Sizeler v. Sizeler , 170 La. 128 ( 1930 )

I cannot subscribe to the doctrine announced in the opinion in this case, concurred in by the Chief Justice and the four other Justices, which is that a contract of insurance is sui generis and that there is no law in this state which prohibits a person from insuring his life in favor of his concubine.

If there is any principle of law that is settled beyond controversy, it is the principle that all contracts made in violation of law, good morals, and public policy are utterly null and void, without any legal effect, and will not be enforced by a court of justice.

Chief Justice Marshall in Armstrong v. Toler, 11 Wheat. 258, 271, 6 L. Ed. 468, said:

"Questions upon illegal contracts have arisen very often, both in England and in this country; and no principle is better settled, than that no action can be maintained on a contract, the consideration of which is either wicked in itself, or prohibited by law."

And this has been the uniform jurisprudence of this state as well as every other state in the land.

And where a contract is illegal, immoral, or contrary to public policy, the court will take notice of that fact and refuse to lend its aid in enforcing it, without any plea or suggestion from the litigants.

I feel quite sure that no case can be found in any court in any country which has recognized the validity of a contract entered into in violation of law, good morals, and public policy on the pretense that such contract was sui generis.

Courts universally look to the substance of contracts rather than to the form or the name by which they are called.

That a policy of insurance is a contract there can be no doubt, and it makes no difference whether the stipulation naming a certain person beneficiary is called a donation or is given some other name, or, for expediency and convenience, is called sui generis. If the contract is illegal, immoral, or contrary to public policy, it ought not to be recognized and given effect by the courts under the pretext that, although illegal, immoral, and contrary to public policy, the contract is sui generis peculiar unto itself.

That the contract of insurance in this case by which the insured named the defendant as beneficiary, is an illegal one and contrary to good morals and public policy, will readily be conceded by any one with an open mind who will give the matter one moment's consideration.

The insured was the uncle of the party named as beneficiary. The two were domiciled in this state. They had their actual residence in this state. They knew it was against the laws of this state for an uncle to marry his niece. In an attempt to evade this prohibition of our law, they left the state in order to find some state where there was no legal impediment to their marriage.

After trying one or more states unsuccessfully, they finally found one, Rhode Island, the laws of which made an exception in favor of Jews, and were there married.

They returned to Louisiana, their domicile, and cohabited as husband and wife up to the death of the putative husband.

That this pretended marriage was in violation of express law, that the cohabitation constituted concubinage and rendered both parties subject to a prosecution for absolute felony defined as incest, would not for a moment be questioned by any one.

Article 95 of the Civil Code (1870) in express terms prohibits a marriage between uncle and niece.

And Act No. 9 of 1902 repeats the prohibition, and further declares that no marriage contracted in contravention of the statute in another state by citizens of this state shall have any legal effect in this state.

And to make the public policy of the state more definite and certain, if such was necessary, the Legislature, by Act No. 151 of 1914, declared that if any person residing and intending to continue to reside in this state, who is disabled or prohibited from contracting marriage under the laws of this state, shall go into another state, territory, district, possession, or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state.

Not content with the civil statutes prohibiting the marriage between persons within the degrees of consanguinity designated in the statutes, the Legislature adopted Act No. 78 of 1884 which declares that whoever shall hereafter knowingly intermarry, or cohabit without marriage, being within the degrees of consanguinity within which marriage is prohibited by articles 94 and 95 of the Revised Civil Code, shall be deemed guilty of incest and on conviction thereof shall suffer imprisonment at hard labor for not less than ten years nor more than twenty years.

In view of these statutes and the public policy of the state as fixed in the statutes, the cohabitation between the parties can be regarded in no other light than that of open concubinage.

The Century Dictionary defines concubinage as the act or practice of cohabiting without legal marriage.

The Encyclopedia Brittanica defines concubinage as living together as man and wife without legal marriage.

