INSURABLE INTEREST   237

Joseph E. O'Donnell and Ruby C. O'Donnell, who were then living together as husband and wife, and the second premium was paid by Ruby C. Hoffman O'Donnell in cash with money that had been furnished her by Joseph E. O'Donnell. The evidence is barren of any facts tending to show that Joseph E. O'Donnell solicited her to take the insurance in his favor, or any other fact indicating collusion or fraud in the taking of the policy by her. * * *

Other questions are argued, but in view of the conclusion reached it is not necessary to consider them.

The judgment of the court below is affirmed.'

MODERN WOODMEN v. COMEAUX.

Supreme Court of Kansas, 1909.
79 Kans. 493, 101 Pac. 1, 25 L. R. A. (N. S.) 814, 17 Ann. Cas. 865.

GRAVES, J. On March 6, 1907, Robert L. Comeaux commenced this action in the district court of Brown county to recover the sum of $1,000 upon a benefit certificate issued by the Modern Woodmen of America to Carl W. David, in which the plaintiff was named as beneficiary. There was no blood-relationship or family tie existing between Carl W. David and the plaintiff. The beneficiary was designated in the certificate as a "dependent."

The defendant claims that it is not liable to the plaintiff for the reason that he does not sustain the relationship toward the deceased which entitles him to be a beneficiary. The law of the order upon this subject, being section 41 of the by-laws, reads:

"Sec. 41. Who may be beneficiaries. Benefit certificates shall be made payable to the wife, surviving children, or some other persons specifically named in said benefit certificate as beneficiary, who are related to the member as heir, blood-relative, or person dependent upon him, or member of his family, whom the applicant shall designate in his application; provided, however, that no payment shall be made upon any benefit certificate to any person who does not

Accord: Clements v. Terrell (1928) 167 Ga. 237, 145 S. E. 78, 60 A. L. R. 969; American Employers Liability Ins. Co. v. Barr (1895) 68 Fed. 873; Pollock v. Household of Ruth (1909) 150 N. Car. 211, 63 S. E. 940; Albert v. Mutual Life Ins. Co. (1898) 122 N. Car. 92, 30 S. E. 327, 65 Am. St. 693; Gibson v. National Life &c. Ins. Co. (1927 Tex. Civ. App.) 294 S. W. 923, Comment (1927) 6 Tex. L. Rev. 107.

Contra: Finn. v. Metropolitan Life Ins. Co. (1929 Tex. Civ. App.) 16 S. W. (2d) 922, Comments (1929) 78 Univ. of Pa. L. Rev. 117, (1929) 8 Tex. L. Rev. 153; (Semble) O'Connor v. O'Shaughnessy (1926 Tex. Civ. App.) 288 S. W. 842, Comment (1927) 25 Mich. L. Rev. 917.

For the effect of a statute upon insured's power to select his beneficiary, see Hess v. Segenfelter (1907) 127 Ky. 348, 105 S. W. 476, 14 L. R. A. (N. S.) 1172, 128 Am. St. 343.