133 Mo. App. 594 | Mo. Ct. App. | 1908
This is a case of interplea. The admitted facts are that: On the 4th day of June, 1896, the Modern Woodmen of America issued to Alexander Abies a benefit certificate providing for the pay
The plaintiff seeks to recover on the ground, that, at the time of her marriage with Abies, it was agreed by him that, in consideration thereof, she was to become the beneficiary in the certificate upon the agreement on her part that she was to keep all dues and assessments against the same paid and thereby keep it in force; and that she performed on her part all the obligations of,said agreement. That Abies, intending, according to his agreement, to have the certificate changed so as to make her the beneficiary, applied to the society for that purpose, but, as he did not have the certificate with him, the clerk of the society refused to make the change; and that thereafter the matter was neglected and the change was not made.
The plaintiff was introduced as a witness and was allowed, in the first place, over the objections of defendant, to state in detail the matters we have recited as the facts upon which she relied to recover. The court, however, reserved the right to pass upon her competency as a witness. Her evidence was finally rejected on the ground that she was incompetent to testify as to what took place between herself and Abies, the other party to the contract, he being dead, and as to what he said to her after the marriage.
The plaintiff challenges the correctness of the ruling on the ground that the question of her competency
It is a general rule that a question arising on a former appeal will be deemed res adjudicata only when it must have been fairly presented to the court as necessary to a decision of the case and directly considered and decided. [Gwin v. Waggoner, 116 Mo. 143.]
It was made to appear that before the marriage plaintiff kept a boarding house in Kansas City; that Abies boarded with her; that, during which time, she Avent on a visit to her sister at Denver, to which place Abies folloAved her, Avhere the marriage took place in a short time after his arrival; and that, afterwards, she and her husband returned to Kansas City where she continued to keep boarders.
Plaintiff introduced the evidence of competent witnesses, which tended to prove the marriage agreement’ as hereinbefore stated. That Abies delivered to her the certificate and told her that it was hers; that she paid the assessments and kept the certificate in force; that Abies on one occasion applied to have a new certificate made out designating her as the beneficiary, but that the clerk of the Gamp refused to issue such neAV certificate because he had failed to produce and surrender the old one; and that the association knew that plaintiff, was
We think it should be conceded that there was sufficient evidence to show that plaintiff was to have the benefit of the insurance as a consideration for her marriage to Abies and that on her part she would make payment of all dues and other charges to keep the benefit certificate in force; and that she performed her part of the contract, but that Abies failed and neglected to have her name substituted in a new certificate as the beneficiary. It has been held that a member of a benevolent association has the power to designate his beneficiary by will, in the absence of any formalities for a change of beneficiary. [Masonic Ben. Ass’n v. Bunch, 109 Mo. 560.] The defendant draws the inference from the language of the opinion that, when such formalities are required by the laws of the association, a change of beneficiary could not be made by will, but the change must be made in the form prescribed. And it is held that, “The adoption of a particular method of changing a benefit certificate under the powers and within the limits of the charter of a benevolent benefit society, is the exclusion of all other methods.” [Coleman v. Knights of Honor, 18 Mo. App. 190.] And so it is held in Head v. Council of Catholic Knights, 64 Mo. App. 212; Grand Lodge v. Ross, 89 Mo. App. 621.
While such is the general rule, it is held that there are exceptions. For instance, anterior to the death of a member, the society, for whose benefit only the rules governing changes of beneficiaries are made, may waive compliance with such rules on the part of its members,
It becomes us to follow the rule as announced in Grand Lodge v. McFadden, supra, as the latest expression of the Supreme Court, which in effect requires that for a change of beneficiaries the rules of the order must be substantially complied with. Tested by this rule, it cannot be said that Abies, in delivering the certificate to plaintiff and afterwards going to the clerk of the order and asking that plaintiff be substituted as the
The plaintiff relies greatly upon the case as made out, that by the terms of the marriage contract, with which she has fully complied, she was to be the beneficiary and to pay the dues and keep the certificate in force. Ordinarily, under such a state of facts, equity would be on her side and afford her redress. But it must be remembered that beneficiary certificates are not properties in the usual sense of the term. It is conceded on all sides that beneficiaries have no vested interest in such certificates until the death of the member. And further, that the members- themselves have no property rights whatever in the indemnity, but only the naked power to designate the beneficiary. [1 Bacon, Benefit Societies and Insurance, p. 526, section 237.]
The cause is affirmed.