82 Pa. Super. 220 | Pa. Super. Ct. | 1923
Argued October 9, 1923. This appeal brings up the record of the trial of an interpleader in which Sarah Downing, widow of William Downing, deceased, plaintiff, on the one hand, and decedent's children by a former wife, defendants, on the other hand, claim a sum paid into court by the Police Beneficiary Association of the City of Philadelphia. The issue was made by an amended statement of claim, and an affidavit of defense. After a jury trial resulting in a verdict for plaintiff for the full amount, the court granted defendants' motion for judgment for that amount notwithstanding the verdict; that action is assigned for error.
Decedent, William Downing, became a member of the association in 1888, accepting its beneficiary certificate in which his wife, Mary G. Downing, was named as beneficiary. She died. Subsequently, in 1905, on his application, a second certificate was issued to him, naming the present defendants, his children, as beneficiaries, and that certificate he delivered to them. He died January 17, 1920, leaving, besides these children, a widow, Sarah Downing, the plaintiff, whom he had married in 1907. The children then asserted their claim as beneficiaries under the certificate of the association, and the widow asserted hers as herein described; the association paid the money into court with the result stated.
What was said by Mr. Justice FRAZER in Bell v. Police Beneficiary Association,
Sarah Downing's contention, averred in her statement of claim, is to the effect that about November 22, 1919, in accordance with its by-laws, Downing notified the association of his desire to have her, his wife, substituted as beneficiary in the certificate but that the association declined to make the change; that he was in good standing at his death, and that she was therefore entitled to payment. In support of that allegation, she testified that in August, 1919, at their residence in New Jersey, she and her husband were visited by one of his daughters, Mrs. Green, a defendant, at which time Downing "...... *224 said he wanted the certificate sent down to him to Somers Point, he was unable to come up and do anything about it himself, that he had let it go too far, and wanted it sent down, he wanted to alter it, to have it fixed for me, that all the money he ever had handled would not repay me for the care I took of him in endangering my life with the disease he had." To that request, she says, the daughter, replied "all right"; that the daughter and also her husband who was present, stated they would attend to the matter and send the certificate "down to him so that he could have it transferred to me" [plaintiff]. She also testified that in the following November there was another interview about it during which the daughter informed decedent that she had consulted "Mr. Bodkin" [secretary of the association] and he "said it couldn't be changed, the by-laws could not be altered," but that her husband repeated that "he wanted it, that it [certificate] should be for me" [the widow]. Following that, on November 22, 1919, plaintiff wrote a letter to the association, which decedent signed and which the association received, requesting the association to issue a certificate substituting his wife for his daughters; nothing was said in the letter about the interest of decedent's son. On that date, Mrs. Green wrote to decedent, stating in substance that the secretary of the beneficiary association had informed her that the change could not be made unless "all the children consented." A daughter of the plaintiff by a former marriage, testified that about a year before Downing's death and also at some period not definitely stated, but antedating 1916, she heard decedent say that "when he was gone my mother should have his benefits, the police benefits." Bodkin, secretary of the association, testified that about the time the letter of November, 1919, was received by him, "some one came in, but I could not say who it was, to have the certificate transferred to this gentleman's wife" [the plaintiff]; "I told them I could not change that certificate until I *225 would have a sworn affidavit from all persons named on the certificate down there, then I would transfer it."
At that time, then, when the efforts to obtain a change ceased, neither party had any right to action by the association save upon compliance with its by-laws, and those the association declined to waive; the effect was that Downing was unable to make the change in beneficiaries because he could apparently not get the consent of his children, and he could not compel the association to depart from its by-laws: Bell v. Police Ben. Assn.,
The learned trial judge charged the jury that "for the purpose of bringing the issue to a point where the court can consider the law," he would submit to the jury to find whether Downing's signatures to the papers in evidence were genuine and whether they had been dealt with as Mrs. Downing had testified, and, if so, the jury might bring in a verdict for her; but if the jury found the signatures were not genuine, the verdict should be for defendants.
It is clear from what has been said, that Downing's contract with the association expressly provided that the association might decline to change the name of the beneficiary without the consent of his four children who had previously been named in the outstanding certificate: "...... it is within the power of the member to change the beneficiary whenever he chooses to do so, subject, however, to the qualification that such right must be exercised strictly in accord with the by-laws of the association, otherwise the latter is not bound to recognize the new beneficiary: Vollman's App.,
Appellant presents another question. It is contended that she proved an antenuptial agreement entitling her to the fund. The court received that evidence subject to objection, subsequently refused a motion to strike it out, but finally decided it could not be considered because not within the allegations of the statement of claim, and that an appropriate amendment could not be allowed because it would introduce a new cause of action.
We need not discuss that phase of the appeal further than to say the evidence is not sufficient in any event to sustain a finding that an antenuptial agreement was made. The evidence is the other way. The efforts of the decedent and his wife, shortly before his death, to have her named beneficiary, negative the claim in this suit that there was an antenuptial agreement (P.R.R. Co. v. Wolfe,
Judgment affirmed.