morals plain tiff to recover on a contract which was the child of fraud. The supreme Missouri, in court of the case of Harris Security Life supra, Co., contention, stated a similar Insurance and answered gather it as “But we they follows: from their brief that are con proposition by characterizing assail the tent to reasoning being specious sound,’ of the courts as ‘more than ‘at variance morals,’ ‘sophistry,’ good with and inconsistent with the ‘Deca assailing logic logue.’ This method of of the decisions courts, lacking if it demonstrative force or constructive reasoning, may merit, least, have the at of reflecting temper Possibly great writers. judgments and taste of the wholly will great judges cited above not be dissolved slight entirely so free irruption every so from element of reasoning any logical form disproof. dialectical We are indulge hope inclined to we bear mind that great judicial of this demolition consensus conclusion is at only, by particular tempted, use aerial force which is have overthrown the walls of said to Jericho.” have Other courts met contention that a policy through obtained insuranee fraud void ab initio will 136 permit recovery in an

therefore even the face of incontestable clause, here, such and have declined to accede to the force 146 (Stiegler such contention. Co., a Ins. Md. v. Eureka Life 629, supra.) 397; Co., 127 Atl. Metropolitan Drews v. Ins. Life say

When we that a is void as a result of fraud—-and contract by many is expressions appear such the books—all that meant term, according any legal is that a of law will usage, such to court In the performance not lend its to enforce the of a contract. aid Sup. 27 L. Daggs, 108 S. Ct. Ed. case of Ewell v. U. usury statute referred quite that the said: “It is true it was is loan, far as the whole interest contract of so to declares the But these words are concerned, and of no effect.’ to be ‘void deeds, documents, leases, legal such as used statutes and often merely, voidable others, in the sense of mortgages, and bonds, meaning being avoided, and not as that capable of is, that if it had never ex absolutely nullity, as is a transaction act or obligations any rights or under incapable giving rise to isted, conveyances void speak Thus we any circumstances. them, may not others. avoid but meaning creditors creditors, that nonpay estate for of lessee’s forfeiture contain a Leases which condition, declare that on rent, breach other ment of thereupon shall be contingency the demise happening may en meaning forfeiture be void, that null and come It is sometimes option of the lessor. re-entry, by at forced meaning void, by that obtained fraud a deed said that election, treat it as void. All that may, at his party defrauded legal according any usage, is that a term, by the meant can be performance enforce the of a its not lend aid will court of law by into both have been entered appears to which contract carrying into express purpose of contracting parties for of the land.” the law prohibited that which effect court, in case of Ins. v. Mutual Co. own Our Benefit considering 446, a statute which 20, 20 Mont. Pac. Winne, file foreign corporation to a cer failure of a provided render all of its should, by way punishment, tain statement invalid, “We default, said: void while and contracts acts ‘invalid’ giving to the words ‘void’ misled into must not be meaning, for, too a broad as has been observed learned well court, meaning deductions founded on the of the word broadest ‘void’ greater would lead to than found in the most errors are cases, erroneous founded its while those narrower and more meaning (Pearsoll usual seldom err. Chapin, Pa. St. Therefore, say mortgage before the court can made foreign corporation citizen state to a which has failed to required file its certificate statements to be filed before it any can undertake do business within the state is void sense that nullity, it is absolute it should assured of the meaning correct of the it word; should observe the use of the word context of the statute. A void contract is the same none, although may as (Gist voidable one be so treated. v. Smith, Ky. ‘voidable,’ 78 The two words ‘void’ and as pronounced statutes, by often used in the have been Bishop (sec. variable, 610 of his work on Contracts) to be and most in- exact. correct right But a discrimination will lead us to a con- clusion. It cannot be held that the contract of Winne with the plaintiff corporation any legal effect, is without for it has some ’’ effect, by it to but is liable be made void him a person. third

We are mindful that courts an some hold that incontestable operative upon clause which becomes the issuance of the invalid, as is illustrated in Reagan the decision v. Union Co., 555, 189 217, Mut. Ins. Mass. 76 N. E. 109 Am. St. Life Rep. 659, 362, (n. s.) 4 2 L. Ann. A. Cas. R. 821. That deci sion, recognizes the rule however, supra which we have stated as sound. may rely upon plaintiff

It is contended that not t he for pleaded. ineontestableclause the reason that it was not No plaintiff the pleadings mentioned the behalf clause the complaint policy of insurance was attached to the as an ex defendant, however, objection hibit. The without offered in policy containing clause, the the it evidence incontestable circumstances, though before the court. Under these even allegations may plaintiff’s pleadings not have been broad proof, they enough deemed as to admit will be amended at respect necessary judg trial if sustain the this be to 138 provisions 9191, Revised

