Toussant v. National Life & Accident Ins.

On Rehearing.

PROVOSTY, J.

[3] Plaintiff sues on a policy of insurance taken out by her husband on his life in her favor. The defense is that the beneficiary was changed, under authority of the following clause in the policy:

“Provided, the beneficiary hereunder may be changed by the insured by consent of the company ”

—and that full settlement has been made with the substituted beneficiary.

Under such a clause the beneficiary may be *983changed without consulting the beneficiary named in the policy. Alba v. Provident Savings L. Ass’n Co., 118 La. 1029, 43 South. 663.

[4] But, argues plaintiff, the change in the present case was in favor of the secret concubine of her husband, and was therefore “mala prohibita or mala in se” — citing C. C. 1481, and N. Y. L. Ins. Co. v. Neal, 114 La. 652, 38 South. 485.

Article 1481 reads:

“Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donations of immovables; and if they make a donation of movables, it cannot exceed one-tenth part of the whole value of their estate.”

This article, by its express terms, has application only to open, not to secret, concubinage; and in this case the concubinage was secret. So alleged by plaintiff. The Jahraus Case, 114 La. 458, 38 South. 417, which interpreted this article as here stated, was not overruled by the Succession of Filhiol, 119 La. 998, 44 South. 843, invoked by plaintiff, but, on the contrary, was cited with approval. See 119 La. p. 1005, 44 South. 843. In fact, the question in this Eilhiol Case was not as to whether under said article 1481 the concubinage has to be open or secret; but it was as to whether it had been in that particular case open or secret. Moreover, two of the. justices dissented, and one concurred in the decree only.

In the Neal Case, relied on by plaintiff, the concubinage was open, and the proceeds of the policy were deemed a part of the estate of the decedent, a point needless be considered in the instant case.

The judgment of the Court of Appeal and that of the trial court are set aside, and the plaintiff’s suit is dismissed at her cost in all the courts.