134 Ill. App. 155 | Ill. App. Ct. | 1907
delivered the opinion of the court.
Many questions are discussed in appellants’ brief and argument which, in the view we take of the case, it is unnecessary for us to consider or determine. The main position of appellants is that the contract made by them with Pisa was a valid contract and that it. was substantially performed by them; that the consideration paid by them was of such a character that it was necessarily paid and accepted as time'elapsed. It could not be tendered back, and in such case equity will not forfeit the amount of the consideration paid, when inevitable necessity caused a temporary suspension of the services being rendered.
This contention, however, as to the validity of the contract for board and lodging, and the consideration which the performance of it affords, does not appear to us to be material for the reason that all that appellants claim in that regard may be conceded, and still it would not follow that appellants acquired any right to have the certificate designating them as beneficiaries maintained, or that Pisa could not at any time thereafter make a new designation of another proper beneficiary under the laws of the order and the statute. Nor would it follow that appellants at any time acquired a lien upon the certificate or the fund payable under it on the death of Pisa.
As said in Kirkpatrick v. Modern Woodmen of America, 103 Ill. App. 468-473: “A benefit certificate in a society of this character differs from an ordinary policy of life insurance in that it speaks with reference to the conditions existing at the time of the death of the member whose life has been insured by it. A beneficiary named in a certificate of a fraternal benefit society, organized under the statutes of the State of Illinois or like statutes of other states, has no vested interest in such certificate or ifi the fund provided for its payment, until the decease of the member whose death matures the certificate. The constitution and by-laws of the society and the statutes of the state must be construed with reference not only to the terms of the certificate, but the status of the parties existing at the date of the death. Delaney v. Delaney, 175 Ill. 187; Voigt v. Kersten, 164 Ill. 314; Baldwin v. Begley, 185 Ill. 180; Order of Railway Conductors v. Koster, 55 Mo. App. 186; Union Mutual Ass’n v. Montgomery, 70 Mich. 587; Tyler v. Odd Fellows Mutual Relief Ass’n, 145 Mass. 134.”
Josef Pisa became a member of the appellee society on February 9, 1895. In November, 1900, the certificate was revoked and a new certificate was issued, designating appellants as beneficiaries. June 15,1905, Josef Pisa caused a third certificate to be issued, designating appellee Josefina Pisa as beneficiary.
On June 22, 1893, a statute relating to and governing the class of societies to which complainant belongs went into force in this state, whereby it was provided that “payment of death benefits shall only be made to the families, heirs, blood relations, affianced husband or affianced wife, of or to persons dependent upon the member, and such benefits shall not be willed, assigned or otherwise transferred to any other person.” Hurd’s Revised Statutes of 1893, chap. 73, sec. 258. But it cannot be claimed with reason that there is anything in the above statute that prevented Pisa from appointing another beneficiary in the place of appellants. Our attention has been called to no bylaw of the society or provision of the contract with the society which prohibited a change of beneficiary at any time. The restrictions in the above cited statute are that benefits shall not be willed or transferred and that when a beneficiary is designated it must be one who is included within the terms of the statute. It is not claimed that appellee Josefina Pisa is not a person within its terms. She was the beneficiary at the date of death of Josef Pisa, and therefore must be considered as entitled to the fund in question by the terms of the certificate.
But it is urged that the new certificate was procured without the consent of appellants, and without a surrender of the old certificate. This, we think, is likewise immaterial. It is said in Niblack on Benefit Societies & Accident Ins. (2nd ed.), sec. 222: “A member and the society may during the life of the member, waive these requirements, and may agree upon a new beneficiary of the contract in any manner satisfactory to both parties.” To the same effect is 1 Bacon on Benefit Societies & Life Ins., sec. 308; Splawn v. Chew, 60 Texas, 532; Martin v. Stubbins, 126 Ill. 387; Delaney v. Delaney, supra; Nat’l Aid Society v. Lupold, 101 Pa. St. 111.
In Delaney v. Delaney, supra, it is said: “It would seem to follow, as a necessary corollary from the doctrine that the certificate is a contract between the society and the member, and not between the member and the beneficiary, that the society and the member can modify or change their contract in any way satisfactory to themselves. An expectancy, which is the only interest held by the beneficiary prior to the death of the member, is not property, and therefore a change of the contract made by the society and the member together could not injure or affect in any way a property interest of the beneficiary.”
We hold, therefore, that if the contract set up by appellants be admitted, and if its substantial performance by appellants be conceded, appellants thereby acquired no equitable or legal right to the certificate designating them as beneficiaries, or the fund from which it would be paid upon the death of Pisa. Appellants were not parties to any contract with the society. During the life of the certificate for their benefit they had only an expectancy, which is not property. Upon the change of the certificate made on June 15, 1905, and from that date to the death of Pisa, appellants did not even have an expectancy in the fund in question. Creditors of Pisa they may have been, but that question is foreign to the issue here, and we do not pass upon it, but they show no equitable or legal right to the fund in court, and have no just complaint against the decree.
The decree of the Superior Court is affirmed.
Affirmed.