ment under section Codes. 281, 264 Londan, Ltd., 81 (Baker Mont. v. Assur. Union Soc. of ap cited.) incontestable clause 132, Pac. and cases there question the defense of fraud. pearing bars printed volume exhibits among We have to us certified by-laws Also find defendant. we constitution “I really believe we counsel in record: this statement of constitution the three sets of the offering would save time this state- they go exhibits.” To by-laws, up and then can as judge gave ment trial his consent. Section docu- changing After provides ment the manner of beneficiaries. may appears it the insured of its contents examination observing change desired, often certain for- beneficiaries as as approval of in- malities, is it indicated that but nowhere any change. necessary proposed surer is weight authority,, with reference generally held It is appli in an company policies, that a statement old line relationship proposed of a bene insurance as cation for merely identification, regarded intended ficiary, is (Metropolitan description person. a mere Ins. Life R. 1472; 32 A. L. Atl. Olsen, v. N. H. Vivar Co. 36; P., 52 N. J. L. Atl. Lodge K. Stand Supreme v. 376, 33 N. E. Martin, 133 Ind. & Acc. Ins. Co. ard Life App. 249, 52 Co., 11 Colo. Pac. 105; Lampkin Travelers Ins. v. Paterson, 338, v. 41 5 1040; Equitable Soc. Ga. Am. Assur. Life 302, 348; Slaughter, 186 Ala. 65 So. 535; Slaughter Rep. v. Assn., N. 95 Y. Williamsburgh Masonic Mut. Story v. Benefit Boyce Floyd, (Del.), 431, Ins. v. 474; Baltimore Co. Life 512, 573.) E. 211 Mass. 98 N. It is 515; Brogi Brogi, v. Atl. companies fraternal insurance reference to with also held beneficiary relationship of the named as to the false statement a policy warranty, vitiate the nor does it breach of is not a (Britton Supreme of fraud. v. Council ground Rep. 102, 675, 19 Am. Eq. 18 Atl. St. Arcanum, 46 N. J. Royal 249 Ill. Hur, N. E. Ben v. Tribe 376; Supreme Cunat 1192; A. (n. s.) Supreme 34 L. R. 1912A, 213, Ann. Cas. Lodge, A. W., Hutchinson, App. O. U. v. 6 Ind. 33 N. E.

In the case of Supreme supra, Cunat Hur, Tribe Ben court said: “It is further contended that the insured warranted falsely or represented ‘bearing the statement to me the relation- ship of cousins’ true, to be and that unless the statement lit- was erally true, the benefit certificate void. The benefit certifi- cate contained the usual covenants that the insured warranted representations. the truth of her language quoted above only amounted a direction the insured to the association as insurance, upon death, whom the her paid, should be and did warranty representation not amount to a or false not did have the effect to avoid the benefit certificate.” Supreme

In the case of Britton v. Council Royal Ar canum, supra, court said: person “Whether designated beneficiary a member on his admission as is qualified his or question wholly unimportant which is and immaterial designation to the defendant. The then only made will con long tinue force so as member chooses let it stand. He right change beneficiary has a his often as changes. his will The only upon power limit regard in that is that he cannot designation make a which part will divert of the fund payable on his death appointed from its channel; and whether designates qualified he incompetent or person can no have increasing effect whatever in either diminishing or the defend liability. ant’s The sum which it pay must on the death of a person its contract, member is fixed as well as the persons * * * paid. to whom it must be A falsehood or fraud legal that does injury not result neither can be made the foun ’’ ground dation of action nor the an of a defense. foregoing authorities demonstrate that a lack of

insurableinterest at time the issuance of does not render attempt void To ab initio. to name a per son qualified by ipso who was not beneficiary law to be a does not invalidate policy. facto the entire is, however, generally

It notwithstanding held that clause,

ineontestable the insurer entitled, expiration after 140 want of ground defend on the of period,

of the contestable void would have been policy interest if the otherwise insurable Washington (Bromley of insurable interest. v. for lack Life Rep. 467, 12 17, 121 Am. Ky. 402, 92 St. Co., S. W. Ins. 747; (n. s.) 685, L. R. v. York Ann. Cas. A. Clement New Life Rep. 650, 22, 561, 70 St. Co., 46 W. Am. 101 Tenn. S. Ins. Co., 28 Can. 247; L. R. A. Anctil Ins. v. Life Manufacturers 103.) com said that a fraternal insurance S. And we have C. statutory requirements governing may existing pany not waive 243, (Styles Mont. 296 Pac. Byrne, 89 own conduct. v. its prevent company not incontestable clause does Therefore, the beneficiary the time at qualifications of the raising the from Admittedly, policy. take under the of the insured to the death beneficiary qualified a at the time of not plaintiff was if delivery policy; but her common-law of the the issuance his wife valid, then she was at the insured is marriage with the occupied degree relationship a death, and with his time of persons her who placed within class which the insured supra. under section may beneficiaries Assn., supra, hus- Security In of Nitsche v. the case Benefit beneficiary policy fraternal insurance named as band was they death Prior to her were divorced. his wife. the life of beneficiary qualified not as a he was held that There we words, policy. of the In other proceeds receive could case at the death the insured insurance policy of deceased, for time called the husband the first for none answer. there was Auslander, 302 Ill.

