
    Joseph Cunat et al. Defendants in Error, vs. The Supreme Tribe of Ben Hur, Plaintiff in Error.
    
      Opinion filed April 19, 1911.
    
    1. Benefit societies—certificate is not void because one of the beneficiaries is ineligible. A benefit certificate is not void because one of the beneficiaries named therein is ineligible under the law.
    2. Same—when eligible beneficiary is entitled to entire amount. If one of the two beneficiaries named in the certificate is ineligible the other is entitled to the entire amount of the certificate, where there was no attempt in the certificate to designate the portion each beneficiary was to take.
    3. Same—statement that persons named as beneficiaries were the member’s cousins is not a warranty. A statement in a benefit certificate that the beneficiaries named, who were husband and wife, were cousins of the insured is not a warranty, and the certificate is not void because of the fact that the wife, only, was a cousin of the insured.
    4. Parties—when right of plaintiffs to sue jointly cannot be questioned in court of review. The right of the plaintiffs to sue jointly on a benefit certificate cannot be questioned in a court of review where the question wás not raised in the trial court, by propositions of law or in any other manner, although there was a stipulation that any defense might be shown under general issue.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    This was an action commenced in the municipal court of Chicago by Joseph Cunat and Mary Cunat, the defendants in error, against the Supreme Tribe of Ben Hur, the plaintiff in error, a fraternal beneficiary association, upon a benefit certificate issued by the plaintiff in error upon the life of Katherine Hubicka for the sum of $1400, in which Joseph Cunat and Mary Cunat were named as beneficiaries. The case was tried before the court without a jury and a judgment was rendered in favor, of the defendants in error for the sum of $1522.50, which has been affirmed by the Appellate Court for the First District, aiid the record has been removed into this court for further review by writ of certiorari.
    
    The plaintiff in error was organized under the laws of the State of Indiana and is licensed to do business in this State, and is authorized to pay death benefits to the families, heirs, blood relatives, affianced husbands and affianced wives of or persons dependent upon its members. In the application the insured stated Joseph and Mary Cunat bore to her the “relationship of cousins.” It appeared from the stipulation of the parties that Joseph Cunat and Mary Cunat were husband and wife; that Mary Cunat was a cousin of the insured but that Joseph Cunat was not related to her, and it was conceded by the defendants in error that Joseph Cunat was not eligible as a beneficiary and not entitled to any part of the money agreed to be paid under the beneficiary certificate issued to the insured. Katherine Hubicka died March 15, 1907. Propositions of law were submitted, some of which were held and others refused.
    Mann & Miller, and Arthur J. Donovan, (Benjamin Crane, of counsel,) for plaintiff in error.
    L. A. Kapsa, and Charles C. Spencer, for defendants in error.
   Mr. Justice Hand

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.  