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State ex rel. v. Gordon.

eral rule, established beyond cavil, and so it has been held with respect to bonds attacked, after negotiation, on the ground that the submission was double. Acquiescence in the issuance and sale of bonds bars the right to complain of doubleness in submissions. [Clarke v. Board of Supervisors, 27 Ill. 1. c. 310, 311; Van Hostrup v. Madison City, 68 U. S. 1. c. 297; Sala v. New Orleans, 21 Fed. Cases, 1. c. 221 (No. 12246); Mercy v. Ohio, 17 Fed. Cases, 1. c. 65, 66 (No. 9457); Huidekoper v. Buchanan County, 12 Fed. Cases 1. c. 838, 839 (No. 6847).] No. 6847).] This is interjected because of the somewhat vague but somewhat sinister intimation let fall in the Memphis case and referred to above.

In addition to what has already been written the dissenting opinion of GRAVES, J., in the Memphis case (223 Mo. 1. c. 27 et seq.), contains a further review of the principal opinion in that case which clearly points out the unsoundness thereof.

We are unable to distinguish the Memphis and Carrollton cases on principle, and the efforts made in the Carrollton case to distinguish them fails when it is examined in the light of the principle whose existence is conceded. In these circumstances those cases must be and are overruled.

IV. In view of the conclusion reached in the preceding paragraph, it is unnecessary to enter upon a discussion of the notice given of the election. Compliance with the statute as construed by this court (State ex rel. v. Gordon, 242 Mo. 615) is not difficult. In that case a form of notice, from heading to signature, was set out and approved by this court in Banc.

The alternative writ is quashed. All concur, except Woodson, C. J., and Bond, J., absent.

Notice.

Ordelheide v. M. B. A.

F. A. ORDELHEIDE, Administrator of Estate of WALTER L. LEEK, v. MODERN BROTHERHOOD OF AMERICA, Appellant.

2.

Division One, July 3, 1916.

1. FRATERNAL INSURANCE: Certificate to Legal Representative: Suicide. Suicide is not a defense to a suit on a certificate issued to insured's legal representative by a fraternal beneficiary association licensed to do business in this State. The statute requires payments of death benefits to be made "to the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon, the member," and that statute is a part of all the contracts of such an association, and it cannot claim suicide as an exemption from payment unless it complies with it.

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Certificate Authorized By Laws of Own State. it is not sufficient to claim suicide as an exemption that the defendant is a fraternal beneficiary association licensed to do business in this State and as such has issued a certificate authorized by the laws of its own State. Under such ircumstances it can issue certificates in this State, but to be entitled to claim suicide as an exemption from payment, its certificates must comply with the laws c this State, for such ..n exemption is in the nature of a privilege, and if it issues a certificate not authorized by our law it has no right to claim the exemption.

3. LEGAL REPRESENTATIVE: Does not Mean Heirs. The words "legal representative" infrequently mean "heirs," but in a statute declaring that a fraternal beneficiary association shall not issue a certificate "unless the beneficiary under said certificate shall be husband, wife, relative, legal representative, heir or legatee," the words "legal representative" do not mean "heirs," as is plain fro. the context, but personal representative, or administrator, etc.

AFFIRMED.

Appeal from Warren Circuit Court.-Hon. James D. Barnett, Judge.

Ordelheide v. M. B. A.

Sparrow & Page for appellant.

(1) That part of Sec. 1408, R. S. 1899, designating the class of persons to whom benefit certificates may be made payable is no part of the definition or description of a fraternal benefit society. Westerman v. Supreme Lodge, 196 Mo. 670; Tice v. Supreme Lodge, 123 Mo. App. 85, 204 Mo. 354; Armstrong v. Modern Brotherhood, 132 Mo. App. 171. (2) When Leek had his benefit certificate made payable to "legal representatives related to the member as within 90 days" after proof of death, he meant his heirs or next of kin. R. S. 1899, sec. 1411. (3) The dissenting opinion in this case was concurred in by Division No. 2 of this court, in the case of Armstrong v. Modern Brotherhood, 245 Mo. 158. This court, also, in the Armstrong case, overruled the decision of the Kansas City Court of Appeals in the case of Dennis v. Modern Brotherhood of America, 119 Mo. App. 210, so confidently relied upon by respondent.

Emil Roehrig for respondent.