In the case of Columbian Circle v. family' in deserted a wife and New insured had N. E. illicitly Chicago, removed to where he resided York state beneficiary he fra woman whom named another with policy. Subsequent to the death of his insurance wife ternal married; beneficiary in his insurance were he and notwithstanding died. The held that he court thereafter eligible beneficiary list at the time was not within certificate, illegality. did not fail issuance the same effect is the case To De Benio Catholic Order Foresters, App. phase 194 Ill. 616. On another of this case the expresses supreme supra, Case, court of Illinois in the Auslander views, urge "Appellees permit appel our as follows: that to lant to take the fund in this be sanction fraud case would to a immorality. and court, upon This effect of passing this insurance, certificate any way the illicit does not in approve existing relations appellant prior between the insured and the to marriage. their The rule adopted which we should be believe is not upon any based upon such parties conduct of the but ’’ legal principles arising out of the facts. eged

Proceeding now to the consideration all marriage: plaintiff eommonlaw The testified that after the Cushing death by agreement. she and Stevens were married said: She "We pledged were one to another as man and wife. After that was living done we continued man and wife. ’’ That was after came I back from Salt Lake in November. many evidence of showing plain witnesses was introduced tiff and together the insured lived as man in wife, and were such, troduced as and referred each wife; to other man and charged that accounts -were establishments at mercantile to Mrs. Stevens; that all acquaintances, and of these various friends and mercantile establishments them as man and considered wife. disputable presumptions

One of the in this is state that a holding man and woman themselves out as husband and wife entered marriage. (Sec. 10606, have into a of lawful contract Codes; subd. Rev. Board, Elliott v. Mont. Industrial Ace. 451.) (2d) 53 Pac. In the case we said: last cited "The marriage’ recognized as so-called ‘common-law is valid in this state, effective, but, to be there must the mutual consent parties competent to consent and enter able into a ceremonial marriage, assumption relationship, by and of such consent agreement, certain, as of a time followed cohabitation repute.” Cushing unquestionably After the death of plaintiff person capable marrying, was a and the evidence implied clearly supports finding of the court within the rule supra. mindful, however, We are rule is that the that where the relations man and are illicit in their in- between a woman

eeption is exist, presumed is it such a condition shown contrary shown, illicitly that their relations continue until the validity party asserting and the burden upon rests marriage changed to lawful illicit relations to show that the 81 Mont. by marriage. (Shepherd Baker, one & Pierson Co. v. 370, 254 Pac. 887; Persons, 262 Pac. Mont. Welch v. All evidence, disputable presumption, from aside marriage all common-law between effect that there Cushing, death of plaintiff and the insured after the mar impliedly trial that there was common-law court found Ample support riage. found in the such evidence is record finding.

We, therefore, plaintiff qualified bene- conclude that was a ficiary at entitled to of the death of the insured and time Judgment proceeds policy. receive insurance affirmed. Angstman

Assocate and concur. Justices Morris Stewart: Mr. Justice dissent.

I Sands, Dissenting: Mr. Chief Justice a whether presents question case common-law wife This defendant, policy issued insurance can recover on a beneficiary World, falsely repre- where was Woodmen of the cousin insured. the first sented as beneficiary, admit that the Marie testimony pleadings and married, place Stevens, first to Dr. Cordan some Cushing was States; died; he of the United that that part eastern Cushing; years married Albert J. later she that she three about together until 1931 Cushing as man and wife lived and family, W. came into the About Albert Stevens he died. according testimony then, to the of Mrs. as a boarder first place,” Mr. Cushing first “was Cushing, he assumed “the first, Cushing “Q. or Stevens? boarding me.” Who came with goes far Mr. Stevens came be- one, as first Neither A. until he This affairs continued canse was the man.” state of meantime, in 1922 and Cushing, in 1931. In the death whereby Cushing alive, while Stevens made will Mr. was still plaintiff. Cushing had an insur- property he left all of his $2,100 plaintiff ance in favor of in Woodmen prior family. Stevens World to Stevens’ into the advent society $1,000 also took aout of insurance for in the same in 1922 in plaintiff. agent favor When the came to tri- family home to he fill out the for the Stevens insurance blanks inquired the relationship plaintiff applicant to the Stevens. Stevens told him friend, that she was only a agent thereupon on designated his own initiative her as cousin, striking from the blank the insertion him first made designating her otherwise, but, blurred, the blank so it is say difficult to designation give what he did her in the first in- stance. When the blank application reached the head office at Denver it was discovered designated only that she been had “cousin,” and the society directing constitution who may be beneficiaries excludes relatives more distant than the thereupon cousin.” It would appear typewritten “first sheet was applicant Cushing sent to the in which Marie was specifically designated as Stevens, Mr. cousin” “first which statement signed and transmitted back to the home office Mr. Stevens and application. there attached to the special This error negative any correction would claim that designation oversight. the erroneous anwas In the Woodmen of the World made changes some in its doing manner of business and application a new blank was filled out Mr. him, Stevens and a new issued to in certificate again designated plaintiff which he his the as After cousin. first Stevens, plaintiff in probate the death the undertook to proceeding the of Stevens heretofore referred to. This will was contested some and sisters of the deceased. brothers probate proceeding apparently This has abandoned been there being property policy no in the estate. is conceded is not It desig- solely part plaintiff upon the estate. now relies beneficiary policy. ap- nation of herself in the insurance It pears, however, plaintiff $2,100 in 1932 recovered about at society Cushing policy the death of under the of this defendant beneficiary therein, issued on his life as his plaintiff, to the wife. by-laws

