Opinion of the Court. tion with Lardner, before alluded to, and the letter from the Equitable Trust Company. It was by that authority, and no other, that I leased the said farm to the said defendant." It is claimed that the plaintiff has ratified the last leasing by Presley to the defendant, by receiving the rent from the defendant. We think the evidence does not show anything said or done in this regard by plaintiff. The only evidence in this respect is that of Presley and the defendant. Presley testified: "After I had extended the lease of Hungate to March 1, 1884, I was directed by the Equitable Trust Company to turn over my agency to Clutter, of Effingham, Illinois, which I did. After meeting Clutter and Mr. Kepley I turned over the notes of Hungate to Clutter, which were given in consideration of the extended lease, and Hungate has paid the notes due, to Clutter. I am not sure but one note has been paid to Mr. Kepley, through the First National Bank of Flora." Mr. Kepley is the attorney for plaintiff in this action. The defendant testified that during the last summer and fall both Kepley and Clutter tried to scare him out, and get him to give up the farm or lease from them; that he paid the rent to Presley until he turned over his agency to Clutter, and that he paid the balance of the rent to Clutter, except the last note, which was sent to the bank in Flora, when he paid it, but that he did not know to whom the bank paid it. This is not sufficient to show that Clutter took the defendant's notes as agent for the plaintiff. The evidence rather tends to show that Clutter received the notes as agent for the Equitable Trust Company, which directed Presley to turn over his agency to him. There is nothing in the proofs which overcomes plaintiff's case as made. It may be remarked that the special pleas were wholly improper, as every matter of defence contained in them was properly admissible in evidence under the general issue. The judgment is reversed, and the cause remanded. Judgment reversed. Syllabus. THE COVENANT MUTUAL BENEFIT ASSOCIATION 2. LAURA HOFFMAN et al. Filed at Mt. Vernon September 27, 1884. 1. LIFE INSURANCE-certificate construed, as to beneficiaries. A certificate of membership in a benevolent association, in the nature of a policy of life insurance, provided, if certain conditions were observed and performed, for the payment of the sum of $5000 on the death of the holder, "to be paid as a benefit to his wife, L. H., and children, equally." The holder, at his death, left his wife and five children, one of whom died after suit brought upon the policy in the name of all, leaving his mother and four brothers and sisters as his only heirs, and the cause proceeded to judgment in the names of the widow and remaining children, who recovered judgment for the full $5000: Held, that the widow and remaining four children were entitled to the same sum as though she and all the children were suing, and that the judgment was not for too much. 2. Where a certificate in the nature of a life policy of insurance is made payable to the wife of the holder, by name, and his children, equally, upon evidence of his death, "or in the event of their prior death, to the legal heirs or devisees of the holder," the word "children" will designate a class of persons, and those living at the time of the trial of an action on the certificate, together with the wife, will be entitled to recover the whole amount; and a correct construction of the latter clause is, in case of the prior death of any one of the class designated to take the benefit, the heirs of the holder or the assured, who, in this case, were the surviving brothers and sisters and the mother, shall take the share of the deceased party. 3. EVIDENCE-proof of death of the assured, as evidence of what disease he died. A benefit certificate issued to a member of an association had a number of conditions annexed from which the benefit was non-payable,such as, if the member's death was by reason of self-destruction, or other acts named. The proofs of his death stated that he died from pneumonia. On the trial of an action brought by the beneficiaries, this proof was introduced in evidence, and the defendant asked the court to instruct the jury that the proofs of death offered were not evidence of what disease the member may have died, which the court refused to do: Held, that the proofs of death were proper evidence, although containing proof of the disease of which he died, and that it was not error to refuse the instruction in the form asked; and that had the court been asked to instruct the jury that the proofs of death were no evidence on the question whether the deceased had disease of the lungs or other diseases at the time he made the application, it would no doubt have so instructed. 