85 Neb. 803 | Neb. | 1910
Action on a fraternal benefit certificate issued by the Grand Lodge of the Ancient Order of United Workmen of Nebraska for the sum of |2,000 to one Harry 0. Vanderberg, deceased. The cause was submitted to the district court on a demurrer to the petition. Defendant had judgment, and the plaintiffs have appealed.
The question presented by the record is: Did the district court err in sustaining defendant’s demurrer and dismissing plaintiffs’ action? The petition is too long to be copied in full in this opinion, and it is sufficient to say that it alleges, in substance, the organization and corporate existence of the defendant association under the laws of this state. It sets forth the fact that Harry C. Vanderberg joined the defendant order and became a member of Concordia Lodge No. 151 of Lincoln, Nebraska, which was and is one of the subordinate lodges of the defendant; that thereupon, and on the 15th day of March, 1894, the defendant issued to him its indemnity certificate for the sum of $2,000, in which his wife, Mathelde Vandeberg, was named as beneficiary; that on the 9th day of February, 1902, said beneficiary died, and on the 4th day of March of that year Vanderberg surrendered his certificate of indemnity, and at his request defendant issued to him a new certificate, in which his daughter Josephine was named as beneficiary. The terms of his original certificate, however, are nowhere set forth in the petition. The petition further alleges that on the 24th day of April, 1903, Josephine M. Vanderberg, the beneficiary named in the new certificate, died, and thereafter Harry C. Vanderberg had no legal heirs or relatives living which were related to him by blood, or could be named under the then existing statutes of this state as his beneficiary; that after the death of his daughter, and on the 2d day of May, 1903, Vanderberg wrote a letter to one G. R. Wolf, who it is alleged was at that time the financier of local lodge No. 151 at Lincoln, Nebraska, informing him of the death
It is now contended by plaintiffs that, when Vanderberg joined the order and procured his original certificate, it
It is contended by the defendant that even if the plaintiffs could, under any circumstances, have been so named, the allegations of the petition are insufficient to show that they have been so designated. It is shown by the petition that Vanderberg knew Avhat Avas necessary to be done in order to effect a change of the beneficiary named in his certificate. He had already procured one such change. He declined, lioAvever, to surrender the certificate and have another issued with the names of those on whom he sought to bestow his bounty inserted therein, and Ave are constrained to hold that mere notice to the financier of a subordinate lodge is insufficient to constitute a change of beneficiary, and the defendant grand lodge is not bound thereby. Especially is this so when there is no averment in the petition that the officer of the subordinate lodge so notified had the power or authority to bind the defendant.
Again, it can scarcely be said that the allegations of the petition are sufficient to show that the deceased actually named the plaintiffs as his beneficiaries. It will be observed that in his letter to Wolf he refused to name them, and merely indicated that he wanted the indemnity to go to his Avife’s relatives. An examination of his so-called Avill sIioavs that the deceased had property other than the certificate in suit, and no reference is made therein to the certificate. The will contains no statement that the property Avhich he sought to distribute among his Avife’s relatives was the money indemnity mentioned therein.
The petition being found defective in the foregoing
For the foregoing reasons, the judgment of the district court is
Affirmed.