The constitution and of the Woodmen of the World Stevens, both at the time of the issuance of the first designate very issued, and also when the substitute was specifically permitted the relatives who were to become bene- policies. society’s Beyond question ficiaries under plaintiff competent was not related to Stevens and was not policy, beneficiary and also the renewal become thereof in issued to Stevens. provides: of the Woodmen the World

The constitution “A only expressly payable to, certificate can made benefit be payment per- of all death shall to, benefits be confined some persons named, or holder relation- son who sustained to the wife, adopted child, ship child, grandchild, parent, of either parent adoption, grandparent, brother, half-brother, sister, half-sister, nephew, niece, aunt, son-in-law, daughter-in- uncle, law, brother-in-law, mother-in-law, sister-in-law, father-in-law, * * step-father, step-mother, step-child, first cousin * . In desires, may applicant membership ease an he so direct that payable benefit his certificate be made to the beneficiaries designated Association, Constitution of the benefit provide, beneficiary expressly certificate shall so or in case a named a benefit certificate does not survive the holder thereof designate Neighbor thereof, has failed successor provided sec. then such cases amount which would beneficiary, surviving, gone have to such named if dis- shall be manner, following in like bursed which shall order: Neighbor child, if the deceased leaves a and no first widow * * * widow; (Sec. 103, grandchild, to his .” Constitu- Session, tion, W., Camp Fifteenth Head June 25 to W. O. July 2, 1928.) relationship plaintiff that the false was inserted in claims knowledge repre- the full and connivance of the policy with therefore, insuring society and, had

sentative of the it full no- denying responsibility estopped from tice of and is the fraud conclusion and an disputes on defendant this that account. The Plaintiff now to situation. claims issue here arises from such cousin, Stevens, and not as be entitled to as the take widow fully quali- designated policy. designation She was Cushing fied to wife of the death of become the Stevens after year prior which the death of Stevens. occurred about a testimony appears Much that Stevens and to establish fact plaintiff together held them- lived as husband and wife and Cushing. selves out as such after death of There is also testimony plaintiff much that did themselves Stevens and hold Cushing, out husband and it is wife to the death of and prior equally established, also plaintiff, well in fact that admitted concubinage years, she lived with in state for Stevens several possibly ten, Cushing. prior to the death of Just was what Cushing’s respecting attitude plain- the relations Stevens and very appear probably tiff does not material in view and Apparently very we reach herein. he conclusions friendly plaintiff perhaps terms and with also with Stevens. that Cushing’s

Mrs. Stevens testified she and Stevens took body burial, Lake to Salt for she and asserts she and Stevens shortly thereafter, ceremony ap- were married but without merely by parently the continuance of their illicit intercourse living. manner of In the case of Clay, Thomas 120 Miss. ‘‘ 1, 2, 190, 197, being illegal 82 So. the court said: The relation inception capacity Clay its and void want of Ben marriage, presumed contract the it must be in the absence of proof contrary relation that the continued after the death agreement as before. If there was an after the Polly death of Clay Virginia Clay Ben Johnson between it must be ’’ proven. The instant ease differs from that plain- case tiff testified that she and were married Stevens their mutual promises witnesses, stated, manner without and the testi- seriously mony that after their return is not refuted to Mon- as husband they did hold themselves out tana wife. The is, puzzling question then before us Did the removal of the dis- plaintiff by death of

qualification Cushing year previous to the death qualify of Stevens plaintiff the as a com- wife mon-law proper become a beneficiary in the Stevens policy, and did she thereupon become beneficiary a solely virtue of such relationship specific designation without of her by Stevens as his wife having after fraudulently been named first cousin policy beneficiary the as a ? designation improper

The plaintiff of the pol- Stevens icy as first a cousin of deceased upon was a fraud the insurance society misrepresentation and a prohibited by the constitution of the Woodmen World, of the a fact known to both Stevens agent the society of the who took his application. In other words, was conspiracy it of representative. Stevens and such policy Inasmuch possession as was in the plaintiff of the prior long Stevens, to the death of and she testified that she paid premiums of most policy she had the her posses- time, sion most wherein on its plainly face she is desig- cousin, nated as first and it appearing further that she was present application signed, may was we assume that ignorant conspiracy. she was not of this The fraud of Stevens complaint and the solicitor is well established. The directly al- leges plaintiff the fact that was not the first cousin Stevens; undisputed. therefore the fraud is There is no evidence that agents society officersor other knew of the fact plain- legitimate way tiff was no related Stevens at the time of policy any the issuance of the or at time before the death of question then Stevens. The arises whether guilty knowl- agent binding edge applicable issuing on the officers society. plaintiff of the defendant insurance relies upon proposition to establish her ease. society specifically constitution part made a definitely policy. authority It limits of its officers to policies naming only the issuance as beneficiaries relatives degrees dependents. Strangers of stated to the blood of the applicant, dependents, clearly other than prohibited. are If Cushing, the death of beneficiary, husband of qualified her to then the wife of Stevens, become such change could policy circumstances revive name his her wife? This living discarded for Stevens— had a husband whom she woman legiti- her says place,” she “first at least Stevens assumed passed She husband, Cushing, mate became “boarder.” “Mrs. She Cushing” “Mrs. and also as Stevens.” collected $2,100 Cushing’s life as his wife in nine insurance on years helped after the issued. Stevens Stevens large spend Cushing money measure to insurance as the nothing plaintiff. earning at common-law husband of He was apparent motive to the time his sudden death. She had no beneficiary encourage living. his in his She She was will. apparently thought doubly acquiring sure of she was whatever possessed wealth Stevens at death. negotiating the applicant,

