Ferlage v. Supreme Tribe of Ben Hur

• Decision Date: 08 May 1913
• Citation: 153 Ky. 645,156 S.W. 139
• Parties: FERLAGE et al. v. SUPREME TRIBE OF BEN HUR.
• Court: Kentucky Court of Appeals

156 S.W. 139

153 Ky. 645

FERLAGE et al. v. SUPREME TRIBE OF BEN HUR.

Court of Appeals of Kentucky.

May 8, 1913

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by Tony Geiger, as executor of Louis Smidt, deceased, against the Supreme Tribe of Ben Hur, which interpleaded Josephine Ferlage and Philomena Clere, and paid the fund into court. Judgment for plaintiff, and Josephine Ferlage and Philomena Clere appeal. Affirmed.

Horace W. Root, of Newport, and B. F. Graziani, of Covington, for appellants.

Hall &amp Adams, of Covington, for appellee.

HOBSON C.J.

The Supreme Tribe of Ben Hur is a fraternal organization incorporated under the laws of Indiana. It maintains local lodges, and its members pay assessments, in consideration of which their lives are insured. Louis Smidt was a member of Esther Court No. 53, the local lodge at Erlanger, Ky. In the year 1905 he took out a certificate insuring his life in the sum of $1,000, making his personal representative his beneficiary. He died in December, 1910, a resident of Kenton county, leaving a will by which he devised the life insurance, subject to the payment of his debts, to Tony Geiger and Elizabeth Geiger; Tony Geiger being named as executor of the will. He left surviving him two sisters Josephine Ferlage and Philomena Clere, who were his nearest relatives. By the constitution and by-laws of the order the personal representative of a member holds the benefit fund in trust for the "families, heirs, blood relatives affianced husband or affianced wife or persons dependent upon a member." The two sisters set up a claim to the insurance money; the Tribe of Ben Hur paid the money into court. The case being heard as between the executor and the two sisters, judgment was entered in favor of the executor. The sisters appeal.

Louis Smidt, at the time of his death, was indebted to Elizabeth Geiger in the sum of $600 for board and nursing furnished him by her during the year 1910. He also owed a doctor's bill of $75, and his funeral expenses amounted to $175. The debts were to be paid out of the insurance money under the will, and the remainder divided between Mrs. Geiger and her husband. The insurance contract was made at Erlanger, Ky. and was a Kentucky contract. The constitution and by-laws of the order are not contained in or attached to the certificate. Section 679, Ky. St. 1903, provides: "All policies or certificates hereafter issued to persons within the commonwealth by corporations transacting business therein under this law, which policies or certificates contain any reference to the application of the insured, or the constitution, by-laws or other rules of the corporation, either as forming part of the policy or contract between the parties thereto or having any bearing on said contract, shall contain or have attached to said policy or certificate a correct copy of the application as signed by the applicant, and the portion of the constitution, by-laws or other rules referred to; and unless so attached and accompanying the policy, no such application, constitution, by-laws or other rules shall be received as evidence in any controversy between the parties to or other rules shall be received as evidence in any controversy between the parties to or interested in said policy or certificate, and shall not be considered a part of the policy or of the contract between such parties."

It is insisted for appellants that this section only applies in a contest between the insurer and the insured, and that it has no application here, as the insurer has paid the money into court, and the contest is between the parties claiming the fund. But it...