Starnes v. Atlanta Police Relief Ass'n

Russell, J., and Powell, J.,

specially concurring: With the result reached, and with most of what is said by the Chief Judge in the opinion filed by him, we fully concur; however, we think that the word “family” should be'given an even broader meaning than he has given it. Upon the theory, well recognized bjr the courts in dealing with insurance and similar beneficial contracts, that a death benefit bought and paid for by a person in life should not fail upon liis death for lack of a- beneficiary competent to take, no hesitancy has been shown, in the construction of sueli contracts, in giving great elasticity to the meaning of words where necessary to do so in order to find a beneficiary.. ■ Such a rule of constru: - tion is desirable from the standpoints both of the- insurer" and, b£ the insured. One of the chief objections hitherto made against fraternal insurance is that it does.not offer freedom in.-th,e designation of beneficiaries,, and that the member is liable to.-pay for i.nsur-ance which can never be collected, by reason of some .strict anditgohifical construction of the limitations-.imposed-, as to-who- shalh-bQ, a *245beneficiary. The result of a course of judicial construction which liberally construes such contracts, so as to make it more certain that the benefits bought will reach some person or persons whom the member would really wish such benfits to reach, is, therefore, to give popularity to this form of insurance. In such contracts the word “family” has been most liberally extended, wherever necessary to effectuate the beneficial purpose. It is a word which must vary in meaning according to the conditions surrounding the member at the date of his death. From' a review of the decisions, we deduce the following order of precedence which should ordinarily be observed in- determining who are entitled to take under the words “family of the member,” or similar designations:' (1) "Wife and unmarried children, minor or adult; or, if no unmarried children, (2) wife alone; or, if no wife, (3) unmarried children alone; or, if no wife and no unmarried children, (4) persons related by consanguinity or affinity, living with the member in the same household; or, if none of these, (5) any person related by consanguinity or affinity upon whom the member is dependent; or (6) any person related by consanguinity or affinity, dependent on and supported by the member; or; if none of these, (7) married children, irrespective of dependency; or, if none of these, (8) father, mother, brothers, and sisters, irrespective of active household connection, and irrespective of the question of dependence; and in some instances an even further -extension may be made, if necessary, in order to find a beneficiary. The existence of the benefit connotes a contemplated beneficiary, and the law will find one if possible.