Severa v. Nat'l Slavonic Soc'y of U.S.

• Decision Date: 16 February 1909
• Citation: 138 Wis. 144,119 N.W. 814
• Parties: SEVERA ET AL. v. NATIONAL SLAVONIC SOCIETY OF THE UNITED STATES ET AL.
• Court: Wisconsin Supreme Court

138 Wis. 144

119 N.W. 814

SEVERA ET AL.

v.NATIONAL SLAVONIC SOCIETY OF THE UNITED STATES ET AL.

Supreme Court of Wisconsin.

Feb. 16, 1909.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Action by Frank Severa and another against the National Slavonic Society of the United States and others. From the judgment, plaintiffs appeal. Reversed and remanded, with directions.

Among other references upon the part of the appellant were the following: 3 A. & E. Ency. Law (2d Ed.) 960, 961; Groth et al. v. Central Verein, etc., 95 Wis. 140, 70 N. W. 80; section 2330, Sanborn, Supp.; 19 A. & E. Ency. Law, pp. 1211, 1213, 1214; State v. Tutty (C. C.) 41 Fed. 753, 7 L. R. A. 50; De Wit v. Lander, 72 Wis. 120, 39 N. W. 349;Brown et al. v. Gates, 120 Wis. 349, 97 N. W. 221, 98 N. W. 205;Wendel v. Durbin, 26 Wis. 390;Spencer v. Pollock, 83 Wis. 215, 53 N. W. 490, 17 L. R. A. 848;Williams v. Williams, 46 Wis. 464, 1 N. W. 98, 32 Am. Rep. 722;Vinz v. Beatty, 61 Wis. 645, 21 N. W. 787.

Among other references upon the part of the respondent were the following: Frame v. Thormann, 102 Wis. 654, 79 N. W. 39; 1 Bishop, Marriage & Divorce, c. 39; 3 Elliott, Evidence, § 2486; 15 A. & E. Ency. Law (2d Ed.) 1039; Randall v. Krieger, 90 U. S. 137, 23 L. Ed. 124; 26 Cyc. 872; Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826; L. R. 1 App. Cas. 686; Ballou v. Gile, 50 Wis. 614, 7 N. W. 561;Ledebuhr v. Wis. T. Co., 112 Wis. 657, 88 N. W. 607;Morrison v. Wisconsin O. F. M. L. I. Co., 59 Wis. 162, 18 N. W. 13; Niblack, Ben. Soc. § 147; 3 A. & E. Ency. Law (2d Ed.) p. 1083, note 4.Rubin & Zabel, for appellants.

John J. Vlach, for respondents.

TIMLIN, J.

The appellants are the parents of one Frank Severa, who died July 18, 1907, leaving life insurance for $1,000 in the respondent society. The following persons were designated as beneficiaries, viz.: Emilie Baranak stated to be the wife of insured, $500; Felix Severa, a brother of insured, $200; John Severa, a brother of insured, $100; the appellants, parents of the insured, $100; and $100 for funeral expenses. Prior to the commencement of this action, Felix and John Severa assigned their rights under said policy to the appellants. The insured was a divorced man, and within one year after his divorce and on August 2, 1906, married Emilie Baranak at Chicago, Ill., although both he and Emilie were at the time residents of the city of Milwaukee and state of Wisconsin. The divorce laws of Illinois, like those of Wisconsin, at the time prohibited the marriage of divorced persons within one year from the time the decree was presented except in certain cases not relevant here, and also declared such marriage void. Emilie Baranak, although she knew the insured was a divorced man, did not know at the time she married the insured that there was any legal prohibition against said marriage, and after said marriage continued to cohabit with the insured as his wife in the state of Wisconsin up to the time of his death, and after the expiration of one year from the date of the divorce, which was February 3, 1906. The by-laws of the defendant society provided as follows:

“The member shall designate the payment of his death benefit as follows: (1) To his family; (2) to his blood relatives; or (3) to persons depending on him, whom he shall designate in his application, stating the amounts payable to each. He shall designate the following persons as his beneficiaries: (1) His lawful wife; (2) his children, if they be dead to their children (his grandchildren); (3) his parents; (4) his brothers and sisters of whole-blood; (5) his brothers and sisters of half-blood; (6) his grandfather or grandmother; (7) his nearest relatives other than above mentioned; (8) persons who are not related to him by blood, but are dependent upon him, or he on them, for their maintenance; (9) to National Slavonic Subordinate Assembly and for Slovak national enterprises.”

“If, for any reason, a member should not make a designation of his beneficiaries, or if such designation should become null and void, and if because of errors, or for other reasons, or if the designated beneficiary should die, then the benefit shall be paid one-half (1/2) to wife and the other one-half (1/2), in equal parts to the children; but where there are no children one-half (1/2) to...