The law dictionaries of Black and Bouvier define concubinage as the act or practice of cohabiting in sexual intercourse without the authority of law or a legal marriage.

Webster defines concubinage as the cohabiting of a man and woman who are not legally married.

The foregoing definitions are found in the case of Succession of Jahraus, 114 La. 459, 38 So. 417.

The court, after citing such definitions, said that such is and has always been the accepted meaning of the word "concubinage."

From what has been said, the conclusion is inescapable that the marriage, which is regarded as a civil contract, was illegal, immoral, and contrary to public policy, and that the cohabitation following such marriage had no other status than that of open concubinage.

I repeat again that the insurance was likewise a contract in which the insured contracted for and on behalf of his partner with whom he was living in a state of incestuous concubinage.

I say, therefore, that both the contract of marriage and the contract of insurance, in so far as it named the concubine as beneficiary, are absolute nullities as being illegal, immoral, and contrary to public policy.

I find no fault with the decisions cited in the opinion handed down which hold that policies of life insurance, or the proceeds of such policies, form no part of the insured's estate where such policies name a particular beneficiary who survives the insured, and who was capable of accepting.

Those cases, however, have not the remotest application to this case. In all of those cases, a beneficiary was named who was capable of accepting under the policy, and the person insured had the legal and moral right to name such beneficiary.

The opinion of the court does not cite any case from the courts of this state, or from any other state, where a concubine living in open concubinage has been permitted to take more than the percentage allowed by the Code against the right and claim of forced heirs of the insured.

The Vinson Case, 105 La. 30, 29 So. 701, cited in the opinion, was a contest between lawful heirs over the proceeds of a life policy insuring the life of their father, and the issue was whether certain of the heirs who had been named beneficiaries to the exclusion of another heir should collate, and the court held that the amount received belonged to the beneficiaries and was not subject to collation.

The case has no application whatever to this case. Whether the policy in that case was a donation or some other sui generis contract was of little importance.

In the case of New York Life Insurance Co. v. Neal,114 La. 652, 38 So. 485, 487, a policy had been taken out by Shinckle in favor of his concubine. At the death of the insured, the concubine sought to collect the insurance. Her claim was opposed on behalf of the lawful minors of the insured, and the court held that the concubine should recover one-tenth.

"In our view, the designation of the beneficiary named, for many reasons, was a prohibited act. If she could not receive by donation, she could not receive by designation in an insurance policy. * * *

"We have therefore considered the stipulation in the light of a donation. Considered strictly as an insurance, it is still a gratuity under the guise of insurance. Where is the lawful consideration? There is absolutely none.

"Practically there is no difference between a donation, a gratuitous stipulation pour autrui, and gratuitous insurance. An owner of property, head of a family, cannot divest himself by insurance upon his life of all his property, to the injury of his children, and in violation of good morals and public policy. If, in insuring, he violates the prohibition in question, the law strikes down the insurance as effectually as it would a donation or a gratuitous stipulation pour autrui."

What was said in that case is peculiarly applicable to the instant case.

If Sizeler had donated his immovables or all of his movables, either inter vivos or mortis causa, to his partner in concubinage, we apprehend that this court would not have hesitated to reduce the donation to the amount allowed by law.

If that be true, it seems to me to be utterly inconsistent to say that the insured in this case can be permitted to give as a gratuity the whole of the insurance on his life to his incestuous paramour, to the prejudice of his three lawful children.

As said in the Neal Case supra:

"It should not be possible to disregard obligations to one's offspring by insuring, and at the same time strike down donations, where it is manifest that the former may be made as effective as the latter to accomplish a purpose the law reprobates."

So far as we have been able to find, the ruling in the Neal Case has never been departed from or repudiated by this court or any other appellate court in this state until the present case. And upon what basis is it now overruled? Simply and only because a contract of insurance is sui generis, and there is no law of morals or of public policy forbidding a man to insure his life in favor of his concubine.

