27 Del. 272 | Del. Super. Ct. | 1913
delivering the opinion of the court:
This proceeding is based on the statements of claim filed by the claimants, to a fund of one thousand six hundred and nine dollars paid into court under the court’s order, in a petition for interpleader entered by “the Grand Lodge of the Ancient Order of United Workmen of Delaware.” In the petition, the lodge disclaimed all interest in the fund, and prayed that Harry Emmons, trustee, the plaintiff in the suit against it, be ordered to interplead with Elizabeth A Wittaker, claimant. The prayer was granted and order to interplead signed.
Harry Emmons, trustee, claimed in his statement: That J. Jackson Wittaker had in his lifetime been a member of the Ancient Order of United Workmen, which had in 1885 issued a benefit certificate to him for two thousand dollars, wherein Harry Emmons, trustee, was named as beneficiary; that, at the time of death, J. Jackson Wittaker was a member in good standing; that, when this certificate was issued, .the laws of the order did not limit the member to the appointment of a beneficiary within a restricted class; that Emmons, trustee, is entitled to the fund paid into court under the bill of interpleader.
Elizabeth A. Wittaker in her statement of claim alleges: That she is the widow of J. Jackson Wittaker, who died on May 1, 1912, intestate and without issue, and as widow under the intestate laws of this state is entitled to an interest in his estate; that J. Jackson Wittaker became a member of the A. O. U. W. in 1882,
This claimant also alleges, that Harry Emmons, trustee, was named as beneficiary to secure him as endorser on certain promissory notes or obligations, and as surety for certain indebtedness of J. Jackson Wittaker to Harry Emmons, all of which the said Wittaker paid before his death, and the trust created for the benefit of Emmons had ceased, and he, Emmons, at the time of the death of Wittaker, did not hold the benefit certificate in trust for any purpose whatever.
Elizabeth Wittaker claimant also offers to reimburse Emmons out of the fund of one thousand six hundred and nine dollars, for any payments or advances he may have made to the Grand Lodge for Wittaker, together with interest..
To the statement df claim filed by Elizabeth A. Wittaker, Harry Emmons, trustee, the other claimant, enters a demurrer.
The claims of Elizabeth A. Wittaker may be generally summed up as follows: (1) That under the laws of the order
“6. Order of Payment of Beneficiaries:—If one or more of the beneficiaries shall die during the lifetime of the member, the surviving beneficiaries shall be entitled to the benefit equally, unless otherwise provided in the beneficiary certificate; and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction in the manner provided by the laws of the order, the benefit shall be paid to his widow, if any; if he leaves no widow, then to his children in equal shares, grandchildren to take the share to which their deceased parent would be entitled if living; if no children, or their issue, then to his mother, if living; if no mother, then to his father, if living; and all these failing, then to his legal heirs.”
It will be observed that two things must occur before the widow of a deceased member is entitled to the beneficiary fund under the provisions of this section; First, the death of the beneficiary or beneficiaries named in the certificate during the lifetime of the member, and, second, the failure of the member to ■ make any other designation in the manner provided by the laws of the order. Upon the failure of the happening of both contingencies the widow has no right to the fund under section 6.
In the present case, the beneficiary did not die during the lifetime of the member, but is now alive, and therefore the first of the two things necessary to take place, before the widow would be entitled to the fund, did not happen.
While we are not ready to accept the argument that such a meaning should be given to the section in question, yet briefly we will consider the effect of such a construction, as it pointedly raises the question, whether or not, the beneficiary named is an illegal one.
“5. Beneficiaries.—Each applicant shall designate the person or persons to whom the beneficiary fund due at his death shall be paid; who shall, in every instance, be one or more members of his family, or some one related to him by blood, or at the discretion of the Grand Master Workman, may be an affianced wife, or who shall be dependent upon him. Provided, in no instance shall a divorced wife of a member remain his beneficiary after divorce.”
This section provides that each applicant shall designate the person, to whom the beneficiary fund shall be paid, who shall be a member of his family or a blood relative. It refers only to those who were at the time applicants for membership, or would after-wards become applicants.
This section by its terms did not bring within its scope those persons who were at the time members of the order. It referred to those only who were applicants, or would thereafter become applicants for membership. It was in terms and in effect prospective and not retroactive.
Therefore if section 6 should be construed to mean that the widow has a right to the fund if the beneficiary named by the assured is an illegal appointment, as claimed by Elizabeth A. Wittaker, she would not be entitled to the fund in the present case, because this court has already held in the above case, that a like appointment was not made invalid, by the subsequent passage of a law similar to section 5, and under the doctrine of stare decisis, this court will follow the precedent therein established, and hold that the beneficiary is not an illegal one.
In Massachusetts and New Jersey they have statutes which provide, that associations may be formed to pay benefits to persons designated by the members, within certain restricted classes only. The courts of these states construe the statutes liberally, in cases coming within the statutes, and have held, where the beneficiary designated was an illegal one, the fund will not revert to the association because of the illegal designation, but it will go to the person or persons living at the time of the member’s demise, first legally entitled to take, in the classes as set forth in the-laws
In this state we have no statute covering the subject and therefore those cases, cited by counsel for the widow, which are decided by the courts under statutes as above, are of very little assistance to us.
For a moment we will consider the present case, as one where the fund was payable at the expiration of ten years, after the issuance of the certificate, and the facts of the trust were as claimed by Mrs. Wittaker. At the expiration of the ten years when the fund became payable, if Wittaker made no objection to the fund being paid to the trustee, we are not cognizant of any principle of law, by which the widow could come into court and successfully claim the money. In principle there is no difference between that case and the present one, and in the absence of statute law, we have failed to find any law which would authorize this court to order the fund here, to be paid to Elizabeth A. Wit-taker, widow of J. Jackson Wittaker.
While under the law the widow is not entitled to the fund, nevertheless it does not follow and we do not decide that the trustee has a right to receive and keep it, if it is true that the trust has failed or lapsed by reason of the payment, by Wittaker, of the obligations. It would not be either equitable or just to have the trustee paid his debt, and permit him under objections by a proper person, to also keep the security placed in his hands. Under such circumstances the trust would fail or lapse, and we believe there would be by operation of law, a resulting trust of the security in favor of the person who had created the trust, and if that person should be dead then in favor of his estate. Bancroft v. Russell, 157 Mass. 47, 31 N. E. 710; Haskins v. Kendall, 158 Mass. 224, 33 N. E. 495, 35 Am. St. Rep. 490; Schmidt v. Northern Association, 112 Iowa 41, 83 N. W. 800, 51 L. R. A. 141, 84 Am. St. Rep. 323.
The decision of the court in Bancroft v. Russell appeals to us to be a sound statement of the law. And while we are of the opinion that Elizabeth A. Wittaker, the widow of J. Jackson Wittaker, is not entitled to the fund paid into this court, under her statement of claim filed, yet we can readily conceive that if the fund should be paid to Harry Emmons, trustee, by order of this court, he can be compelled in a proper proceeding in a suitable court, to account for such funds, as trustee.
Demurrer sustained.