163 Mo. App. 186 | Mo. Ct. App. | 1912
This suit was instituted against the Modern Woodmen of America by Flora Henderson on a benefit certificate issued to Albert Merchant and payable to the plaintiff, his mother. The Modern Woodmen of America answered by bill inter-pleading Vergie and Lawrence Merchant, claimants of the benefits under the certificate, and paid the money into court. Vergie and Lawrence Merchant inter-pleaded for the fund and on the trial were successful, and the plaintiff appealed. The respondent, Vergie, was the wife and the respondent, Lawrence, was the son of the insured. Albert, before his marriage, became a member of the local Woodmen Camp, at Rich Hill, Missouri, and took out the certificate in question August 30', 1908, payable to Flora Henderson, his mother. Albert Merchant died May 8, 1911, and it is claimed by the respondent interpleaders that he changed his beneficiaries to his wife and son before his death.
The evidence showed that it was the intention of the deceased to take out another policy for the benefit of his wife and son, but he failed. Not having taken out such other insurance, when he became sick and learned from his doctor that he could not recover, he concluded to change the beneficiary in the certificate from plaintiff to respondents. A short time before he died he requested that some one would go to the camp clerk, who lived thirteen miles distant, so he could have him change the certificate and make it payable to his wife and child, but no one went. The1 plaintiff lived thirteen miles away and there was no time in which to go to her and obtain the certificate. He then requested his brother-in-law, John A. Edwards, who was present, to write the following paper:
I, Albert Merchant, being sick in a dangerous condition and desiring to change my beneficiary of policy of M. W. of A. from Mrs. A. W. Henderson, to my wife and child, Mrs. Yergie M. Merchant and Lawrence E. Merchant, half of policy to each. This being my earnest request.
Signed. Albert A. Merchant.”
The paper was signed by a mark, the doctor holding and steadying the man’s hand, who was in a very feeble condition, and died shortly thereafter The paper was delivered to the local camp. There is evidence to the effect that plaintiff when shown this paper expressed her satisfaction at the change, but she testified that she did not remember that she did.
Sections 47 arid 48 of the by-laws of the defendant organization in force at the time of the issuance of the certificate and at the time of the member’s death provided for the manner in which a change of beneficiary shall be made. They are as follows: “If a member in good standing at any time desires a change in his beneficiary or beneficiaries, and to obtain a new certificate, he shall pay to the ■ camp clerk a fee of fifty cents and deliver to him his benefit certificate, with the surrender clause on the back thereof duly filled out and executed by him, designating therein the change desired in the beneficiary or beneficiaries. The execution of such „ surrender clause by the Neighbor shall be in the presence of, and attested by, his camp clerk. If, however, the member be so situated that he cannot execute the said surrender clause in the presence of the clerk of his camp, the signature of the member thereto may be attested by the jurat or acknowledgment of any person authorized by law to administer oaths and take acknowledgments, and the same shall be forwarded to the clerk of his local camp. The local clerk shall deposit one-half of said fee of
“In case a benefit certificate is lost, destroyed, or beyond the member’s control, he may, in writing, on form furnished by the head clerk, waive all claims thereunder, designate the same or some other beneficiary, the same or a smaller amount of benefit, and have a substitute certificate issued by filing the said waiver with and paying to his camp clerk a fee of fifty cents. Thereupon the camp clerk shall forward to the head clerk said waiver and one-half of said fee, whereupon a substitute certificate shall be issued as requested. No change in the designation of beneficiary or beneficiaries shall be effective until a new certificate shall have been issued during- the lifetime of the member, and until such time the provisions of the old certificate shall remain in force.”
It is not claimed that any of the conditions of said sections were complied with in order to obtain a change of the beneficiary of the certificate, but it is insisted that everything was done that could have been done under the circumstances. This court held in A. O. U. W. v. Ross, 89 Mo. App. 621, that in order to procure a change of beneficiaries there must be a
The question again arose in Abies v. Ackley, 133 Mo. App. 594, where it is held, “that the member’s promise and intention to transfer the certificate to another, although it was well known to the society with notice that the new beneficiary was paying the dues thereon, was not sufficient to waive compliance with the by-laws and transfer the certificate to the new beneficiary.” There the member had attempted to make the change, but he failed to do so. The by-laws of the order provided that no change in the beneficiary “shall be effective” unless the old certificate shall have been surrendered to the head clerk of the local
In Walsh v. Trust Co., 148 Mo. App. 179, the rules of the order required that if the member desired to change the beneficiary he could do so by forwarding the certificate to the proper authority with a request written thereon, giving the name of the new beneficiary. A member, who did not have the certificate, executed an instrument asking for a change of beneficiary. The instrument was sent to the proper authority and it returned the same with the statement that the request for the change be filled out on the official blank of the order, which was inclosed. The member died before the official blank was received. The proceedings in that case were in equity, and it was held that the member did all he could to effectuate a change in the beneficiary. And it is held: “Where . . . directory provisions with relation to designating a beneficiary were never lived up to by the association, nor required of members, a strict compliance with them on the part of a member was waived.” [Police Relief Ass’n v. Tierney, 116 Mo. App. 447.]
It is plain that under the law, as interpreted by the Supreme and appellate courts of this state, that strict compliance with rules requiring a change in a benefit certificate is not required, but that a substantial compliance with such rules .is sufficient. That all that is required is that the member do all that is reasonably in his power to effectuate his purpose to accomplish such change.
By said section 48 of the by-laws of the order it -is provided, among other things, that if the benefit certificate “is lost, destroyed, or beyond the member’s
