Hayden v. Women's Catholic Order of Foresters

167 Wis. 437 | Wis. | 1918

Siebeceer, J.

Counsel for tbe respective parties have submitted exhaustive briefs upon tbe various questions presented by tbe different issues raised by tbe pleadings and tbe evidence. Upon tbe view of tbis court that tbe rights of tbe parties are concluded by tbe terms and conditions of tbe certificate issued to Mrs. G-illard and tbe provisions of tbe constitution of tbe order, all other questions are rendered immaterial to tbe decision and need not be considered and discussed.

Tbe plaintiff avers that be bad a vested interest in tbe certificate be held and bases tbis right- upon tbe twofold basis (1) that be bad been designated tbe beneficiary for a valuable consideration in tbis certificate, and (2) that be bad acquired an interest in tbis certificate and tbe proceeds thereof by an assignment of an interest to him under a parol agreement with bis mother for a valuable consideration, and that tbe defendant bad notice thereof before it issued a subsequent certificate wherein Mary Keenan was designated as tbe beneficiary.

Tbe decisions of tbis court establish that tbe beneficiary named in a certificate of a benefit society organized like tbe defendant does not acquire absolute and indefeasible rights until the death of the member to whom the certificate is issued. Malancy v. Malancy, 165 Wis. 642, 163 N. W. 186, and cases of this court there cited to this proposition. The provisions of sub. 5, sec. 1957, Stats., harmonize with this principle. It is also well established that the provisions of the constitution of a benefit society, made a part of its contract with a member, are binding upon the members. Thomas v. Covert, 126 Wis. 593, 105 N. W. 922; Ormond v. McKinley, 163 Wis. 205, 157 N. W. 786; Malancy v. Malancy, supra.

■ The certificate in question provides that it is issued upon condition that the insured complies with the laws, rules, and regulations of the order. The constitution of the order provides, among its laws, rules, and regulations:

“No will shall be permitted to control the endowment or distribution of, or rights of any person to, any endowment payable by this order.” Art. XV, Endowment Certificates, sec. 2, par. 3. . . . “An endowment certificate cannot be made payable to a creditor, nor held wholly or in part, nor assigned, to secure any debt which may be owing by the member. Any assignment of an endowment certificate by a member or a beneficiary shall be void.” Sec. 2, par. 4.

The provisions specifically prohibit and make void any assignment, transfer, or pledge of the certificate or the proceeds thereof. It appears that the plaintiff, under the alleged arrangement with his mother, was her creditor to the extent of the moneys advanced or paid to her or paid for her as assessments and dues assessed against her as a member of the order. It is obvious that any attempted assignment or pledge thereof by Mrs. Gillard is void under the terms and provisions of the order’s ’rules and regulations, and that plaintiff acquired no rights or interest in or to the certificate and its proceeds, and that he has no cause of action against the defendant.

The foregoing determination is on the assumption that the plaintiff’s claims would be sustained by tbe evidence of tbe alleged parol agreement between himself and bis mother for an assignment and transfer to him of an interest in tbe certificate. We assume this state of facts without deciding tbe question whether or not tbe plaintiff is a competent witness to testify to such parol agreement which he claims to have made with his mother, now deceased, under the provisions of sec. 4069, Stats.

Upon the foregoing consideration it follows that the trial court erred in holding that the plaintiff had a right to recover on the certificate in question.

By the Court. — -The judgment appealed from is reversed, and the case is remanded with direction to the trial court to dismiss plaintiff’s complaint.