DeRoller v. Bohan , 211 A.D. 46 ( 1924 )

Taylor, J.:

The defendant Modern Woodmen of America is an assessment fraternal benefit society organized under the laws of the State of Illinois. It appears that in October, 1903, one James Bohan, of Rochester, N. Y., was accepted as a beneficiary member of said society; that in April, 1917, upon the application of said member, a certificate was issued, designating this plaintiff as beneficiary, he being named in said certificate as a “ member of his [James Bohan’s] family.’.’ Section 50 of the by-laws of this society provides, among other things, that “ no payment shall be made upon any benefit certificate to any person who does not bear the relationship as wife, surviving child, legally adopted child, heir, blood relative or person dependent upon, or member of the family of the member at the time of his death.” In August, 1921, said James Bohan died and due proofs of death and of plaintiff’s right to a benefit fund of $1,000 from said society were filed with the corporation, pursuant to the contract. During all the period mentioned said James Bohan was a member of the society in good standing, and the said certificate was of full force and effect. After this action was brought against the society defendants Bohan and Golden were interpleaded, and the benefit fund was paid into court by the society to await the outcome of the action.

The plaintiff contends that it has been established that said James Bohan married plaintiff’s mother when plaintiff was but six years old; that ever since that time plaintiff has been treated as said Bohan’s own son and raised as such; that with the exception of four years spent in the navy, plaintiff lived with his stepfather and contributed to his support and that of plaintiff’s mother; that upon his discharge from the navy plaintiff put into the family purse from his savings the sum of $500; that he paid his mother’s funeral expenses and remained with his stepfather until June, 1920, and supported his stepfather when the latter was not working and took care of him when he was sick; that while plaintiff did not live under the same roof with his stepfather from June, 1920, until the latter’s death in August, 1921, the separation was temporary, due to the fact that the old homestead was sold, that there was a temporary business depression, and that plaintiff was away seeking work; that plaintiff continued to visit his stepfather and did not have the latter dwelling with plaintiff on account of sickness in plaintiff’s family, but that all cordial relations were maintained and appellant continued to contribute to his stepfather’s support; that during the last illness of the stepfather plaintiff visited him frequently and took him provisions and money and finally paid his funeral expenses, amounting to the sum of $225.

Plaintiff contends that under these circumstances the theory of the lower court that the words “ member of the family ” meant merely a person living in the same house; that it meant mere physical presence under a common roof, like a boarder or servant, is too narrow a construction of the language of the by-laws; in short, that the plaintiff was as much a member of the family as would have been a son of the same blood, and that whatever separations occurred were due to necessity alone and were not permanent.

Respondents assert, and correctly, that the society’s by-laws in force and the benefit certificate issued to James Bohan made provision in case of a “ disqualified beneficiary.” But this, of course, does not tend to indicate that this plaintiff became disqualified. The respondents further claim as to the vital point involved, that although the society’s representative realized that plaintiff, as proposed beneficiary, was a stepson of its member, James Bohan, the plaintiff was accepted, not as such, but as a member of the family simply, as one who was not a blood relative, one who was really only eating and sleeping' in James Bohan’s house and helping the family somewhat financially to pay for his board and “ keep; ” that plaintiff married; that the old home was broken up and that plaintiff, at least after June, 1920, maintained with his wife a home of his own; and that at the time of and long before the death of James Bohan plaintiff was not of the household of his stepfather and, therefore, not a “ member of his family ” within the benefit society’s contract.

We feee nothing in appellant’s claim that the society accepted him as a stepson beneficiary under the New York statute, that its act in issuing the certificate was ultra vires or that the society “ has waived its right to object to the appellant as an improper beneficiary.” Even if the society is subject to the laws of the State of New York, as alleged by appellant, it is permitted by subdivision 2 of section 231 of the New York Insurance Law (as added by Laws of 1911, chap. 198) to “ limit the scope of beneficiaries within the above classes.” Therefore!, the society had the right to limit stepson beneficiaries to “ members of the family.” So no question of ultra vires is involved. Nor has the society waived any rights, for it expressly made plaintiff a beneficiary as a member of James Bohan’s family.