(1) The defense of suicide is not available where it does not appear that the deceased contemplated suicide at the time of taking out the policy of insurance. Sec. 7896, R. S. 1899. (2) This appellant has failed to avail itself of the benefits and exemptions accorded fraternal beneficiary associations which come within the descriptions of such associations defined by Sec. 1408, R. S. 1899, because of its failure to comply with the terms of Sec. 1408-1410, R. S. 1899. Dennis v. M. B. A., 119 Mo. App. 210; Pauley v. Modern Woodmen, 113 Mo. App. 473; Herzberg v. M. B. A., 110 Mo. App. 328; Baltzell v. Modern Woodmen, 98 Mo. App. 153; Brasfield v. Modern Woodmen, 88 Mo. App. 208. (3) The contract made between appellant and the respondent's intestate Walter L. Leek, is not such a contract as is intended to be covered by and protected by the provisions of the Missouri law relating to fraternal beneficiary associa

Ordelheide v. M. B. A.

tions. R. S. 1899, secs. 1408-1410; Herzberg v. M. B. A., 110 Mo. App. 328; State ex rel. v. Orear, 144, Mo. 129; Toomey v. Supreme Lodge, 147 Mo. 129. (4) It is the contract in a given case that determines the character and legal status of the parties thereto, and in the case at bar the contract alone determines the kind of insurance written by the appellant insurance company, its name or classification by the Insurance Department being immaterial. Aloe v. Fidelity Mut. Life Assn., 164 Mo. 686; McDonald v. Banker's Life Assn., 154 Mo. 628; Baltzell v. M. W. A., 98 Mo. App. 159; Herzberg v. M. B. A., 110 Mo. App. 333; Logan v. Fidel. & Cas. Co., 146 Mo. 115; Westerman v. Supreme Lodge, 196 Mo. 741. (5) The term "legal representative" in the common use of the words and in its ordinary meaning and signification is a term equivalent to "executor" or "administrator." 25 Cyc. 177; Herzberg v. Modern Brotherhood, 110 Mo. App. 328. The meaning of the term in a particular case depends upon and is controlled by the context and the intent with which it is used, as well as by the existing state of things and the relative situation of the parties to be affected. Loos v. Life Ins. Co., 41 Mo. 538.

GRAVES, P. J.-This is the second appearance of this case in this court. It was first here upon the theor that a constitutional question was involved. [Ordelheide, Admr., v. Modern Brotherhood of America, 226 Mc. 203.] We held that there was no constitutional question involved and certified the case to the St. Louis Court of Appeals. About the same time we likewise recertified the case of Dennis v. Modern Brotherhood of America, to the Kansas City Court of Appeals. [Dennis v. Modern Brotherhood, 231 Mo. 211.]

When the Dennis case, supra, was pending here it was suggested that there were adverse views upon the question involved by the St. Louis and Kansas City Court of Appeals. [Dennis v. Modern Brotherhood of

Ordelheide v. M. B. A.

America, supra.] These differences seem to have been at least partially settled by the opinion of the majority of the St. Louis Court of Appeals in the instant case, for that opinion cites approvingly the Kansas City Court of Appeals opinions. Judge REYNOLDS, however, dissents, and certifies.

The contention is sharply drawn. Plaintiff contends that whilst defendant was chartered in Iowa as a fraternal beneficiary association, and whilst it was licensed in Missouri, as such, yet the policy actually issued was an old-line insurance policy, and the statute exempting it from our general statute as to suicides has no bearing. Defendant contends contra.

To make the issue plainer, the plaintiff contends that under the laws of Missouri pertaining to fraternal beneficiary associations, a certificate payable to the "legal representatives" could not be issued, and if so issued it then becomes an insurance policy within the purview of our general insurance laws, and suicide is no defense unless it be shown that the insured contemplated suicide at the time of taking out the certificate or policy. In the record there was no evidence tending to show that suicide was contemplated by Leek when his certificate was issued. The record shows plaintiff entitled to the full amount, if entitled to recover at all.

The judgment of the trial court was for plaintiff for the $1000 and some accrued interest, and the majority opinion of the Court of Appeals by CAULfield, J., affirms this judgment. The case is here in the constitutional way.

The facts of the case are few and simple, and might well be gathered from Ordelheide, Admr., v. Modern Brotherhood of America, 226 Mo. 203, supra. A restatement will take but short space, and we will therefore restate the facts.

The defendant is chartered in the State of Iowa as a fraternal beneficiary association and for some years

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