119 Mo. App. 210 | Mo. Ct. App. | 1906
The defendant issued to John P. Dennis, on December 3, 1900, what is known as a beneficiary certificate of life insurance in the sum of two thousand dollars. The beneficiaries named to receive that sum at his death, were his two daughters, Anna and Elsie. In July, 1901, Elsie died intestate. In March, 1904, Dennis, the father, committed suicide. Afterwards A. F. Keene Avas made administrator of Elsie’s estate and was also made guardian of Anna as Avell as curator of her estate. It was not charged that Dennis contemplated suicide when the certificate or policy was issued to him, nor were the premiums which he had paid deposited in court by defendant. The defendant’s ansAver denies all liability. The trial court found for plaintiff and rendered judgment accordingly.
I. The defendant is alleged to be a corporation organized under the laws of the State of IoAva, and doing business in this State, having complied Avith the provisions of our statute in reference to permission to prosecute its business here. One point for decision is
It is now understood as settled law that no one can become a beneficiary in a fraternal benefit society who does not belong to some one of the classes of persons named as beneficiaries in the statute. . [Masonic Ben. Assn. v. Bunch, 109 Mo. 560; Keener v. Grand Lodge, 38 Mo. App. 543; Herzberg v. Brotherhood, 110 Mo. App. 328.]
II. In cases where a society may depend for its power to do business on the statutes of two States, one where it is organized, and the other wherein it. is permitted to do business as a foreign corporation, the statute of the latter will control as to who can become beneficiaries in cases originating in the latter. -[Baltzell v. Modern Woodmen, 98 Mo. App. 153.]
ITT. The character of a fraternal beneficiary association as authorized in this State, is set forth in section 1408, Revised Statutes 1899, wherein beneficiaries are stated to be “families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon the member.” Foreign associations are authorized to do business in this State, who come “within the description as set forth in section 1408” aforesaid. It follows, that since no foreign association could do business here without the authority of this State, it must bring itself within the terms of such authority. That is to say, it must bring itself within the description of the local associations in this State; which means they must have for their object the benefit of the same
IY. But that case involved a class, recognized by the foreign statute, but not permitted by ours. While in this case, the beneficiaries (daughters of the member) are recognized by ours. So, though our decision in that case be conceded to be a correct interpretation of the law, the defendant, notwithstanding the case of Baltzell v. Modem Woodmen, contends that, though the foreign law authorizes the foreign association to issue certificates to classes of beneficiaries, some of which are not recognized by the domestic law, yet if such association only does business with the classes which are recognized by the domestic law, it is a fraternal benefit association under the latter law, as to such business.
The contention fails to distinguish between associations and the business which such associations may do. Our statute relieves the burden of taxation, disability to defend on account of suicide, etc., from certain described classes of associations and not certain classes of
It may be suggested that our conclusion is not in harmony with Loyd v. M. W. A., 118 Mo. App. 19. The foreign statute in that case was stated by Judge Bland to he identical with ours as to the classes of beneficiaries; and the beneficiary in that cash was the member's "wife. The judge, however, made use of the following expression: “But if other classes were designated in the Illinois act, in its Missouri business, the defendant being on the same footing as domestic fraternal societies, could not make any class of persons beneficiaries not named in the Missouri law.” It is claimed for that sentence that it impliedly countenances the statement that, where other classes are included in the law of the foreign State, it could yet name a beneficiary recognized by our statute and claim equal privileges* with our associations. Whatever may be said of this, it is clear that it was a mere passing remark of what the learned judge thought at the moment of a state of case not then under consideration.
