Hall v. Allen

| Miss. | Mar 15, 1897

Whitfield, J.,

delivered the opinion of the court.

The payment of the money into the bank had the effect to remit the legal question of who was the rightful claimant of the fund arising from the benefit certificate, to the court. It had no effect as between the rival claimants, but it did operate a waiver by the order, so far as its rights were concerned, of conformity of the change in the benefit certificate to the provisions of section 66 of the constitution of the grand lodge, so long, at least, as the order did not appear as a party resisting the payment. The order is no party here; does not setup such want of conformity, and no other party can, in such case, invoke the said section 66, intended alone for the protection of the order. Tilsworth v. Tilsworth, 20 Pac. Rep., p. 213.

On the facts of record, we think the insured intended to make the change in the beneficiary in accordance with section 66, and manifested that intention by doing all he could do towards that end, situated as he was. He wrote the name, Emma Allen, in the note book of his selected agent, but, from physical inability, could write no more. He seems not to have been able to write the day he died, or, perhaps, the day before. He gave full verbal instructions and authority to Porter. His certificate was not in his possession — the old one having been exchanged for a new one — but was locked up in the desk of the secretary of the subordinate lodge at Vicksburg, so that he could not personally comply with section 66. He had not been in Vicksburg for two weeks prior to his death, and the new certificate, which it was the duty of the subordinate lodge to deliver to him, had been, for two weeks, in the custody of the secretary of that lodge.

The intention that the sister, Mrs. Emma Allen, should be the beneficiary, is abundantly shown, and the reason therefor. On this state of case we approve and adopt the language of the supreme court of Texas, in Splawn v. Chew, 60 Tex., pp. 536, 537: “A method by which he may accomplish it [the change in the beneficiary], to the satisfaction of the order, is pointed out in the section last recited, but we do not consider this as exclusive of all other ways of effecting the same object. The design of this section is to protect the interests of the corporation. The company is entitled to know who are the parties entitled to the benefit money, and this is an effective and certain means of giving that information. But, like all such provisions in the by-laws of private corporations [the order being the American Legion of Honor, a mutual benefit order, as here], it may be waived at the option of the corporation, being for its benefit alone.”

Seay, having repeatedly declared his intention that his sister, Mrs. Emma Allen, should be the substituted beneficiary, and having actually done all he could in his condition to accomplish that purpose, and to accomplish it in the very mode prescribed by section 66, his acts being partly in writing and partly in parol, equity will treat that as done which ought to have been done, and decree as if the change had been made in conformity with said section. It will perfect his imperfect and incomplete, but partly accomplished, purpose, and act and deal with it as perfected, as between these claimants. The case falls strictly within the second and third exceptions to the general rule pointed out by Justice Brown, now of the United States supreme court, in Supreme Conclave, etc., v. Coppella, 41 Fed. Rep., p. 1, cited in 1 Bacon on Ben. Socs., section 310a. And in such case it is well settled that the death of the assured, before the completion of the change in the beneficiary, makes no difference. The authorities following thoroughly settle the correctness of these views: Splawn v. Chew, supra; Schmidt v. Iowa K. P. Ins. Assn., 82 Iowa, 304" court="Iowa" date_filed="1891-02-09" href="https://app.midpage.ai/document/schmidt-v-iowa-knights-of-pythias-insurance-7104851?utm_source=webapp" opinion_id="7104851">82 Ia., 304; Tilsworth v. Tilsworth, supra; Nat. Assn., etc., v. Kirgin, 28 Mo. App., 80" court="Mo. Ct. App." date_filed="1887-11-22" href="https://app.midpage.ai/document/national-assn-of-the-national-american-assn-v-kirgin-8259307?utm_source=webapp" opinion_id="8259307">28 Mo. App., 80; Rollins v. McHatton, 16 Col., 207, 208; Knights of Honor v. Watson, 15 A., 125" court="N.H." date_filed="1888-06-05" href="https://app.midpage.ai/document/knights-of-honor-v-watson-3551659?utm_source=webapp" opinion_id="3551659">15 Atl. Rep., 125; Brown v. Monsus, 5 A., 768" court="N.H." date_filed="1886-06-05" href="https://app.midpage.ai/document/brown-v-mansur-3551406?utm_source=webapp" opinion_id="3551406">5 Atl. Rep., 768; 1 Bacon on Ben. Socs., sections 310, 310a.

There are other views leading to the same conclusion we have announced, and a multitude of authorities could be marshaled. But the briefs of the very able counsel for appellant and ap-pellee, present their various contentions with such unusual clearness and force, and marshal the authorities with such discriminating accuracy in support of these contentions, that the profession will get from them, when published in full, as we now direct them to be by the reporter, all the light we could throw upon the subject by any further elaboration.

Affirmed.