Armstrong v. Blanchard

150 Wis. 31 | Wis. | 1912

SiebecKeb, J.

The certificate, which is the contract of insurance, limits the amount due on it at the death of the member of the insurance order to $3,000, and specifies that it is issued subject to the fundamental laws of the order and is liable to forfeiture if the certificate holder does not comply with its conditions, the laws, by-laws, and such rules as are or may be adopted by the order. The assured has complied with all ■the conditions and the order is liable for the sum of $3,000 to whomsoever may be entitled thereto. This the representatives of the order acknowledged. They appeared in court confessing liability on the certificate and were given the opportunity to pay this amount into court and be released from further appearance in the case, the rights of the claimants thereto being submitted to the court, the sum to be paid to such persons as the court might adjudge.

As shown in the foregoing statement, the certificate holder had designated his mother by adoption as beneficiary when the certificate issued. She predeceased him in 1901, and no other beneficiary was named by him. In November, 1910, be made bis will containing tbe provisions above set forth, giving and bequeathing to bis two nieces and bis cousin, each tbe sum of $1,000, “the said sum of three thousand dollars ($3,000) constituting tbe life insurance policy of $3,000 in tbe Modern Woodmen of America.” It is clear that tbe testator intended that these legatees should recéive tbe proceeds of this certificate. Decedent’s brothers and sister, tbe appealing defendants, allege and claim that decedent’s attempt to dispose of these proceeds of tbe certificate by will is ineffectual, and that they are lawfully entitled thereto under tbe contract of insurance and tbe fundamental laws of tbe order. Tbe fundamental laws of tbe order are effectual parts of tbe decedent’s contract and are binding upon him as a certificate bolder. Sec. 45 of the by-laws (stated above) provided who might be named as beneficiaries, and that:

“No payment shall be made upon any benefit certificate to any person who does not bear such relationship as wife, surviving child, heir, blood relative, or person dependent upon or member of tbe family of tbe member at tbe time of bis death.”

Tbe by-laws make provision for a change of beneficiary by tbe insured in bis lifetime, and provide that in such change of beneficiary tbe new beneficiary so named shall be within tbe description of those named in sec. 45, and that no change of beneficiary shall become effectual unless made in compliance with this rule. Sec. 46 of tbe by-laws prescribes that tbe amount due on tbe certificate, in case no beneficiary is named or if those named predecease tbe certificate bolder, shall be payable to tbe immediate relatives and heirs in tbe order named, and that in default of any such relatives and heirs surviving, “then to tbe next of kin, who would be tbe distributees óf tbe personal estate of tbe member upon bis death intestate according to tbe laws of tbe state wherein tbe said member resided at tbe time of bis death.” These provisions on these subjects contain nothing to indicate that the certificate holder is deprived of the right to dispose of the proceeds by will, which attaches to his contract under the law of this state. The right to so dispose of the proceeds of an insurance contract has been recognized in the decisions of this court when the insured has paid the premiums and kept control of the contract. It is clearly established in the following cases and the adjudications referred to therein: Berg v. Damkoehler, 112 Wis. 587, 88 N. W. 606; Rawson v. Milwaukee Mut. L. Ins. Co. 115 Wis. 641, 92 N. W. 378; Opitz v. Karel, 118 Wis. 527, 95 N. W. 948; Slocum v. Northwestern Nat. L. Ins. Co. 135 Wis. 288, 115 N. W. 796. In the case of Thomas v. Covert, 126 Wis. 593, 105 N. W. 922, the insured had agreed to forego the right to dispose of the proceeds of his certificate by will, and the stipulations on the subject, not being against law or public policy, were enforceable as part of the contract of insurance.

The fundamental laws of this order and the contract of insurance containing no provision precluding the deceased from disposing of the proceeds of the certificate by his will, it follows that the parties to whom he bequeathed them are entitled thereto. The right which attached to his contract under the laws of this state was properly exercised by him and controls the disposition of the proceeds of his certificate. The trial court awarded the appropriate judgment for the disposition of the funds deposited with the clerk of the court.

By the- Gourt. — Judgment affirmed.