
    No. 7869.
    Court of Appeal-Parish of Orleans.
    Charles Walker--vs--Young Mens St. Michael Benevolent Mutual Aid Association.
    Dlnkelsnlel. J.
   Dlnkelaplel. J.

Tita plaintiff, in bis capacity as tutor of his minor grand chi1dr*n, instituted suit in the Civil Eistriot Court for the Pariah of Orleans against the defendant corporation, alleging that they were indebted to the minora in the full sum of $350.00., with 5$ interest per annum from July 10th. 1914 until paid for this, to-wit}

That their father, Leon Dejan, vas a member in good standing of defendant corporation during his life and oontinueing as suoh up to the time of his death; that he conformed to all the rules and by-laws of said assoolation; paid all of the dues and assessments levied against him and therefore was entitled to all of the benefits paid by said association to the heirs or benefiolaries of it's deceased, members after their da death.

That Dejan died in this City on 14th. July, 1914, while a member of defendant assoolation in good standing leaving Leona, Hasel and ffilfred Dejan, his minor ohildren, as his sole and only heirs at law.

That ho is informed and beleives, that among the benefits paid by the said assoolation to the heirs of it's deceased members is the sum of $60.00., whioh it allows and pays for the funeral of euoh member, and in the event that the funeral is not paid for by the assoolation, it, under it's by-laws paye over the amount thereof to the heira of the deceased member.

That the aforesaid association did not pay for the funeral of the deceased. Dejan, and therefore the aforesaid minors are entitled to recover $60.00., the amount of said funeral.

Plaintiff further alleges, that in addition to the funeral benefit, said aasooiatlon allows to the heirs or benefioiarlea designated by it's deceased mender, the d sum of fifty oonta for eaoh member of said aasooiatlon in good standing at the time of his death, and that plaintiff is informed and beleivss that at tkima time of said Dejan1s death there were 385 members in good standing, and that an assessment of fifty cents was levied against eaoh of said members and oolleoted by said aasooiatlon, and whioh plaintiff id entitled to recover.

Plaintiff further alleges, that said Dejan designated no benefioiarywith said association to whom the death benefit should be paid, so far as plaintiff knows, and that in the event it should oocur that ons has been designated, then plaintiff shows that the said designation of benafiolary is null, void and of no legal effect, beoause suoh designation has been made in violation of the public policy of the State, and secondly, because the person so designated was the oonoubine of the deoeaaed to the knowledge of defendant's officers and members, and is incapable as auoh to reoeive any suoh benefit, because plaintiff is entitled to recover same for the benefit of the minors. Plaintiff prays for judgment accordingly.

An exception of no oause of aotion was filed, referr ed to the merits and subsequently an answer whioh alleges; admitting all the allegations of fact in the petition oontained except the allegation that the minors, Leona. Hazel and Wilfred Dejan, are the children ami sole and only heirs of Leon Dejan, whioh allegation is denied by defendant for want of suffiolent information and baleif.

Anauorin^, ^..ra^r-vn 4 of tno petition, du*oruiu-üt denies all the allegations therein contained and avers, that funeral benefits of deceased D.embers are boverned by Article 16, Section 33 , of iVs by-laws, whioh reads

"The sum of fifty-five dollars v/ith five dollars additional for the wake, viill be allotted by the secretary for funeral expenses. Tfhenever the family of a deoeaBcd member shall have supervision of the funeral, the president of the releif committee will imraeadiately after the death of said member inform then that the allowance for funeral expenses will be paid at it's earliest convenience".

Defendant alleges, that they have been informed and beleive, that tne funeral of the deceased v/aa not held under the supervision of the tutor of auia minors, nor under the supervision of the minors, but on the contrary \u.s neld uad^r the supervision uX »a-.ry Benjamin at her own home; that the said tutor and said minors have incurred no expense whatever on account of said funeral; that if defendant is indebted to anyone in the amount of said funeral benefit and wake, it is to Uary Benjamin, who has nade a cldin on defendant for the pay? ent of sane as tlu? beneficiary designated by the deceased, as well as by virtue of the fact t:-at the funeral was held under her supervision.

Defendant, further sufcotnntailly answering, quoting Section '¿4 of Article 16, * that it .¡mat be paid to the beneficiary of the deceased, and if a member fails to designate any person the association will not be responsible for the payment of said contribution". And again, defendant claims that said minors wore never designated bj the deceased with the association as the persone to whom his death contribution should be paid, and that under Article 16- 3eotion 34 of defendants by-laws, the minors have no rights whatever to any doath contribution on the death of the deoeased, but aver that the deceased, Dejan, designated Mary Benjamin, witn defendant association, as the person to whoir. t'ne death benefit of the deceased should be paid.

Aa to the allegation in said paragraph of the petition, that Mary Benjamin was the concubine of the deoeased, defendant denies same for want of sufficient information upon which to form a beleif. Hence prays for judgment in it's favor.