Taking up next the main controversy, how can it be fairly said that from the time James Bohan married plaintiff’s mother (plaintiff being then six years old) until fourteen months before the death of James Bohan, over twenty years, plaintiff was not, to all intents and purposes, as fully and intimately a member of James Bohan’s family as a real son would"have been? The' testimony all indicates it; no one disputes it. The court below, in its memorandum of decision, says: “ He was looked upon by Mr. Bohan as a son, and in turn called Mr. Bohan father, deferred to and treated him as such, in fact comported himself more filially than is frequently the case in children of the flesh. That they stood toward each other in the mutually acknowledged relationship of father and son, and with the mother until her death, and thereafter, until Mr. Bohan’s death, constituted one united and happy family, cannot be doubted by any one conversant with the situation.” If this be granted, it must be conceded that from June, 1920, when plaintiff was obliged to leave his stepfather’s home temporarily for financial reasons only, plaintiff continued to show toward his stepfather all the affection and solicitude and attention of a son consanguine. Nothing occurred, nothing was done, nothing was neglected to mar or weaken the old relation. It must be conceded that a blood son, situated as this plaintiff» was, and behaving as plaintiff did during these fourteen months, and on and after his stepfather’s death, would not have lost his standing in public estimation as a member of the family nor would he have lost it in law. Wherefore, then, should this plaintiff be held without the pale? He was more than a servant or a companion or a boarder or some similar mere adjunct of the family circle. He was the son of James Bohan’s wife, held in affection by his stepfather, giving full affection in return, behaving all the time as a good son should behave. What did he do or omit to do at any time which should demote him? '

Tepper v. Royal Arcanum (61 N. J. Eq. 638) is not entirely in point; but in the last paragraph on page 642'is found a discussion of the relative status of a stepchild and a blood child, which is applicable to this case.

Callahan v. Switchmen’s Union of North America (189 App. Div. 5) is not in point; for there the half-sister named beneficiary as “ sister ” (the actual fact being unknown to the society) was specifically barred as a lawful beneficiary by the constitution of the society. In the instant case the society, within the language of its by-laws (§ 50), accepted the plaintiff as beneficiary as a “ member of the family ” of Jame • Bohan. We grant that this is not a concession that plaintiff was accepted otherwise than as a “ member ” who was not a blood relative specifically named in said section 50. However, beyond all this the question is: “ What was the fact as to the character of plaintiff’s membership before and after James Bohan’s death; what is the full significance of the words ' member of the family ’ in the by-laws before us? ” The word “ family ” is variously authoritatively defined, so we get little help from definitions. The word may mean “ a group of relatives making up a household; ” it may mean, as respondents contend here, such a household, including servants or even lodgers. The court below says in its memorandum that if the words “ member of the member’s family ” are intended to indicate a relationship of family as between (certain blood relatives) “ the limiting words ‘ at the time of his death ’ would be devoid of meaning.” This is true. For such blood relatives could not lose their status as “ members ” by doing and experiencing what plaintiff did from June, 1920, to August, 1921. But it does not, therefore, follow that the words first above quoted comprehend, outside of the blood relatives, merely servants or boarders or other similar temporary members of the household. It is easy to undez’stand how a stepson might be a member of a family under such circumstances of non-intimacy that he might easily lose his status as such meznber. And it does not at all follow that a stepson so intimately of the family as this plaintiff was and continued to be could not be a “ member of the family ” of James Bohan within this contract before and all along up to the time of the latter’s death, even though compelled to be temporarily absent from his old home.

It is apparent that at the time this society accepted plaintiff as a beneficiary he was conceded to be some sort of a “ meznber of the family ” of James Bohan. The society does not now dispute plaintiff’s claim. It has paid the money into court and is indifferent.

Everything considered, it seems clear that this plaintiff, up to June, 1920, was in fact a member of James Bohan’s family, that the by-laws of the society can fairly be construed to comprehend him as such, that he continued to be such member until August 20, 1921, and that the court, rather than seeking to find a constricted meaning in the language of the contract prepared by this fraternal benefit society, should, in justice to all these parties, construe it broadly to carry out the evidently benevolent purposes of such organization.

The judgment should be reversed and a judgment entered directing the payment of the insurance fund and appropriate interest to the appellant, with costs.

Hubbs, P. J., and Clark, J., concur; Davis and Sears, JJ., dissent and vote for affirmance in an opinion by Davis, J.