At the time of Stevens, society, with the established of the accordance receipted of the constitution of copy and for a received charged thereby knowledge he with of society, so became respecting might as persons who be named the limitations All was to other information beneficiaries. this addition agent respect. disposes by in such This of furnished him plaintiff’s is, chief contentions of brief—that one of charged provisions notice of the was with Stevens society long he a member of the as was not when constitution so join application to and to become insured. The he made society, very definitely 3 sections and constitution of beneficiaries, specified could become Marie parties who Cushing was not that class when was issued. She from was, definitely qualified excluded the list of therefore, society. of under the rules beneficiaries organized was Woodmen of the World under defendant The right that state limit the Colorado. statutes of the laws of only character to name beneficiaries organizations this dependents constitution of relatives blood —similar Code, society. Statutes, 2604.) (Colorado Mills sec. That govern (45 Cyc. 171, limiting here. C. statute would R. L. 176.) Insurance, 818; In addition, 2 45 J. Couch on C. 1280; prohibits (sec. Codes) pay- Rev. of Montana the law by such other relatives ment to beneficiaries societies than blood (Nitsche dependents. or v. Security Assn., 78 Mont. Benefit 532, 539, 1052; Styles Pac. Byrne, 243, 253, v. Mont. Pac. These cases hold that payment be made could party qualified prohibition apply where the did not at the time the contract made. attempted payable an contract insurance unauthor- person

ized was absolutely void for the First, reasons: because society naming it violated the constitution insuring unqualified person beneficiary; second, it violated the laws third, of Colorado; Montana, it violated the either laws undisputed one of which was vital under the circumstances here. attempted, There was here a void when contract want of attempt proper beneficiary. by No was made Stevens to name beneficiary. anyone might else as The law shift the beneficiary, Styles done in the Byrne, supra, as was case but there must valid be a contract before there can be a substitution. first This by contrary fraud public policy. contract was induced concubine, especially to favor a under The contract the circum- here, by approved stances established would not be this insur- society by any court, ance nor once the true facts were known. successfully any Such fraud could not be waived obviated party policy and whatsoever. Public the statutes forbid.

A contract unlawful made void common law and every probably the statutes state the Union. The Mon- object statutes as follows: “Sec. 7498. The tana are of a con- part thing agreed, is the which it is on the tract the party receiving consideration, to do or not to do.” 7499. “Sec. object of the contract must be lawful the contract is made, possible and ascertainable the time and is contract performed.” 7501. Where “Sec. a contract has but a be object unlawful, object, and is single such whether whole or wholly impossible performance, of part, vaguely or or so ex- wholly unascertainable, pressed as entire contract is 7502. Where a “See. contract has several void.” distinct ob- jects, lawful, of one at least is which and one at least is unlaw- in part, whole or void ful, contract is as to the latter and valid as rest.” (Equity Co-operative Equity Assn. v. Co-op. Milling Co., 349.) 63 Mont. 206 Pac. “If false or representations fraudulent plaintiff were held out to the an as inducement to the upon execution of the notes in suit which he acted, and in consequence imposed upon of which it was or on ac of count which the notes delivered, obliga were executed and (Lahood tion nullity. becomes Co., Continental Tel. Mont. 157 Pac. In the case Bay & Glass v. Basin Co., 31 21, 31, State Min. Mont. 77 Pac. this court held a con person corporation tract appoint beyond a director statute, time fixed in the is unlawful void en and it denied forcement. controversy depend upon

So much importance and so much question whether this was void or voidable that I give special now consideration to that feature the case. It questioned distinguished is not void, that if the contract was voidable, from particu- cannot be enforced. I refer larly J., beginning to the definition of these in 67 words C. on page 263 under the “Primarily, titles “Void” and “Voidable”: implies utterly incapable word an act of no effect and [void] ratification, and in sense, implies its most limited act all, no at per- effect and a nullity, sense, In one ah initio. haps in the conception strictest and most mean- accurate of its ing, ‘void’ involves an idea of utter ineffectiveness in all situa- tions purposes, leaving and for all the effect of the void transaction the same if place. it had not taken ‘Void’ things things legal are no Nothing effect. can be founded absolutely on what is Generally ‘void.’ speaking, a ‘void’ act incurable, wholly and is per- without or as to all force effect purposes sons and all incapable being being or made A entirely null, otherwise. ‘void’ act is one which is not bind- ing any party, susceptible and not of ratification or confirma- tion; nullity and its thing cannot be waived. A is ‘void’ which against law, is done at very it, doing time no and where person usually bound A ‘void’ the act. act denotes an vice, inherent defect usually transgressions, public relates to usually Things refers to a may public policy. fundamental 150 persons and, as to purposes, ‘void’ as some for some