In the case of Middleton v. Insurance Co. 7 Orleans App. p. 122, that court, through Judge St. Paul, said: "Under the jurisprudence as we read it, a man may not insure his life in favor of his concubine. * * *

"If he do so it will be regarded as a donation and reduced to one-tenth of the amount of his estate. The balance remaining will be distributed as part of his succession," citing the Neal Case.

In the Middleton Case, Judge St. Paul made clear the distinction between the case he was considering, the Neal Case, and that of Succession of Johnson, 115 La. 20, 38 So. 880.

The ruling in the Johnson Case, he said, does not affect the general principle. "That was a case sui generis; the deceased had neither wife nor child, there was no impediment to a marriage between the parties had they seen fit to contract one; the policy provided that the premium should be paid by the concubine and she had paid them all, she had been, not only concubine, but faithful nurse and serving woman to the deceased. * * *

"But these circumstances show that there was very little in the shape of gratuity so far as she was concerned."

The opinion in the instant case takes, as a basis for overruling the Neal Case, certain expressions of Judge St. Paul in Mary Ticker v. Metropolitan Life Insurance Co., 11 Orleans App. page 59, on rehearing.

That was a contest over the proceeds of an insurance policy between the mother of the insured on the one side and the widow and children of the insured on the other side.

The policy had been taken out originally in favor of the insured's wife, but was changed subsequently and made payable to his mother.

On the original hearing, it was held that the assignment of the policy or substitution of a new beneficiary made wholly without consideration was a donation and, as such, invalid if the formalities prescribed for the making of donations were not observed.

On rehearing, the court, through Judge St. Paul, found that the policy reserved to the insured the right to change the beneficiary at will and without the consent of the wife, the original beneficiary. That the change was correct and in proper form and the court had no other alternative but to award the proceeds to the beneficiary last-named, for the contract being lawful must be given its effect, and the court said, for the purpose of defeating the intention of the parties, it could not apply to the contract provisions of law governing contracts of a different nature.

It is true that the court said that a life insurance policy is a contract sui generis, governed by laws peculiar to itself, the outgrowth of judicial precedent and not of legislation.

But it must be remembered that the court was dealing with a lawful contract of insurance with respect to both the original beneficiary and the substituted one, each of whom was capable in law of receiving the insurance, and quoad that kind of a contract a policy of insurance was sui generis.

I imagine that if the substituted beneficiary had been the open and avowed concubine of the insured, the court would have held that the contract was illegal and contrary to good morals and public policy. The court said, referring to the Neal Case, that it could not be reconciled with the long line of decisions, preceding and after it, all holding that the policy or its proceeds never formed any part of the estate of the deceased, except upon the broad principle that it was essentially contra bonas mores to permit a husband and father to waste his substance in insurance premiums for the benefit of his companion in adultery to the prejudice of a legitimate wife and offspring left in necessitous circumstances.

It is impossible to conceive how the last expression of Judge St. Paul on the subject-matter at issue, that of changing a beneficiary, a perfectly lawful contract, both beneficiaries being capable of receiving, can be cited as authority for holding that a man may insure his life in favor of his concubine to the prejudice of his lawful children.

If the holding in this case is permitted to stand, then a man with a wife and lawful children may contract another marriage with his negro maid and take out insurance in her favor to the prejudice of his lawful wife and children, who, perhaps, may be left at his death penniless and objects of public charity.

In my opinion, this decision strikes down all principles of law, of good morals, and of public policy, with respect to contracts of insurance, and that hereafter in making such contracts a person will not be restrained by any principle of law, of good morals, or public policy, all because insurance contracts are sui generis and not governed by any law except such as are peculiar to insurance.

It scarcely needs citation of authority to show that where an impossible beneficiary is named, or one is named who is incapable by law of accepting, that the insurance goes to the estate or heirs of the insured.

The insurance in this case, to the extent of nine-tenths, according to all laws and principles of good morals and public policy, belongs to the three children of the deceased, as was decreed by the lower court.