93 Ill. App. 76 | Ill. App. Ct. | 1901
delivered the opinion of the court.
There is presented upon this appeal one principal and controlling question, viz., whether the member of a beneficial order can at will change the beneficiary in his certificate, providing for payment of a sum at his death, when the person holding the certificate sought to be changed is one who might be made a beneficiary under the law and the rules of the order, and when such person has, upon the security of the certificate, advanced moneys to the member. We are of opinion that he.can not. There is no doubt but that the general rule is that a member of such an order may designate as his beneficiary arpone permitted by the law and the rules of the order, and subject to the same limitation, may from time to time change his beneficiary at will. In other words, the beneficiary named in such a certificate does not acquire any vested right during the life of the member merely by reason of the fact of being selected and named as a beneficiary. Such person ordinarily has only an expectancy, which may be defeated by the change of beneficiary according to the law and rules of the order, at the will of the member. Martin v. Stubbings, 126 Ill. 387; Benton v. Brotherhood, 144 Ill. 570; Voigt v. Kersten, 164 Ill. 314; Delaney v. Delaney, 175 Ill. 187; Balder v. Middeke, 92 Ill. App. 227.
But this general rule is subject to a limitation, viz., that where a properly appointed beneficiary has, upon the strength of the security afforded by the certificate, advanced moneys to the member, so that it would be inequitable to permit the member to deprive the beneficiary of such security, then, by reason of the equitable interest of the beneficiary, the right of the member to change the certificate at will is limited by the equitable right of the beneficiary. Royal Arcanum v. Tracy, 169 Ill. 123.
It is true that in the Tracy case and in the case now under consideration, the decision in the former and the decree in the latter are made to rest in part upon a fraudulent representation by the member to the order as to the status of the former certificate, sought to be changed. But we regard that as after all not essential, for the doctrine rests for its foundation upon the equitable interest of the beneficiary by reason of which the member can not be permitted, whether by fraudulent representation or by regular procedure, to effect a change which would be in disregard of and to the injury of such equitable interest.
In the Tracy case, supra, the court said: “ Equitable rights may be acquired in a beneficial certificate which may be enforced in a court of equity ” (citing Bispham’s Principles of Equity, Chap. 8, 162-167), and “After Tracy, in consideration of a large sum of money to him paid, pledged the benefit certificate to his wife, she acquired equitable rights in it which may be protected in a court of equity.”
. We do not regard the decision of the Supreme Court in the Delaney case, supra, as in any way in conflict with the rule as announced in the Tracy case. The decision in the Delaney case rests upon the right, in general, of a member to change the beneficiary, and this whether the preceding certificate has been surrendered or not, provided the order, between which and the member the contract of insurance exists, is satisfied to waive such surrender. Equitable rights on the part of the beneficiary in the certificate sought to be changed were not'considered or involved in that decision. The findings of fact by the trial court in the Delaney case included a finding that the member did not give the first certificate to the party claiming under the first certificate, or make any contract with her that she should receive the insurance money mentioned therein, or that he would not change the beneficiary mentioned therein; and, as if further to preclude the existence or force of any equitable right on the part of the beneficiary named in the first certificate, the further finding of fact was made in the decree, that the beneficiary there in question had been guilty of laches in the assertion of any right she may have had under the certificate. The Supreme Court said: “ It has been held in a number of cases that the mere withholding of a certificate by a beneficiary does not defeat the right of a member to change the beneficiary.”
It is apparent that the Delaney case is clearly distinguishable from the Tracy case and from the one now under consideration.
It is urged by counsel for appellant that the trial court erred in permitting appellee to testify, because, it is said, she is made incompetent as a witness by the law, and that by the statute of this State, Chap. 51, E. S., Sec. 2, the incompetency is not removed. If this contention were sound, it would remove from the case the only evidence sustaining the decree as to any agreement between John E. McGrew and appellee to the effect that appellee should be repaid moneys advanced from the amount which would be paid upon the certificate held by appellee. But we are of opinion that this contention can not be sustained. Appellee is not a litigant in any way adverse to the estate of John F. McGrew. No one is suing or being sued as the representative of the estate of a deceased person. This litigation is between appellant and appellee in their own proper persons, and in relation to moneys which, if either obtained, she would acquire as her own property. Therefore we think that the reservation of the statute does not apply, and that appellee was a competent witness in her own behalf.
The chancellor who heard the evidence has found that the affidavit and application upon which the certificate held by appellant was issued, was false in its representations, and that the certificate held by appellant was issued by reason of fraudulent representations made to the grand lodge by John F. McGrew. We can not say that this finding of fact by the learned chancellor is lacking in sufficient support in the evidence, although, as above noted, we do not regard such fact as an essential to the decree. All the findings of fact upon which the decree is based being supported by the evidence, we are of opinion that the decree properly disposed of the rights of the-litigants.
A motion interposed by appellee and reserved to final disposition of the appeal, becomes unimportant by reason of the conclusion reached.
The decree is affirmed.
