Rudell v. Board of Administration of State Employees' Retirement System

LANGDON, J.

A hearing was granted in this case after decision by the District Court of Appeal, First District, Division Two. Upon further consideration we adopt the following opinion of Mr. Justice Spence as part of the opinion of this court:

“ In a proceeding in

ma/ndamus,

the trial court directed that the sum of $958.40, which became due as a death benefit under the State Employees’ Betirement System upon the death of Bichard H. Teberg, deceased, be paid to petitioner Bertha Bose Budell, also known as Bertha Bose Teberg. This appeal is taken solely by petitioner Lillian Nash, as the administratrix of the estate of Bichard H. Teberg, deceased.

“On November 19, 1931, said Bichard H. Teberg was an employee of the state and so remained until the time of his death. On that date, he executed a certificate naming ‘Bertha Bose Teberg . . . who is my wife as the beneficiary’ of any benefits to become due upon death as a member of the State Employees’ Betirement System. At the time of executing said certificate the deceased and petitioner Bertha Bose Budell, also known as Bertha Bose Teberg, were engaged to be married and were living together as husband and wife. No marriage was ever consummated, but the relationship continued until the death of the deceased in 1934. Said petitioner was known as the wife of the deceased and had assumed the name of Bertha Bose Teberg. Both parties were unmarried persons during the entire time that their relationship continued.

‘ ‘ Appellant states several questions in the briefs, but confines the argument solely to the contention that respondent Bertha.Bose Budell, also known as Bertha Bose Teberg was not entitled to said benefits because of the relationship existing between said respondent and the deceased. We find no

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merit in this contention. Said respondent was the named beneficiary and she was entitled to the money if she had an ‘insurable interest’ in the life of the deceased. (Sec. 100, State Employees’ Retirement Act, Stats. 1933, chap. 473.) There is a conflict of authority in other jurisdictions as to what constitutes an ‘insurable interest’ in the life of another person, but in this state, that term is defined by statute. Said respondent had an ‘insurable interest’ in the life of the deceased if she depended upon him in whole or in part for her support. (Subd. 2, sec. 10110, Insurance Code, formerly subd. 2, see. 2763, Civ. Code.) The evidence on this subject stands uncontradicted. There is no requirement in the statute that the dependency should result from a legal obligation to support and we are of the opinion that the ‘insurable interest’ mentioned in said subdivision 2 rests solely upon the fact of dependency. This view finds support in the reading of the entire section. Subdivision 3 of that section specifically requires that a ‘legal obligation’ must exist but there is no similar wording found in subdivision 2 which is under consideration here.