National Order of Mosaic Templars of America v. Lile

• Decision Date: 14 June 1917
• Docket Number: 8 Div. 10
• Citation: 200 Ala. 508,76 So. 450
• Parties: NATIONAL ORDER OF MOSAIC TEMPLARS OF AMERICA v. LILE.
• Court: Alabama Supreme Court

76 So. 450

200 Ala. 508

NATIONAL ORDER OF MOSAIC TEMPLARS OF AMERICA v. LILE.

8 Div. 10

Supreme Court of Alabama

June 14, 1917

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by Ruthy Lile against the National Order of Mosaic Templars of America. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p 450, Acts 1911. Reversed and remanded.

W.T Lowe, of Decatur, for appellant.

Wert & Lynne, of Decatur, for appellee.

McCLELLAN J.

The appellee (plaintiff) sued to recover from the appellant $100 under a policy of fraternal insurance, payable on the death of Horace Lile. Lile died on October 18, 1913. He had gone through initiation into the appellant order only a few days theretofore. The complaint, on which the trial was had, finally consisted of counts 1, 2, and 3; those numbered 4, 5, and 6 being withdrawn. The defenses interposed were those permissible under the general issue, together with such "good defenses" as might have been specially pleaded.

The second count averred that the appellant insured Lile's life and engaged to pay the "person or persons mentioned in the will made by the insured during his lifetime" the amount stipulated. The demurrer to this count took the objection that it was not alleged that the "will" had been probated; this on the theory that the cause of action stated in the count was predicated of rights established by a "will" made by Lile. It is averred in the count "that said Horace Lile, during his lifetime, by will conveyed the benefits of said policy" to the plaintiff. The demurrer was due to be sustained. By the averment quoted the plaintiff ascribed to the policy the effect of exacting a testamentary disposition, effectually probated, and subjected her right to recover to a transmission of the benefits under the policy through the means of a testamentary instrument duly probated. The count under its manifest theory, was faulty in omitting to aver that the instrument relied on had been duly probated, so as to effect the transfer of the benefits alleged in the count.

According to the laws of the order, and the provisions of the contract of insurance that expressly made those laws a part thereof, no benefit was demandable or payable if the insured died of heart disease within four months from the date the insured became a member of the order. Dr. Emens, who attended Lile in his last sickness, testified that Lile died of "organic heart disease" on October 18,...