81 Ind. App. 29 | Ind. Ct. App. | 1923
Appellee, as administrator of the estate of Sherman Lammedee, deceased, filed his complaint against the Supreme Tribe of Ben Hur, a fraternal benefit society, to recover on a certificate of insurance, issued by it to said decedent. Said Supreme Tribe filed a bill of interpleader, admitting its- liability, and alleging that appellant, as guardian of Louis, George and Glen Heinzman, was claiming the proceeds of said certificate; that it was impartial and disinterested as between said claimants, and desired permission to pay the money into court, pending a determination of the rival claims thereto. The money was paid into court, and thereupon an order was entered discharging the insurer, and directing that the wards of appellant be made parties defendant. Appellant, as such guardian, thereafter filed an answer to appellee’s complaint, and also a cross-complaint against appéllee, upon which issues were duly joined. A trial resulted in a judgment in favor of appellant, which was reversed on appeal. Whiteman, Admr., v. Heinzman (1919), 72 Ind. App. 385. After the cause was remanded for further proceedings, appellant filed a second amended cross-complaint, which alleged, in substance, among other things, that he is the duly appointed, qualified and acting guardian of Louis, George and Glen Heinzman, who are minors; that on September 27,1900, the Supreme Tribe
“Section 118. A member may designate as beneficiary any one or more persons of any of the following classes viz.: Families, heirs, blood relatives, affianced husband or affianced wife, or persons dependent upon the member. It is expressly prohibited by the Statutes under which this Society is organized, to designate as a beneficiary, ‘a friend, Creditor, or trustee,’ not above contemplated. No will, codicil or other legal testament, shall be permitted to control the distribution of the fund or affect the right of a beneficiary as named in any Certificate issued by this Society. * * *”
“Section 119. If a member desires to change his beneficiary or beneficiaries, named in his certificate, he shall indicate the same in the blanks as provided on the back of his certificate, inserting and signing his name in full, ink, just as written in the face of his certificate, and inserting the full name or names of his new beneficiary and relationship thereof. His signature must be attested by the Scribe of his Court, and he shall pay the fee of 50 cents to the Scribe, who shall forward said fee together with the certificate to the Supreme Scribe, for the approval and ' official endorsement of said change. No change in beneficiary or beneficiaries will be approved unless said beneficiary or*33 beneficiaries come within the provisions of the preceding section.”
It is further alleged, in substance, among other things, that on May 22, 1900, said Laura I. Lammedee died, and the insured thereafter, on January 10, 1910, by his written change of beneficiary, designated Jane Lammedee as the beneficiary under said certificate; that on October 13, 1914, said Jane Lammedee died, and thereafter on November 14, 1914, said insured executed his written change of beneficiary, designating said Louis, George and Glen Heinzman, as beneficiaries under said certificate, which said written change of beneficiary is as follows: (Here follows copy of same instrument set out in former opinion of this court, and designated “Change of Beneficiary”) ; that said written change was attached to the back of said certificate, and was executed by the insured signing his name in ink, as it appears on the face thereof, and by inserting in said written change the full names of the- new beneficiaries ; that the signature of the insured thereto was duly attested by the Scribe of the Court of said Supreme Tribe of which the insured was a member^ and the insured paid said Scribe the required fee of fifty cents, in order to effect such change; that the insured thereupon executed the following written request for a change of beneficiary in his certificate: (Here follows copy of the request, bearing date of November 20, 1914, set out in former opinion of this court.) ; that said local Scribe thereupon forwarded said fee and written request, together with the insured’s certificate, and the instrument attached thereto, making a change in the beneficiary, to the Supreme Scribe of the insurer for the approval and official endorsement of such change; that the said Louis, George and Glen Heinzman were each minors at the time of such change of beneficiary,
