The opinion of the court was delivered by: FORMAN
The pleadings disclose that M. Burton Deady was issued a policy of insurance with the Locomotive Engineers Mutual Life and Accident Insurance Association, a fraternal benefit society, in the amount of $1,500 on October 1, 1933. Under the constitution and by-laws of the benefit society and the laws of the state of its incorporation, the wife and children, dependents and relatives to a limited degree could be designated as beneficiaries. The constitution and by-laws further provide: "* * * In the event of the death or disqualification, prior to the death of the insured, of all of the beneficiaries named in the policy, the proceeds of the policy shall be paid in equal parts to the surviving wife and children of the insured * * *."
The policy was originally payable to Ethel Geraldine Gaynor, described as a dependent. This beneficiary was replaced by Emma M. Downs on November 1, 1934 who was described as a cousin. The latter name was displaced on June 2, 1935 by that of Clara Belle Deady, who was described as the wife of the insured.
Conflicting claims to the fund were made by Clara Belle Deady and Bessie A. Deady and her four children by M. Burton Deady -- Marion D. Andrews, Betty D. Midinian, Eileen D. Caracristi and Virginia H. Deady.
The controversy emanates from conflicting decrees of the States of New Jersey and New York with regard to the marital status of the insured.
It appears that M. Burton Deady and Bessie A. Deady were married in New York on March 2, 1904. On May 19, 1930 the insured obtained an ex parte divorce from Bessie A. Deady in the Court of Chancery of New Jersey upon grounds of desertion. Only the decree of divorce was exhibited herein.
In 1932 Bessie A. Deady brought an action against her husban, M. Burton Deady, in the Supreme Court of New York State, Westchester County, for a separation. In her complaint she alleged the ex parte divorce obtained in New Jersey was null and void for the reason, among other things, that her husband was a resident of New York State, that he had not resided in New Jersey two years prior to the institution of the action as required by the statutes of New Jersey, that she had been served in New York with a notice of the action in New Jersey by means of publication but that she did not appear or submit herself to the jurisdiction of the New Jersey court.
M. Burton Deady was served with a summons and complaint in the action for separation; he appeared therein, served an answer, and a trial was duly had, which resulted in a judgment in favor of Bessie A. Deady, declaring the ex parte New Jersey divorce null and void, setting it aside, granting Bessie A. Deady a separation from M. Burton Deady, awarding custody of the minor children to her, and giving her alimony with which to support herself and the infant children.
The court therein made the following pertinent findings of fact:
"10. That prior to the commencement of this action the defendant fraudulently and falsely claimed that he was a resident of the State of New Jersey and asserted that the plaintiff in this action was a non-resident of that state, and commenced an action in New Jersey against the plaintiff for divorce on the ground of desertion.
"11. That on or about the 23rd day of August, 1929, the plaintiff received in the mail a registered letter containing a paper which among other things required her to appear and plead, answer or demur to the petitioner's petition for a divorce in New Jersey on or before the 17th day of October next, or in default thereof such decree would be taken against her as the Chancellor shall deem equitable and just.
"12. The plaintiff was not served with a summons and petition in said action brought by the defendant within the jurisdiction of the State of New Jersey, nor did she voluntarily appear therein or submit herself to the jurisdiction of said court.
"13. That prior to the mailing of said notice and subsequent thereto the plaintiff and defendant were both residents of the State of New York and the defendant was at no time a resident of the State of New Jersey, and that any action and/or proceeding brought by him in the Court of Chancery in the State of New Jersey was and is a fraud upon the courts of that State and the courts of this State and the plaintiff herein, and any ...