dissenting:
I do not agree with the majority opinion for the following reasons:
The statute under which the Royal League was organized authorized fraternal associations, such as this association was, to issue certificates for the benefit of the family or those dependent upon the member, and section 2 of by-law 3 of the Royal League provided as follows: “Each member shall enter upon his application the name or names of the members of his family, relatives or those dependent' upon him to whom he desires his benefit paid, subject to such future disposal of the benefit among them as the member may hereafter direct in accordance with the constitution and laws of the order, and the same shall be entered in the benefit certificate according to said direction.” The association has no authority to collect a fund from its members for the benefit of persons other than the classes enumerated by the statute, and any direction of a member tO' pay the benefit due him to an ineligible person is void, even though the certificate is specifically, by its terms, _ payable to such person. (Alexander v. Parker, 144 Ill. 355.) The act of a member in naming a person outside of the specified classes, or the act of the association in issuing a certificate so payable to such person, cannot defeat the right of the beneficiaries designated by the law in their claim to the fund. (Palmer v. Welch, 132 Ill. 141; American Legion of Honor v. Perry, 140 Mass. 580.) The Appellate Court correctly states the question to be determined in this case as follows: “We think the crucial, decisive question for our determination is, was Frieda Wassmann, within the meaning of the law of this State and of the Royal League, dependent upon Michael Shields? If she was, the decree must be sustained; if she was not, the decree must be reversed and the money deposited by the Royal League be ordered paid to appellant.” As already stated, the Appellate Court answered this question in the negative and held that Agnes J. Carden was entitled to^ all of said fund. This being a chancery proceeding, the facts are open to consideration by this court and we are not bound by the finding of the Appellate Court.
Webster’s Dictionary defines the word “dependent” to mean, “one who depends; one who is sustained by another, or who relies on another for support or favor.’-’ Whether a particular person is or is not a dependent, within the meaning of the statute and the by-laws of a benevolent association, is a question of fact. (Alexander v. Parker, supra.) Adjudicated cases on this subject are not very numerous and the few that I have been able to examine are not very helpful, since there are in each case facts and circumstances that are not in the record in the case at bar. Bacon, in his work on Benefit Societies and Life Insurance, (vol. 1, sec. 261,) devotes the entire section to a review of the decided cases and a discussion of “dependents,” as that word is used in connection with contracts of benevolent associations. It is decided in Grand Lodge A.O.U.W. v. Gandy, 63 N. J. Eq. 692, (53 Atl. Rep. 142,) that a servant is not a dependent. There are a number of cases which hold that a woman is a dependent who in good faith lives with a member in the belief that she is his wife although there is no legal marriage. (Supreme Lodge A.O.U.W. v. Hutchinson, 6 Ind. App. 399; 33 N. E. Rep. 816; Supreme Tent v. McAllister, 132 Mich. 69; 92 N. W. Rep. 770; Senge v. Senge, 106 Ill. App. 140; James v. Supreme Council R. A. 130 Fed. Rep. 1014.) In the Michigan case above cited it is held that where two persons are married and live together as husband and wife until the death of the husband under a mistaken supposition that the wife was divorced from her fonner husband, she being designated as his wife and beneficiary in his certificate, she is entitled to the benefits accruing under such certificate, notwithstanding the by-laws provide that no certificate shall be made payable to one not a wife, husband, child or dependent of the member. The beneficiary was held to be entitled to the benefit as a dependent. In Keener v. Grand Lodge, 36 Mo. App. 543, the court uses this language: “I would not restrict dependency to those whom one may be legally bound to support nor yet to those to whom he may be morally bound, but the term should be restricted to those whom it is lawful -for him to support.” In Ballou v. Gile, 50 Wis. 614, the Supreme Court defined “dependent” as follows: “We think the true meaning of the word ‘dependent,’ in this connection, means some person or persons dependent for support in some way upon the deceased,” and this definition has been quoted and approved by the Supreme Court of Massachusetts in American Legion of Honor v. Perry, supra. And in Palmer v. Welch, supra, it was held that an affianced wife is generally not a dependent, yet she, in fact, may be a dependent, and it was so held in McCarthy v. New England Order of Protection, 153 Mass. 314. Bacon concludes his review of the cases as follows: “From the definition and cases cited it seems that whether or not a person is included among the dependents of a member of a benefit society is a question of fact and that each case must be decided upon its own merits. In accordance with the liberal view of the Supreme Court of Michigan in defining who are included in the term ‘family,’ we should say'that if any person, relative of the member or not, was supported by him, directly or indirectly, or wholly or in part, at his home or abroad, because of a legal or moral obligation or merely from affection, such person might be called a dependent and be designated as the beneficiary of such member. But in all cases it would appear essential to apply the test of good faith, for mere capricious liking or temporary liberality in the way of gifts would not malee the recipient a dependent.” In Alexander v. Parker, supra, this court defined a dependent as follows: “Dependence for favor, or for affection, or for companionship, or as servants or retainers, is excluded. A dependent, as the term is used in reference to these benevolent associations, is one who is sustained by another or relies for support upon the aid of another.”
It is not sufficient to make one a dependent that the member may occasionally make presents of articles of clothing, jewelry, or money, but there must be some undertalcing on the part of the member to make substantial and continuous contributions toward the support of the beneficiary, so that it can be fairly said that the beneficiary depended wholly or in part upon such contributions for support and maintenance. This definition seems to be well expressed by the Supreme Court of Massachusetts in McCarthy v. New England Order of Protection, supra, where it is said: “Trivial or casual, or perhaps wholly charitable, assistance would not create a relation of dependency within the meaning of the statute or by-laws. Something more is undoubtedly required. The beneficiary must be dependent upon the member in a material degree for support or maintenance or assistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral or legal or equitable grounds, and not upon the purely voluntary or charitable impulses or dispositions of the member.” The McCarthy case is approved on this point by this court in Alexander v. Parker, supra.
The intimation of the Massachusetts court that the obligation of the member to furnish such support should rest upon some “moral, legal or equitable ground” seems to have been understood by the Appellate Court in this case as excluding cases like the present, where the member voluntarily assumed the relation of benefactor to- a worthy needy person. This, I think, is an erroneous view and gives the word “dependent” a construction which is entirely too restricted. In the case at bar the evidence is uncontradicted that Mr. Shields contributed on an average of $50 per month to the support and maintenance of Frieda Wassmann and her mother. There is not an intimation in this entire record that there was any improper relation between these parties or that Mr. Shields was not actuated by the purest and best of motives. At his suggestion Frieda Wassmann gave up her regular employment and devoted her time to nursing and caring for her invalid mother. Mr. Shields told ‘her that if she would take that course he would provide for her as an adopted daughter. She relied upon his promise, which he faithfully kept as long as he lived. While there was no blood relation between Mr. Shields and Frieda Wassmann, she was as much dependent on him as she would have been if she had been his niece or other distant relative. If the parties had been related, but not in that degree which imposes the legal duty of support, under the facts in this record no one could question that Frieda Wassmann was a dependent. I see no reason, either in law or good morals, why appellant’s case does not "rest upon the same footing. The deceased member in the case before us was childless and wealthy. He found in appellant a person whom he regarded as worthy of his benefaction. He voluntarily assumed the burden of contributing to her support in a regular and substantial manner and did so regularly for nine years before his death. In my opinion these facts bring appellant within the definition of a dependent, and as such made her eligible as a beneficiary under the statute and the by-laws of the Royal League and entitled her to the money paid into court by the association.
Cartwright and Farmer, JJ., also dissenting.