be being otherwise, yet as to them, incapable of which are valid ’’ persons, purposes. other and effectual for other absolutely things void or the nature of “That is which law ‘relatively forbids to be all, enforced at and that is void’ which individuals, refuses wrong condemns as to en the law ’’ against forbids; force as them. there law instance Metropolitan fore it is void. case Ins. Co. v. Hal Life (decided comb, 1935) language: Fed. contains this supreme “The California court has determined series of attempted agree decisions that no contract can be created required person ment for the services of a to be licensed under protection person served, for the California laws to be implied request acceptance of nor from a for the such unlicensed is no services. There distinction between services malum in se prohibitum express and malum when an statute is involved. entirely Such are voidable but This con contracts not void. prohibited by was statute. ‘Void’ will tract be construed use, sense that effectuate the intent in will best its which language determined from the whole of the of the in will be purpose it strument and the manifest was framed to accom beneficiary, This became void when a not plish.” contract atttempted qualified, (Swanger was named as such. Mayberry, 59 Cal. govern- Hawley, Cal. where owner of a

In Ladda v. growing patent the timber ment homestead before sold thereon contrary prohibition, the to a federal court held that the con- recovery void when made and for the timber tract was cut be- general, “In patent denied. it seems fore was that where an only particular benefit persons, has relation to the enactment only, as ‘voidable’ will be understood at election ‘void’ protection the enactment persons made, pro- for whose they capable protecting themselves; are but that vided enactment, persons relates ‘void,’ capable in such as used themselves, object it has or when some protecting public construction, view, requires the strict which ‘void’ natural, effect; will receive full force its that where ‘void’ used to right secure a to or it public, confer benefit will, rule, incapable as a be held to mean null of confirma- ’’ tion. capable being

“The word ‘voidable’ means avoided or con- effect, may firmed; that which some has force or but which be aside or annulled for some error or inherent vice or defect. set Things they are ‘voidable’ which are valid effectual until by capable avoided This was not are some act.” contract being years many avoided when made or for thereafter. thing “A against law, very is ‘void’ which is at the done ” doing it, person

time of and where no is the act. “A bound contemplates thing doing contract which un of a which is making (Baltimore at the time void.” lawful thereof is 798.) Lodge Co., 66 Process Co. v. Red Mont. Pac. B. distinguished “voidable,” “Void” from legal acts are of no is, every effect. Another a “void” deed test of act or stranger advantage may it, take but not a “voidable” always any What one. is “void” proceeding; can assailed only is “voidable” a proceeding what can be assailed direct distinction, purpose. therefore, for instituted re- gard consequences persons, highly to important, third is nothing absolutely “void,” can be founded on what only, from those which whereas deeds are “voidable” fair titles incurable; may Generally, flow. a “void” act is a “voidable” may by passivity, acquiescence. be cured ratification or A act usually act refers to a public policy; “void” but fundamental procedural. The usually “voidable” one is more often a former private wrong.” public transgression, relates to a the latter to a (67 C. J. (see. 7499) making statute of Montana an unlawful act made, exactly. policy payable fits case This

void stranger was void under section because founded on objection any payment persons hav- public not —the person By insured. ing insurable interest life of the validity 7499 the of the contract must be measured as section Cushing time when Marie was at such time made. qualified therefore, beneficiary; was void—not void- able. definitely specifies object Note that this section that the of the contract must “be when made.” This contract lawful was like a stillborn babe—born It dead. void ab initio. single object, “Where a contract object has but a and such (Sec. 7501, supra.) unlawful.” object

If only insurance, of this contract was void; object entire contract was if the further privi but was the lege society, then section 7502 No apply. would doubt exists that the insurance contract was void inception at its sought enforced, laws of Montana when it is to be and also society insuring the laws of Colorado under which the au In policy.' thorized the the case of Bay Basin & Glass v. State Go., supra, corporation property upon Min. its where a sold retiring corporation consideration that certain officers of the period years should continue officefor a at least three —a beyond by statutes, period the said in that allowed court part: “They being characterize these acts of defendant in wrongful. following violation contract lan and as guage opinion in from the Chicago, Williamson v. & P. R. I. 206, Co., Iowa, 126, Rep. perti 53 4 N. W. 36 Am. is R. R. fully plaintiffs performed ‘In have here: this case the the nent part. side the contract has been exe contract on their On their brought in The action disaffirmance of their con cuted. they Upon contrary, allege performance a full tract. upon part, a breach of the contract upon contract their and part upon they predi the defendant. It is this breach that upon right recover. Their action cate their contract. * í:= * ~Wq fully for a feel satisfied that breach of the con damages no tract, alleged proven, and are recoverable.’ The just quoted we have from which were facts case plaintiffs conveyance the defendant procured the of certain city upon promise Des Moines of a consideration lots in the passenger freight it thereon by defendant that would build and only should be the ones built or maintained it depots, which passenger and city. built maintained both said Defendant