We are cited to the case, decided by us, of Pauley v. Modern Woodmen, 113 Mo. App. 473, as sustaining defendant’s claim. The statute of the foreign state in that case was identical with ours except there was added to it a clause- permitting a member, who had neither wife nor children, to make a charitable institution a beneficiary, a thing not permitted by our statute. It was thought that as that additional provision was not an unconditional provision and could only become effective with the consent of the society; and that as it did not have the effect to evade the provisions of our
Y. It is next urged that though Elsie was one of the beneficiaries named in the certificate, yet she had no vested interest in it and that upon her death, there was nothing to descend to her heirs, nor anything to go to her legal representative, and therefore the administrator was not only not a proper party, but there was a failure of proof. A beneficiary in a certificate of a fraternal benefit association has no vested interest in it. [Masonic Ben. Assn. v. Bunch, 109 Mo. 560, 579; Wells v. Mutual Ben. Assn., 126 Mo. 630; 1 Bacon, Benefit Societies, sec. 291a; Keener v. Grand Lodge, 38 Mo. App. 552.] It therefore becomes of importance to ascertain whether the certificate in controversy is what is known as a benefit certificate in a fraternal benefit association, even though all its classes of beneficiaries are not identical with those named in our statute. The defendant is, in point of fact, a fraternal association under the laws of Iowa; and its organization, its mode of payment of benefits and of raising funds therefor is, in such respects, in keeping with our law relating to such associations as stated in Toomey v. Supreme Lodge, 147 Mo. 129, 136. The rights of the beneficiaries in this case,are therefore the rights recognized by the law applicable to such certificates. The right of a beneficiary in the certificate, or the prospective fund which it represents, as we have already seen, is not a vested right (1 Bacon on Benefit Societies, sec. 291a). Not being a vested right, whatever interest the daughter, Elsie, had in it,
Onr conclusion, heretofore stated, that the defendant is not entitled to the privileges and exemptions granted to a fraternal benefit association in this State, is not a conclusion that it is not such an association, and it is not inconsistent with what we have just written. For the ground upon which we refuse defendant such privileges and exemptions is not that it is not a fraternal benefit association, nor that its contract is not of the same nature as contracts of fraternal benefit associations, but it is upon the distinct ground that in the Iowa law providing for other and different classes of beneficiaries, it made it impossible for defendant to “come within the description” of such associations as they are created and described by our law. It must be manifest that the nature of the contract of an association of one state and the interest or non-interest of the beneficiary therein, is not affected by the mere fact that such association has more classes of beneficiaries than are allowed by another state in which such contract is litigated.
It therefore follows that plaintiff Keene in his capacity as- administrator had no interest in the action and that as to him, there was, under the authority of Overshiner v. Britton, 169 Mo. 351, and Poor v. Watson, 92 Mo. App. 89, a total failure of proof, that is to say, he failed to show a cause of action.
VI. As the cause is to be retried, it becomes necessary to state the interest which the surviving sister, Anna, has in the certificate. Is she entitled to the full sum of tAvo thousand dollars, or to only one thousand, the remainder lapsing to the association? The certificate itself reads, that in case of death of the member his beneficiaries are “to participate in the mortuary fund to the amount of one full assessment on all members in good standing in the fraternity, not to exceed
If everything is performed, which is required by the association, there cannot be a lapse of the fund, except the beneficiary dies, or otherwise becomes incapacitated to take. Whether there is a lapse in the present instance of what would have been Elsie's interest depends upon the nature' or character of the appointment of the beneficiaries. If the appointment was to Elsie and Anna separately, each to have their part, they might properly be likened to legatees in a will and be held to be tenants in common; and one dying before the death of the member making the appointment, the share of the survivor would only be her portion as it would have been had her sister not died, that is, one thousand dollars. On the other hand, if the appointment was to Elsie and Anna jointly, or to them collectively as his children (in other words, as a class) though separately designated by name, they would be likened to joint tenants and the survivor would take the whole fund. [Jackson v. Roberts, 14 Gray 546.]
The power of appointment of beneficiaries (within the classes recognized by the statute) rested exclusively with the member, as much so as his power to name legatees or devisees in a will, and, the rule of construction of wills may very well be applied to the construction of a certificate, that is to say, the intention of the member is the controlling element. [1 Bacon on Benefit Societies, sec. 255; Union Mut. Assn. v. Montgomery, 70 Mich. 587; Duvall v. Goodson, 79 Ky. 224.] The words of appointment used in the certificate are the same as if they had been that the fund should be paid
VII. One of the defendant’s points against plaintiff’s right to avoid the defense of suicide is placed on the ground of estoppel. It is said that since plaintiff entered the contract with defendant as such association, at reduced rates and easy terms for life insurance; that since he affiliated with its members and enjoyed its privileges, social and financial, the latter by way of reduced rates which were founded, in part, on its being free from the disability of showing suicide as a defense, he ought not now to be allowed to show that it is not an association recognized by the law of this State. Authority is cited on the general proposition that one, who has contracted with an organization as a corporation in its corporate name, is estopped to deny its existence as a corporation (West Mo. L. C. v. Railway, 161 Mo. 604). And that non-compliance with the provisions of a charter is no defense to an action by the company for dues. [2 Joyce on Ins., sec. 1311.] And that a defendant who has contracted with a corporation will not be permitted to allege any defect in its organization (2 Herman on Estoppel, secs. 1252, 1254). We do not regard the position to be well taken, nor the authorities as sustaining the point. When the statute forbids a contract, or only permits it to be executed under certain conditions, such act cannot be made legal through the channel of estoppel; if it could,
VIII. From the characterization which we have given the certificate in controversy, it may be suggested that the defendant does not fall within the class of insurance companies to which the statute (section 7896, Revised Statutes 1899) denies the. defense of suicide. But we think that it does. The application of that statute is not confined to insurance on the old line life plan; it is broad enough to cover any life insurance which is not withdrawn from its application by some other statute.
The judgment is reversed and the cause is remanded.