110 603 110 603 191 2508 110 603 110a $660 Brief for the Appellant. APPEAL from the Appellate Court for the Fourth District; -heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos WATTS, Judge, presiding. Messrs. MCKENZIE & CALKINS, for the appellant: There was a non-joinder of parties plaintiff, as shown both by the pleadings and proof. On the trial, proof being made that Peter Hoffman, one of the five children, had died since the suit was brought, the plaintiffs amended their declaration by striking out the name of Peter Hoffman. The five remaining plaintiffs had no cause of action, the contract being entire and indivisible. In actions ex contractu, having too many or too few plaintiffs is fatal to a recovery. Snell v. Deland, 43 Ill. 335; Murphy v. Orr, 32 id. 489; 1 Chitty's Pleading, 20. The certificate sued on did not make the wife and children. partners. It provided that equal portions of $5000 should be paid to each. The benefits provided by a life insurance policy are in the nature of a testamentary devise, and in construing it as to the rights of the beneficiaries, the court should, as nearly as possible, treat it as a will. Continental Life Ins. Co. v. Palmer, 42 Conn. 60. If, in an obligation to pay a gross sum to several parties, there is no stipulation to pay any portion to each, then the survivors bring the action. (Davis v. Wannamaker, 2 Col. 637.) By necessary inference from the above, had there been a stipulation to pay a part or "equally" to each, the survivors could not alone have sued and recovered the whole. Peter Hoffman, in his application, warranted that since his former application (May 31, 1880,) he had not suffered from any serious or protracted illness, and that he was then free from all disorders, weaknesses or infirmities tending to impair health or shorten life. It made a serious difference whether he died of pneumonia of five days' duration, or of Brief for the Appellees. Opinion of the Court. consumption of a year's standing. Therefore it was error to refuse the ninth instruction asked by appellant. The proofs were legitimate evidence only for one purposeto show a compliance with the terms of the certificate. Messrs. HAY & KNISPEL, for the appellees: Where one or more of several obligees, covenantees, partners, or others having a joint, legal interest in the contract, dies, the action must be brought in the name of the survivor. 1 Chitty's Pleading, 19; Bostwick v. Williams, 40 Ill. 113. The widow and children of Peter Hoffman have a joint, legal interest in the policy or contract, and not a several interest. Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609; Northrup v. Phillips, 99 Ill. 449. The proofs of death were called for by the company, in the policy. They were to be satisfactory to the company. They were admitted in evidence without objection, and were necessary and proper for the purpose of showing that appellees had performed the conditions precedent. The issues and the evidence involved these two questions: Did Peter Hoffman make false and untrue statements and misrepresentations in his original application for insurance; and second, did he make false and untrue statements, and warrant the same to be true, in his application for reinstatement. Mr. JUSTICE SCOTT delivered the opinion of the Court: This suit was brought on a "certificate of membership" in the Covenant Mutual Benefit Association of Illinois. It was issued to Peter Hoffman, since deceased, in consideration of the sum of ten dollars (membership fee) paid in hand, and of the payment of such amount for mortuary assessments, expenses and collection costs as should be required of him, in accordance with the condition in the certificate expressed. Opinion of the Court. It was provided that upon due notice of the death of the holder of the certificate being filed with the secretary of the association, showing the member had in all respects complied with the conditions of the certificate, an assessment would be levied upon all the members holding certificates in force at the time of the death of such member, for the full amount named in their respective certificates; and the sum so collected on such assessments, less all amounts which might be added for expenses and collection costs, the association agreed by the certificate to pay, or cause to be paid, as a benefit, to his wife, Laura Hoffman, and children, equally, or in the event of their prior death, to the legal heirs or devisees of the holder of the certificate, within ninety days from the date of the acceptance of evidence of death; but in no case should the payment under the certificate exceed $5000. A number of conditions were printed on the back of the certificate, which the member was obligated to observe, and it was agreed they should constitute a part of the contract between the parties, as if they had been inserted in the body of the certificate itself. So far as any of these conditions are important in the present decision they will be stated further on, but not otherwise. Across the face of the certificate issued to the deceased was printed in large figures, "$5000," which would seem to indicate that was its value. At his death, Peter Hoffman, to whom the certificate was issued, left him surviving, his wife, Laura Hoffman, and five children, in whose names the suit was brought against the association to recover $5000,-the benefit secured to them by the certificate of membership issued to the deceased holder. After the suit was brought, and before trial, Peter Hoffman, Jr., one of the children, died. It appears this child, Peter, was born after the death of the husband, which occurred August 2, 1881, and that he died in May, 1882. His only heirs would be his mother and surviving brothers and sisters. After the death of the child Peter, the suit progressed in the name of the |