Frank v. Frank

• Decision Date: 10 May 1923
• Docket Number: 3 Div. 602.
• Parties: FRANK v. FRANK.
• Court: Alabama Supreme Court

96 So. 859

209 Ala. 630

FRANK v. FRANK.

3 Div. 602.

Supreme Court of Alabama

May 10, 1923

Rehearing Denied June 14, 1923.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill of interpleader by the Modern Woodmen of America against Nevada Frank and Levada Frank. From a decree of Nevada Frank, Levada Frank appeals. Affirmed.

Brassell Brassell & Brassell, J. Paul Jones, and W. P. McGaugh, all of Montgomery, for appellant.

Hill Hill, Whiting & Thomas, of Montgomery, for appellee.

ANDERSON C.J.

Samuel Moore Frank died in 1922, having in force at the time a benefit certificate for $2,000 with the Modern Woodmen of America; the same being payable to this appellee, Nevada Frank, with whom he was living as his wife when the certificate was issued, and with whom he continued to reside as such until a very short time before his death, when taken to the Insane Asylum at Tuscaloosa. The benefit society admitted liability, but suggested rival claimants to the funds who came in and propounded their respective claims to the same. It seems that the said Frank was lawfully married to the appellant, Levada Frank, at Columbus, Miss., in 1898 and continued to live with her as his wife until about the year 1910, when she left him and returned to Columbus, after being with him a few months in Montgomery. Frank continued to reside in Montgomery and to all intent and purpose lived like a single man when he met and wooed the appellee, Nevada Frank, to whom he was married under a statutory license and by a most reputable minister at Montgomery in the year 1913 and, as above noted, lived with her as his wife until his last illness which resulted in his death. It may be conceded that Frank was never legally divorced from wife No. 1, and we may therefore concede that he was not lawfully married to this appellee, though the evidence shows she had resided with him as his wife in good faith and without any knowledge of the existence of wife No. 1. There was an attempt to show that the appellee knew of the existence of wife No. 1, and of the issue of the first marriage, but the evidence was ore tenus, and the trial court held that the appellee was a dependent upon said Frank within the contemplation of the by-laws in effect, holding that the cohabitation was in good faith on her part; and, independent of the presumption in favor of the conclusion of the trial court on the facts, the weight of the evidence negatives any knowledge on the part of the appellee of the existence of the first wife and children until the fact was divulged to her by Frank while delirious and just previous to his death.

Section 50 of the by-laws of the order sets out who may be beneficiaries, and among others includes the wife or persons dependent upon or members of the family of the member at the time of his death. Section 51 provides for the payment of the certificate in case the beneficiary dies or is disqualified. It is true the appellee was designated as the wife of the member and was not, but being a dependent both at the time he took out the certificate and at the time of his death, she was a beneficiary within the terms of section 50. We cannot agree that, because she was named as wife, when in fact she was not, this precluded her from taking as a dependent and subordinated her claims to those mentioned in section 51. The mere fact that she was designated as wife instead of dependent did not disqualify her as a dependent simply because she was not so designated. She was named as beneficiary, and if she fell under any class permitted she was ...