Orphan Asylum v. Soule.

children, and in so doing affirmed the judgment of the circuit court and remanded the case to that court for such further orders from time to time, touching the custody and support of the children, as that court should deem just and proper.

We are entirely in accord with the eloquent tribute to the home as a place for rearing children, announced by Mr. Justice Brewer, found in Bullen, In rc, 28 Kan. 557. The only question however, that is in this court is one as to the jurisdiction of the juvenile court under the circumstances disclosed in the record. The court of common pleas found that the order made in that court in the divorce case was unreversed and not modified and still in force, and that for this reason the juvenile court had no jurisdiction over the child as a dependent child. With that judgment we are in accord and the same will, therefore, be affirmed.

Chittenden, J., concurs.

Kinkade, J.

I concur in the judgment of affirmance but I think it might well be placed on an additional ground than that mentioned in the opinion of Judge Richards, to wit, that it is manifest in the record that the child in question is no longer a dependent child, if she was such at the time of the entry of the judgment of the juvenile court.

Cuyahoga County Circuit.

ACTIONS-INSURANCE.

[Cuyahoga (8th) Circuit Court, May 20, 1907.]

Marvin, Winch and Henry, JJ.

LENA STRAUCH V. SIMON STRAUCH ET AL.

Action for Cancellation of a Substituted Benefit Certificate Prematurely Brought before Death of Insured.

Where a husband and wife, who had entered into an antenuptial contract in which he assigned all his property to her, later separated and he took out a second certificate in a mutual benefit association, which, by the by-laws of the association changed the beneficiary, in an action by the wife who was the first beneficiary against the husband, the association and the new beneficiary to compel the cancellation of the new certificate and the recognition of the plaintiff as beneficiary, is prematurely brought.

J. C. Block and Daniel B. Stone, for plaintiff.

C. W. Fuller and Laubscher & Kees, for defendants.

HENRY, J.

The defendant, Simon Strauch, is the husband of the plaintiff, and father of the defendant, Carrie Strauch, and a member and certificate holder in the Supreme Council of the Royal Arcanum.

Simon Strauch and his wife were married August 20, 1893; prior to that time they entered into an antenuptial contract in writing, whereby he assigned all of his property to her. His business and health failing, he became unable to support his wife, and they have lived apart since April, 1900; he now lives with one of his daughters by a former marriage, Carrie Strauch.

The antenuptial contract makes no specific mention of his death benefit certificate in the Royal Arcanum, but that certificate and a policy of insurance in another company were made payable to Mrs. Strauch in September, 1897. Upon their separation the wife kept the custody of their two children, and by agreement with her husband, kept up the assessments on

Strauch v. Strauch.

said certificate, payable, as aforesaid, to her. Some time afterwards, while living with his daughter by the first marriage, Simon Strauch wrote his wife, requesting her to send him said certificate. This request she did not comply with; whereupon, pursuant to the regulations of the Royal Arcanum in such case provided, he caused a new certificate to be issued to him in place of the former one, with his daughter Carrie as the designated beneficiary. Prior to that time the wife had paid the assessments; since then, the daughter has paid them. They have increased from about $4 a month during the prior period to about $16 per month at the present time.

Mrs. Strauch now brings her action for a cancellation of the substituted certificate and for the recognition of herself as the true beneficiary.

The regulations of the order permit members to change beneficiaries at pleasure, negative the existence of any vested right in a beneficiary, and provide that assignments of death benefit certificates shall be void. The Royal Arcanum is incorporated under the laws of Massachusetts, whose statutes and decisions have recognized and enforced these provisions. The Royal Arcanum is here resisting the granting of the relief prayed for by plaintiff. It insists that the alleged agreement between Mr. and Mrs. Strauch is void and creates no vested right in the latter.

In Tisch v. Home Circle, 72 Ohio St. 233 [74 N. E. Rep. 188], Davis, C. J., delivering the opinion of the court says at page 260:

"But prior to the death of the insured what enforceable rights can accrue to the beneficiary? That is the question which is presented in this case. The insured may acquire rights in his or her lifetime which may be protected by law, but before the death of the insured the contract is, in general, executory as to the rights of the beneficiary. It may be rescinded by the parties or it may be defeated by failure of the insured to perform."

Without assuming to say that Simon Strauch and his wife. might not enter into a contract valid as between themselves,

Cuyahoga County Circuit.

whereby he divests himself of the right to change the beneficiary in his certificate, we think this action is prematurely brought. The wife and daughter are contesting about a mere expectancy. There is no fund in existence, for the death benefit, if and when it shall become payable, will be derived from assessments upon the members of the order who shall then be in good standing. It is as if two purchasers of a future catch of fish should litigate the question of their respective rights therein before the fish are caught.

The plaintiff's petition is therefore dismissed without prejudice to a future action after the death of Simon Strauch. Marvin and Winch, JJ., concur.

WILLS.

[Licking (5th) Court of Appeals, 1913.]

Powell and Shields, JJ.

(Judge Voorhees not sitting.)

LAURA ROBRAHAM ET AL. V. ALLEN B. GREGG ET AL.

Limitation Upon a Devise Held Void.

ror.

Where land is devised generally by G. to H., without qualification or condition except the proviso that, in the event H. does not sell said land during his lifetime or make disposition thereof in his last will, the said land shall go to and become the property of persons named, the devise over is void, and in an action to set aside the will of H., it is not error to sustain an objection to testimony of the said secondary devisees on the ground that they are not persons having an interest in the will of H.

[Syllabus by the court.]

ERROR.

Carl Norpell and Kile & Kirkpatrick, for plaintiffs in er

Fitzgibbon & Montgomery, for defendants in error.

POWELL, J.

The plaintiff's in error, Laura Robraham, Sloan Campbell, Margery Johnston, Erma Crawford, Margaret A. Hill and Lois

Robraham v. Gregg.

B. Ingalls file a petition in error in this court, by which they seek to reverse the judgment of the court of common pleas, in an action brought in that court to set aside the will of one Ensley Finney Haas, deceased.

These plaintiffs in error were, by leave of the court, made parties defendant to a proceeding brought by the heirs at law of the said Ensley Finney Haas, deceased, to set aside what purported to be his last will and testament, which had been admitted to probate and record in the probate court of Licking county before that time.

By the will of Martha Goff, who was a sister of the said decedent, Ensley Finney Haas, he became the owner of the east half of a tract of land consisting of 135 acres, more or less, in Licking county, and which was described in the will of said Martha Goff, deceased. The plaintiffs in error claim to be the owners of this tract of land, which was devised by the said Martha Goff to Ensley Finney Haas, by virtue of the provisions of her will, in the event that the said Ensley Finney Haas did not sell, or otherwise dispose of said real estate during his lifetime, or by his last will and testament.

By item 2 of the will of said Martha Goff, an estate in fee simple was devised to the said Ensley Finney Haas. It was further provided in said item 2 of said will "that in the event that said Ensley Finney Haas does not sell or otherwise dispose of said east half during his life, or by his last will and testament, said east half of suid property"-the said 135 acres― "shall go to and be the property absolutely of Margaret A. Hill, Margery Johnston, Eliza Dunlap, Addie Dunlap, Lois B. Ingalls, Laura Robraham, Sloan Campbell, Erma Crawford and Harriett Hughes; that is, that said property shall be owned by said named persons, or those of the same who are living at the time of my said brother's death.'

The plaintiffs in error claim that, because of incapacity and undue influence, the paper-writing, which was admitted to probate and record as the last will and testament of the said Ensley Finney Haas, was not his will; and on the trial of said cause in the court of common pleas they endeavored to show,