Without attempting to quote lltteraliy the testimony of the various witnesses in this oase for it will accomplish no use or purpose, it is sufficient to say that it ha3 been proven to our satisfaction beyond poslbility of a doubt, that the deceased Dejan was the father of the minors and that plaintiff was their tutor; that the wife of Dejan died prior to his own death; that for years ho lived with Mary Benjamin whom he introduced as hia wife never having married her and she wae, according to the record, his oonoubine, and the evidence satisfies us of this beyond a reasonable doubt.

The attempt of the association to screen Mary Benjamin, .the oonoubine, is beyond it's power. The faot remains that she was the mistress of the deoeased for years, had llvad with him in open adultry and had been Introduced to friends and acquaintances as his wife. Even the children of the deoeased 'were at times admitted to the home of the deoeased whloh was occupied by him and his oonoubine; that they oooupied the same room and the same bed and lived together pretending to be what they were not.

Thia question has bean frequently decided by our Supreme Court and by this Court. The law is plain and there oan be no questioning of it.

In the oaae of Urs. Odile Middleton vs. Metropolitan Life Inauranoe Co., to be found in the 7 court of Appeal Reports at page 133, the syllabus readi-

" A sian may not insure his life in favor of his oonoubine. If he do so it will be regarded as a donation and reduced to one tenth the amount of his estate. The balance remaining will be distributed as part of his succession.
" A1J Courts have authority to safeguard the Interest of minors when the same áre in jeopardy and * the minors are unrepresented.» Succession of Johnson, 115 La. 30. Life Insuranoo Co. vs. Hail, 114 La. 653.

In 14 Court of Appeal, 683. Urs. Jena Thomas Vs. Young Hens Magnolia Benevolent Association, the Syllabus reads:-

»’Jher.' the by-laws of a Mutual Benefit Soolety provide a death benefit for the wife of the deoeased menber, ehe aoquires a right thereto by k virtue of the by-lawsj and where a member registers his oonou-bine as his wife, it is froud upon the association which cannot benefit the oonoubine or prejudice the lawful wife.”

And the Supreme Court of our State in the case of Hew York Life Ineuranoe Co., vs. Neil et. al,. an/ * Could the assured divest himself of iHo amount, as he did, to invest it for the benefit of the payee named in the polioy, is the question for our determination.

"Ho evidence proves that there was any oontraotual obligation between those parties, nor does it appsá* by testimony that she nursed or took oare of the insured, or t,:at he was indebted to her. V.'e do not oonalder that indebtedness by the assured to the aesor-tod beneficiary.is in this case, ao it ie not 3tatea in the pleading that aha had any claim against him, nor made to appear by testimony.

"On the face of the papers, the insurance ?;as gratuitous, are not ■-arr'-'nted in concluding that the insurance had any tiling about it in the nature of an onorous donation. It was a donation pure and simple, made under the form of insurance.

"Those who have lived together in open etaisisidii oonoubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables, it can not exceed one tenth part of the whole value of their estate."

"Thoso who afterwards marry are esoepted from t-.is rule." C. C. Art. 1481.

At page G5S the Court goce on to say:

" ~e are then to view the contract as covering a gift. The article of the Cods oitad supra prohibits such gifts for the 'sake of public order or good morals’ Civ. Code, Art. 11. And whatever is done in oontruvention of anoh a prohibitory law is void."

'In the oase of Eselia Richardson Tidow of Le Bray vs. Bistriot Grand Lodge No. 31¿í, Grand United Order of Odd Fellows, this Court hold: "The measure of power vested in the Board of Directors of defendant company is determined by Its charter and by-laws, and the Board's uotion in oxoess tnoreof is not binding upon the corporation." 8 La. 361. 3 Rob. 307. 3 Ann. 314. 8 Ann. 380. 83 Ann. 1833. 39 Cyc. 108, in relation to mutual benefit insurance; "Uhorc the classes of persons to whom benefits may be paid prescribed by statute or by the society's charter of incorporation, neither the society, nor a member, nor the two combined, can divert the funds from the class ea prescribed; the eooiety had not power to issue a certificate payable to a person not belonging to one of those clashes, and the designation of a person thus inellgable ae a beneficiary is nugatory.

■Independently of the artloles of the constitution of the order it has been deolded that where a beneflolary is outside of the olasses ellgablo as beneficiaries, the members who are within suoh olasses are entitled to the insurance.* Citing a great many authorities.

We are therefore of the opinion, that both in law and morals, the tutor, the plaintiff in this Üfabu</c/u£¿i***-case in behalf of his minors^ is entitled to the full amount of his claim aa prayed for, and that the defendant association is compelled to pay him in full the sum Of $350.00. with 5$ interest from taya 10th. July 1914 until paid and all costs of both Courts.

Judgment of the lower Court is reversed and judgment rendered aooordlngly.

-Judgment Reversed-  