153 freight depots and thereon, but, having depot also built a part another city, brought by action was plaintiffs to recover, as damages, the value conveyed. of the lots It was held that such action upon was based contract, which was illegal and against void as public policy, and, parties being equal fault, the action could not be maintained. From the facts stated in complaint before us, parties, making carrying contract, out the fully which seems to have been executed plaintiffs, performed by defendant for over years, four equally were at fault. Therefore the maxim that ‘as between equal those in fault, possessor’s better,’ case is the applies in all (See its force. Alvey, Setter v. 15 157; Kan. Bagg Jerome, v. 145; Mich. Congress v. Empire Knowlton & Spring Co., 57 518; N. Y. Meyers Meinrath, v. Mass. Rep. 368; Am. Spalding Bank, Ohio, 544; Tyler v. Smith, 18 B. (Ky.) Mon. 793; Freeman, Hill v. 73 Ala. 29 Am. Rep. general rule is thus stated Cyclo Lawson in 9 pedia of Procedure, Law & commencing page prin 546: ‘No ciple of law is better settled than party illegal that a to an con tract cannot come into a court of law ask illegal to have his objects out, carried up nor he set can case in which he must necessarily illegal purpose disclose an groundwork as the of his expressed claim. The rule is in the maxim ‘Ex non dolo malo actio,’ pari oritur ‘In potior est delicto conditio defend law, in short, entis.’ The party will not aid either illegal to an agreement. It leaves parties where it them. There finds fore, neither equity a court of nor court of law will aid one enforcing it, give damages it, for a breach of it or set aside other, or, at the suit of agreement when the has been exe part in money cuted whole or in payment of or the trans property, fer of other lend its aid to recover it It back.’ is unnecessary to cite in support authorities of this text.” in

The contract this ease is controlled favor of defendant, supra. otherwise, 7498, object if not section of this con- only contrary purposes tract was not society-and of the public contrary policy, positively prohibited by but statute misdemeanor and made a therein. spent

Much time was tbe respecting briefs paragraph of the wherein provided it is that the become shall year. incontestable after one In holding view of our that the policy was void ab contestable issue is of no initio conse quence. However, repeat it is well to the statement that fraud is a matter public policy of parties which the cannot waive. The confusion arises from the consideration of cases wherein chargeable part arose mistakes not as fraud on the of the as sured, and other company instances where the insurance waived its privilege to contest and did not pay base its refusal on ground fraud, of Auslander, 603, Columbian Circle 302, Ill. E. 135 N. does not warrant the court of its own motion to inject question into the case the ground of fraud as a for de claring invalidity. such In case, parties, the fraud of all the except the society, glaring flagrant, court, so that this objection the face society, insurance ex could not cuse nullifying itself from obstructing the contract and parties actively participating thereby profiting the fraud from through wrong. their own

In Woodmen, Iowa, 515, 533, Bush v. Modern 152 N. W. this, 162 N. W. where, the court said: case, “But as in prohibited by statute, an act is illegal void, the contract is be and cannot enforced. The rule stated Taylor Corporations (section 299) work on is as follows: ‘If a statute prohibits expressly corporation contract, make a certain void, though expressly so, contract even declared to be incapable ratification; and is void, and that the contract is may unlawful, pleaded by anyone be to an action founded contract; directly conclusively (1) such unless the stat- consequences expressly violating state what the utes it shall contract, be, consequences other than the shall and those are statutory evidently void; (2) prohibition unless the im- or protection persons, may of a certain posed class of who (3) advantage it; adjudge take unless to the con- alone incapable forming right void basis tráete clearly purposes pro- frustrate the action would evident (Lucas Co., Iowa, itself.’ v. White hibition Line Transfer

155 541, 771, 30 N. Rep. 449; W. 59 Am. Modern Krause v. Wood men, 199, 133 Iowa, 452; N. W. Woodmen v. Modern Comeaux, 865, A. 79 Kan. 101 Pac. 17 Ann. L. R. Cas. (n. s.) an action on certificate issued to This was one beneficiary. eligible, law, who was not under the to become a plea waiver, plaintiff As the of said: ‘The the court therein camp, further claims that the clerk of the local to whom assess paid, ments relations plaintiff were knew the between and the deceased, by and that the him the receipt of assessments after change beneficiary the name to a the amounted waiver plaintiff belong persons of the fact that did not to the class of things many who could made beneficiaries. be There are that by can be waived an association of this character, but this is not expressly positively prohibits one of them. The statute the payment any person benefit fund to who is not within the designated class as beneficiaries. This law cannot be repealed ” camp.’ the conduct of the clerk of a local marriage

