#### Sophie Duenser, Administratrix, Appellee, v. Supreme Council of Royal Arcanum, Appellant.

Gen. No. 17,300.

Fbaternaii BENEEtT sooieties — who is “dependent” on member. A member of a fraternal benefit society designated tbe beneficiary as bis wife. Tbe person so designated bad married the member with knowledge that be bad a wife then living. Sucb person lived with bim twelve years before tbe certificate was issued and twenty-six years thereafter until bis death. She was supported during tbe whole period as bis wife and was dependent upon bim for support. Tbe constitution and laws of tbe society provided that tbe benefit might be paid to “persons dependent upon sucb member,” and further “to any person who is dependent on sucb member for maintenance.” Section 1 of tbe statute relating to such societies provides that payment may be made to persons dependent on tbe member. Held, that tbe beneficiary named was “dependent” within tbe constitution and laws of tbe society and tbe statute, and tbe benefit certificate was payable to her.

Appeal from tbe Circuit Court of Cook county; tbe Hon. Charles M. Walker, Judge, presiding. Heard in this court at tbe March term, 1911.

Affirmed.

Opinion filed April 21, 1913.

Rehearing denied April 28, 1913.

Statement by tlie Court. The defendant society issued to William Bandlion October 5, 1880, a benefit certificate for $3,000, in which, “Mary Eve Bandlion (wife),” was named as beneficiary. William Bandlion died May 14, 1906. Mary Eve Bandlion submitted proofs. of death and the defendant society paid the amount of the benefit certificate to her July 5, 1906.

The assured married Mary Anne Schiel, plaintiff’s intestate, in 1853 or 1854. In 1858 he and Mary Ann, his wife, with their children removed to Dubuque, Iowa. He left his family and came to Chicago in April, 1864, but his wife, Mary Ann, lived at Dubuque until after his death.

Mary Eve Bandlion, born Roth, the beneficiary designated in the benefit certificate sued on, lived in Du-buque for several years prior to 1864 and there knew *649the Bandlions and knew that they were living together as hnsband and wife. In 1864 she came to Chicago and here met the assured. March 12, 1868, they were married in Chicago by the Pastor of the German Lutheran Church. They lived together as husband and wife from the time of their marriage until the death of the assured May 14, 1906. In 1871 a daughter was born to them and lived with them as their child until her marriage in 1890. November 19, 1906, Mary Anne Bandlion brought an action of assumpsit against the defendant society to recover the amount of said benefit certificate. She died August 11, 1907, and her daughter, Sophie Duenser, the administratrix of her estate, was substituted as plaintiff. There was a verdict and judgment for the plaintiff for $3,000 and the defendant appealed.

W. S. OppeNheim and George H. Miller, for appellant.

TiNSMAN, RaNkiN and NeltNor, for appellee.

Mr. Justice Baker

delivered the opinion of the court.

The court instructed the jury that if they found that William Bandlion was a member of the defendant society in good standing when he died, and was married to Mary Anne Bandlion, that she survived bim and their marriage was never dissolved or anulled by law; that he lived in Chicago with Mary Eve Roth as her husband, and that she knew March 12, 1868 (the day of her marriage) that he had a living wife, then that Mary Anne Bandlion was entitled to the $3,000 insurance from the defendant and the fact that the defendant had paid said money to Mary Eve Roth did not release the defendant from paying said sum to plaintiff as administratrix of the estate of Mary Anne Bandlion; and further instructed the jury as follows:

“The court instructs the jury that if you find from *650a preponderance of all the evidence in this case that Mary Eve Roth knew that William Bandlion had a wife and family living in Dubuque, Iowa, and that she lived and cohabited with him as his wife in the City of Chicago prior to March 12, 1868, and that on that day she knew that the said William Bandlion still had a wife living, then yon are instructed that in no event was or is the said Mary Eve Roth entitled to the proceeds of the certificate in question in this case and your verdict in this case should be for the plaintiff and against the defendant.”

From the evidence the jury might properly find both that Mary Eve Roth knew at and for at least four years before her formal marriage to the assured that he had a wife living, and that she lived and cohabited with him as his wife prior to such formal marriag’e.

During the twelve years that intervened between this formal marriage and the admission of the assured to membership in the defendant society,- he and Mary Eve Roth lived together in Chicago as husband and wife. They lived among and associated with respectable people. He treated her as his wife, supported her as such, she passed in society as such, and she was dependent on him for support as such. He treated their daughter as his child and supported her as such.

The constitution of the defendant society gives express power to provide that on the death of a member a sum not exceeding three thousand dollars be paid to, “persons dependent upon such member,” and the laws provide that a benefit may be made payable, “to any person who is dependent upon the member for maintenance (food, clothing, lodging or education).”

Section 1 of our statute relating to Fraternal Benefit Societies provides that death benefits shall be paid only to the families “# * * or to persons dependent on the member.”

In James v. Supreme Council R. A., 130 Fed. 1014, it was held that where in a similar certificate “Ella J. Palmer, wife,” was named as beneficiary, the term “wife” was merely descriptio personae and her de*651pendency was not controlled by tbe legality of tbe marital relation existing- between berself and tbe assured.

Tbe laws of tbe defendant provide that if tbe dependency required by tbe laws shall be found not to bave existed, or if any designation shall fail for illegality or otherwise, tbe benefit shall be paid to tbe member’s widow if there be one. • Tbe evidence shows that Mary Anne Bandlion was tbe widow of tbe assured, but it fails to show that Mary Eve Bandlion was not dependent on tbe assured for maintenance. On tbe contrary it shows that for thirty-eight years, from their marriage in 1868 to bis death in 1906, she was at all times dependent on him for maintenance and support and was supported by bbn. Admitting that tbe marriage of tbe assured to Mary Eve Both was void, they had lived together as husband and wife .twelve years before tbe certificate sued on was issued. She, from tbe time of the formal marriage to bis death, was held out and recognized by him as bis wife. They bad a child dependent on them for support. "While it was not lawful for him to live with her as her husband, it was lawful and proper and bis duty to provide for them and the provision be made was in accord with tbe objects of tbe defendant society and tbe provisions of our statute. In Ballou v. Gfile, 50 Wis. 614, tbe Supreme Court defined dependent as follows: “We think tbe true meaning of tbe word ‘dependent,’ in this connection, means some person or persons dependent for support in some way upon tbe deceased.” In Bacon on Benefit Societies, Sec. 261, it is said:

“In accordance with tbe liberal view of tbe Supreme Court of Michigan, in defining who are included in tbe term family, we should say that if any person, relative of tbe member or not, was supported by him, directly or indirectly, or wholly or in part, at bis home or abroad, because of a legal or moral obligation, or merely from affection, such person might be called a *652dependent and be designated as tbe beneficiary of sncb member. But in all cases it would appear essential to apply tbe test of good faitb, for mere capricious liking or temporary liberality in tbe way of gifts would not make tbe recipient a dependent.”

We tbink that taking tbe testimony tending to prove the contentions of tbe plaintiff as true and drawing therefrom tbe inferences most favorable to tbe plaintiff which may properly be drawn therefrom, Mary Eve Bandlion was dependent on tbe assured for maintenance, within tbe meaning of tbe term “dependent” as used in tbe constitution and laws of tbe defendant society, and in tbe statute, and that tbe benefit certificate sued on was payable to Mary Eve Bandlion and not to plaintiff’s intestate.

Tbe judgment of tbe Circuit Court will be reversed, but tbe cause will not be remanded.

i-Judgment reversed.