Dean v. Dean

162 Wis. 303 | Wis. | 1916

Winslow, O. J.

The contract was an Illinois contract and controlled by Illinois law. Testimony was received against objection showing what the law of Illinois was regarding the effect of a change in the by-laws upon such contracts, although the Illinois law had not been pleaded. Strictly speaking, foreign law should doubtless be pleaded before evidence thereof is admissible. White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148; Elmergreen v. Weimer, 138 Wis. 112, 119 N. W. 836. The question is of no moment here, however. The law of Illinois is substantially the ■same as the law of Wisconsin so far as the issues involved in this case are concerned.

There are manifestly two questions in the case: (1) Was the attempted revocation and designation of a new beneficiary valid ? and (2) Does the new by-law passed in 1912 affect the rights of the parties ?

1. It is settled by a long and consistent line of decisions in-this state that a member of a fraternal order who wishes to ■change the beneficiary named in his certificate must do so in the manner prescribed by his certificate and the laws of the association with three exceptions,"none of which are applicable here. The subject is so fully discussed in the case of McGowan v. Supreme Court I. O. F. 104 Wis. 173, 80 N. W. 603, and the later case of Faubel v. Eckhart, 151 Wis. 155, 138 N. W. 615, that it seems unnecessary to enlarge upon it here. See, also, Bacon, Ben. Soc. §§ 307, 308; Delaney v. Delaney, 175 Ill. 187, 198, 51 N. E. 961.

Admittedly there was no compliance with the laws of the association here, nor was a substantial compliance even attempted, hence there was no change of beneficiaries, unless compliance with the requirements of the laws was waived. That there was no waiver is clear. Sec. 84 of the laws provides that no person is authorized to waive any requirements of the laws except the supreme master by written dispensation. But there would be no waiver even in the absence of •this provision. The duties of the officers of the local lodge with regard to the change of beneficiaries are simply ministerial: the change must be made and the new certificate issued by the officers of the supreme lodge alone. To hold that officers who cannot by the most solemn writing make a valid change can do so by mere silence would be little short of absurd. Grand Lodge A. O. U. W. v. Connolly, 58 N. J. Eq. 180, 43 Atl. 286.

2. It is settled in this state that where the benefit certificate provides that the insured shall be bound by by-laws thereafter adopted he will be so bound provided the change made-is simply a change in a matter of detail deemed necessary or advisable to carry out the fundamental principle or plan of insurance, and not a change in a substantial part of the plan itself or a nullification of any substantial part of the existing contract of insurance. Curtis v. Modern Woodmen, 159 Wis. 303, 150 N. W. 417, and cases cited. The Illinois decisions go even further and hold that the power of appointment of a beneficiary may be divested by subsequent changes in the laws of the order if the certificate provides that the rights of the insured shall be subject to such future changes. Baldwin v. Begley, 185 Ill. 180, 56 N. E. 1065; Peterson v. Gibson, 191 Ill. 365, 61 N. E. 127.

In the present case the benefit certificate was conditioned, in effect, that the member should abide by the laws of the order then or thereafter in force. The new law of 1912 did not take away a single contract right possessed by the insured. He could control the policy and change the beneficiary with the same freedom as before. The only change in the situation was that certain persons were made beneficiaries in case no new beneficiary was named when the original beneficiary predeceased the insured. This took away no right from the member, but simply prevented a lapse in case of his-neglect.

By the Court. — Judgment reversed, and action remanded' with directions to render judgment for the plaintiffs in accordance with the opinion.