The fiction of a invented protect common-law innocence, particular parents such as children of careless society. proper demands of the Extension this fiction should carefully guarded. presumption be of a common-law mar- riage only should upon proof assumed be well-established meas- strictly equity justice. principles ured earnestly suggested rights has been It that the bene ficiary insured, not accrue until the death of do and that the contract must measured insurance conditions then ex placed isting. upon has been Much stress the case of Colum 302 Ill. N. Auslander, 53. bian Circle v. E. That case presumed marry held where married man woman, his fact, policy sister and took out a wife’s her favor on the legal first, wife, dying life wife assured thereafter he living woman with whom had married been and had the favor. attempted issued in her The second wife to collect and the child of first wife intervened. The in company placed money surance hands the court controversy between the and left widow the heir. The distinguishable ease from this here insurance ease company validity policy. In denying the cited controversy validity. over case there was no such court might been there said: “Whether or not such certificate have society upon here has void as a fraud the does not arise as it any question fraud paid the fund into court has waived against it,” citing 133 Cal. Rutledge, Woodmen the World v. 545, 274, 640, Hurst, 124 83 N. W. 1105; 65 Pac. v. Mich. Cowin Eq. 61 Rep. 344; Arcanum, 83 N. J. Topper Royal Am. St. Rep. 449. Further difference 47 Atl. Am. St. quotation appears following arises from the from the same ‘‘ society if by-laws provides case: Section 257 of designated as bene the time the death of a member has at who person dependency required ficiary of the second class and the designation beneficiary shall fail ceased, any if shall have or payable otherwise, shall to illegality or then the benefit be for in 1.” The case cited persons or class person mentioned squarely inferior court—seems to be decision of an therein —the paragraph, in short and the is all included one point, in but fully stated; therefore much clearly too are not conditions rights it. of the bene weight attach to True should not until the fixed and determined ficiary in a valid are not considered, they are, finally insured, when but death existing when the contract was made. by the conditions measured subject merely dormant and contract are of the provisions if of the insured the contract during lifetime alteration made. lawful when might illegal made, it legal become policy was when If the it cannot conditions, but if made changed luhen under imlawful happening of conditions that annul upon into life spring 7499, supra, made. Section against it when prohibitions says contract must be proposition. It settles lawful in- the death not at contract is made made. Lodge Co., (See, also, Co. v. Red Baltimore Process sured. Pac. 407, Mont. judgment be re- why should reason a further there is

But plaintiff as lawfully bene- name could not Stevens versed. ficiary when was issued. Her counsel does not claim he could. beneficiary The law does declare ex- widow cept under provisions certain circumstances. The of the con- society pertaining subject stitution of the of 1928 to this are only contained in 103: “A can section be made benefit certificate expressly payable to, of all payment and the death benefits shall to, be person confined some persons named, or who can sustain wife, child,” the holder the either In relationship of etc. case applicant membership desires, may so that the he direct payable benefit certificates be his made to the beneficiaries designated Association, in the constitution benefit certificate shall so provide, beneficiary expressly case a named a benefit certificate does not survive the holder thereof Neighbor designate and the thereof, has a successor failed provided in see. then in such cases the amount which would gone have beneficiary, surviving, named if such shall be dis- manner, bursed following like which shall order: Neighbor the first if deceased leaves a widow and no child or * * * grandchild, widow; to his .” It will be only observed that the law names the widow beneficiary where the cases “does not survive the holder ease, thereof.” condition present Such as the beneficiary named survived the holder of the certificate. She policy Cushing, must under the the cousin, take Marie the if We at all—not as of Stevens. cannot eliminate the widbw provision in beneficiary the constitution that the named be dead provision designating before the alternative becomes widow effective. year plaintiff

Stevens lived after became his common-law wife. He could then have her named as his had lawful bene- husband, if in he ficiary, notify fact was her but he did not joined by society lodge representation that he had a false and that he insert “wife” “first cousin.” wanted to now for Having neglected privilege granted to avail himself of the policy, duty naming shall the court assume the the bene- ficiary? privilege duty appears No in the that character beyond jurisdiction go or in the law. Shall we our

protect (West this confessed harlot? Lodge, Tex. Grand 966.) Civ. App. 37 S. “The courts never lend them- W. selves to the contracts are in violation of enforcement of which repugnant policy.” law public policy, par. and The sec. provides: “If any the statements or in the declarations application membership on the faith of which certificate is found, any respect, untrue, issued shall be then in said case effect, such shall void, certificate be null and and of no and all money may paid, rights have which been benefits which might certificate, otherwise have on account of such accrued absolutely shall be paragraphs forfeited.” Two other disregard constitution are to the we these same effect. Can definite statements the contract?

I recited they appeared have the facts as record and considered the thereon law without reference to the issues presented by pleadings. I the usual order and reverse standpoint. complaint ease The re- now consider the from policy, representation Stevens cites the issuance Cushing cousin, first and that Marie plaintiff, that this was representation allegation cause of action vital general demurrer, which The defendant filed was were false. by showing complaint insufficient on its was overruled. beneficiary named the insured there' was no lawful face void issued, therefore contract was the admissions of the read in connection with on its face when limiting 6311, supra, persons who complaint. See section object 7499: beneficiaries, and section “The named could be must be when the contract is made.” the contract lawful 383, 390, Co., Mont. 233 Pac. Oil & Gas (Corey v. Sunburst sustained, have and the dis- should demurrer been action. to dismiss the be directed should trict court rehearing, was, having petition matter filed Appellant September 23, 1937, argument on at 1937, set for July 9, reargued by presented counsel questions were which time 11, 1937. parties. Rehearing denied October for both Mr. dissenting. and Mr. Justice Stewart Sands Justice Chibe

Case Details

Case Name: Stevens v. Woodmen of the World

Court Name: Montana Supreme Court

Date Published: May 18, 1937

Citation: 71 P.2d 898

Docket Number: No. 7,660.

Court Abbreviation: Mont.