#### Severa and wife, Appellants, vs. Beranak, Respondents.

*January 30*

February *16, 1909.*

*Marriage of divorced person within year: Invalidity: Common-law marriage: Mutual benefit insurance: Who may be beneficiaries.*

1. Within a year after his divorce a resident of this state was married in Illinois to another resident of Wisconsin. The laws of Illinois, like those of Wisconsin, prohibited such marriage. The' woman knew the man had been divorced but did not know that their marriage was prohibited. She continued to cohabit with-him as his wife in Wisconsin until his death more than a year after his divorce. *Held,*that there was no common-law marriage, and that the woman could not share as beneficiary in the-proceeds of a mutual benefit certificate issued by a society whose by-laws did not authorize her, if not his wife, to be named as-such beneficiary.

2. The fact that the insured was sick for several months prior to-his death and was being attended to and cared for by his supposed wife during such illness did not bring her within a bylaw of the society under which the insured might designate, as-beneficiaries, “persons who are not related to him by blood, but who are dependent on him, or he on them, for their maintenance.”

Appeal from a judgment of the circuit court for Milwaukee county: *J.*G. Ludwig, Oii'cnit *Judge.*

*Reversed,.*

Eor the appellants there was a brief by *Rubin &*Zabel, and': oral argument by *W. 0. Zabel.*

They cited, among other authorities, 3 Am. & Eng. Ency. of Law (2d ed.) 960, 96Í; *Groth v: Central Verein,*95 Wis. 140, 10 N. W. 80; sec. 2330, Stats. (Supp. 1906) ; 19 Am. &Eng. Ency. of Law (2d ed.) 1211, 1213, 1214; *State v.*Tutty, 41 Eed. 153; *Re Wit' v. Lander,*72 Wis. 120, 39 N. W. 349 ; *Brown v. Gates,.*120 Wis. 349, 97 N. W. 221, 98 N. W. 205; *Wendel v. Durbin,*26 Wis. 390; *Spencer v.*Polloclc, 83 Wis. 215,. 53 N. W. 490; *Williams v.*Williams, 46 Wis. 464, 1 N. W... 98; *Yinz v. Beatty,*61 Wis. 645, 21 N. W. 787.

*145*Jolm J.*Ylach, for tbe respondent *Fmilie Beranah,*

cited, besides other cases, *Erame v.*Thormann, 102 Wis. 653, 79 N. W. 39; 1 Bishop, Mar. &Div. ch. 39; 3 Elliott, Ev. § 2486; 15 Am. & Eng. Ency. of Law (2d ed.) 1039; *Randall v.*Kreiger, 23 Wall. 137; 26 Oye. 872; *Meister*v. Moore, 96 U. S. 76; *De Thoren v. Attfy Gen.*L. E. 1 App. Cas. 686; *Ballou v. Qile,*50 Wis. 614, 7 N. W. 561; *Ledebvhr v. Wis. T. Go.*112 Wis. 657, 88 N. W. 607; *Morrison v. Wis. O. F. M. L. Ins. Go.*59 Wis. 162, 18 N. W. 13; Niblack, Ben. Soc. § 147; 3 Am. & Eng. Ency. of Law (2d ed.) 1083, note 4;

Timlin, J.

The appellants are the parents of one Erank Severa, who died July 18, 1907, leaving life insurance for $1,000 in the defendant society. The following persons were designated as beneficiaries, viz.: *Fmilie Beranah,*stated to be the wife of insured, $500; Eelix 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 Eelix 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 *Fmilie Beranah*at Chicago, Illingis, although both he and *Fmilie*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 eases not relevant here, and also declared such marriage void. *Fmilie Beranah,*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 *146was 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 fox 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 (-¿) to wife and the other one- half Q-) in equal parts to the children; but where there are- no children, one half (-¿) to- wife and one half (£) to the parents of the deceased; and in case there is no wife, nor children, nor parents, then the benefit is p-aid to the legal heirs of the deceased.”

The insured left no children. The society paid the money into court, and this contest is by the parents of the insured, the appellants, claiming in their own right and as assigns o-f the brothers of the insured and his heirs at law, against *Emilia Beranak.*The court below held on the foregoing facts that *Emilia Beranalc*was the common-law wife of the insured and entitled to the sum of $500 out of the amount of $1,000 paid into court by the society.

It is only fair to the trial court to note that this ruling was made prior to the decision of this court in *Lanham v. Lanham,*136 Wis. 360, 117 N. W. 787. According to the rule in the case last cited, *Emilia Beranalc*was not in any sense the wife *147of tbe insured. Tbe by-laws of tbe society, above quoted, did not authorize-tbe insured to name ber as a beneficiary. Tbe conclusion tbat there was a common-law marriage between tbe parties under the facts aforesaid cannot be upheld. There was in this case no wife or children of tbe insured, and the benefit under tbe by-law, as we construe it, so far as tbe $500 of which *Brrdlie Beranak*was tbe designated beneficiary is concerned, went to tbe appellants, parents of tbe insured. The remainder they claim by express designation as beneficiaries and by assignment from tbe brothers of insured. There seems to be no provision in tbe by-laws for applying any part of tbe insurance for funeral expenses, and, if so, this would pass also tbe parents of tbe insured as bis legal heirs.

Tbe judgment of tbe court below is further attempted to be supported on tbe fourth finding of fact, as- follows: “Said Erank Severa prior to bis death was sick for several months and was being attended to and cared for by said *Bmilie Beranak*during bis illness.” This finding does not bring her within tbe by-law, “persons who are not related to him by blood, but who are dependent upon him, or be on them, for their maintenance,” even if she were otherwise competent to take under this clause of tbe by-law.

It follows tbat tbe judgment of tbe circuit court must be reversed, and tbe cause remanded with directions to enter judgment upon tbe findings of fact in favor of tbe appellants.

*By the Gowri.*— Judgment reversed, and tbe cause *re*manded for further proceedings in accordance with this opinion.