It will be observed that the cross-complaint under consideration alleges, that said Supreme Tribe of Ben Hur, which issued the certificate of insurance in suit, was a fraternal benefit society. It is well settled that the beneficiaries named in such certificates may be changed by the members to whom they are issued, free from all limitations or restrictions, except those imposed by law, or such as are imposed by the articles of incorporation or the by-laws of the society, or by the terms of the certificates themselves. In other words, since the provision of any statute affecting such a certificate, as well as the articles of incorporation and by-laws of the association, become a part of the contract of insurance, the general rule may be said to be, that the holder of such a certificate has the right to change the beneficiary named therein, unless the contract provides to the contrary. Masonic, etc., Society v. Burkhart (1887), 110 Ind. 189, 10 N. E. 79, 11 N. E. 449; Presbyterian, etc., Fund v. Allen (1886), 106 Ind. 593, 7 N. E. 317; Holland, Gdn., v. Taylor (1887), 111 Ind. 121, 12 N. E. 116; Milner v. Bowman (1889), 119 Ind. 448, 21 N. E. 1049, 5 L. R. A. 95; Mason v. Mason (1902), 160 Ind. 191, 65 N. E. 585; Bunyan v. Reed (1904), 34 Ind. App. 295, 70 N. E. 1002; Carpenter v. Knapp (1897), 101 Iowa 712, 70 N. W. 764, 38 L. R. A. 128; Martin v. Stubbings (1888), 126 Ill. 387, 18 N. E. 657, 9 Am. St. 620; Delaney v. Delaney (1898), 175 Ill. 187, 51 N. E. 961; Royal Arcanum v. Behrend (1918), 247 U. S. 394, 38 Sup. Ct. 522, 62 L. Ed. 1182, 1 A. L. R. 966. It is clear that where no mode for making a change in the beneficiary is prescribed, the same may be effected in any way the insured may
“Trivial or casual, or perhaps wholly charitable assistance, would not create a relation of dependency, within the meaning of the statute or by-laws. Something more is undoubtedly required. The beneficiary must be dependent upon the member in a material degree for support, or maintenance, or assistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral, or legal, or equitable grounds, and not upon the purely voluntary or charitable impulses or disposition of the member.” McCarthy v. Supreme Lodge, etc. (1891), 153 Mass. 314, 26 N. E. 866, 11 L. R. A. 144, 25 Am. St. 637. In many cases the rule is stated to be “that dependency must rest on some moral, legal or equitable ground and not on favor, caprice or whim, which may be cast aside without violating any legal or moral obligation.” Supreme Lodge N. E. O., etc., v. Sylvester (1917),*39 116 Me. 1, 99 Atl. 655, L. R. A. 1917C 925, and cases there cited. The court, after stating the rule as above quoted, and citing cases sustaining the same, adds the following, with a citation of other cases: “This rule is supported by the general run of authority, although not all the cases use the same phraseology.” To the cases there cited, we add the following to the same effect; Whiteman, Admr., v. Heinzman, supra; Fuller v. Supreme Council, etc. (1917), 64 Ind. App. 49, 115 N. E. 372; Sovereign Camp, etc., v. Noel (1912), 34 Okla. 596, 126 Pac. 787, 41 L. R. A. (N. S.) 648; 14 R. C. L. 1386. The meaning of the term “dependent,” above indicated, was adopted by this court, on the former appeal of this cause, and is, therefore, the law of the case. Turning now to the cross-complaint before us, we find no fact alleged with reference to the contributions made by the insured to appellant’s wards for their support and education, which can be attributed, rightfully, to the discharge of any legal or moral duty, or which rested upon equitable grounds.' All of the acts upon which appellant relies appear to have been voluntarily performed, as the result of charitable impulses, and, under the facts shown, could have been discontinued without violating any recognized obligation. The cross-complaint, therefore, fails to disclose that the insured, in his last effort to change the beneficiary in his certificate, appointed anyone who was eligible, and hence there is no basis for an application of the third exception to the general rule set out above relating to a compliance with the method prescribed for making a change of beneficiaries in insurance contracts.
Appellant, in an effort to have the court reach a different conclusion, cites the fact that he alleges in his cross-complaint that each of his said wards were dependent on said decedent at the time of the execution of said change of beneficiary, and dur
Appellant, in a further effort to have the court reach a different conclusion, asserts that appellee is a mere volunteer, since the insurer does not claim that the attempted change of beneficiary was abortive, and, based on this fact, contends that appellee has no standing bo question such change. Appellee has attempted to answer this contention by citing §121 of the by-laws of the insurer, but we do not find that said section is made a part of the cross-complaint under consideration, and hence it cannot be taken into account in determining whether appellant’s demurrer thereto should have been sustained. However, we are clearly of the opinion that there is another sufficient reason for refusing to give effect to appellant’s contention, in this, that the insurer’s failure to claim that the last effort of the insured to change his beneficiary was abortive, as evidenced by its payment of the proceeds of the certificate into court, only had the effect of waiving, so far as it could do so, any objection it might have made to the insured’s failure to appoint an eligible beneficiary, but such waiver could, not impair rights which may have become vested; upon his death, by reason of a failure to make such a change. Knights of Mac
For the reasons stated, we hold there was no error in sustaining appellee’s demurrer to appellant’s second amended cross-complaint.
Judgment affirmed.