96 Neb. 545 | Neb. | 1914
Lead Opinion
Defendant is a fraternal beneficiary society. As such it issued a certificate of membership to one John M. Maask, whom we will designate-as the assured. In the certificate the mother of the assured was named as beneficiary. The certificate provided that, in case of the mother’s death before that of the assured, the certificate should be payable to the assured’s legal heirs. The mother predeceased the assured. Upon the subsequent death of the assured, plaintiff was appointed administrator of his estate, and as such brought this action in the district court for Dodge county to recover upon such certificate. From a judgment in his favor, defendant appeals.
Plaintiff in his petition recites that he “brings this action to recover said sum of $1,000 for the use and benefit of the legal heirs of said John M. Maask, deceased.” The petition also alleges the facts above set out, and further alleges that, “under the terms of said certificate, the said sum of $1,000 is now due and payable to the legal heirs of said John M. Maask.” This allegation, alone, is sufficient to defeat plaintiff’s right to maintain the action. The plaintiff is not a legal heir of the assured, but is the administrator of his estate. As administrator he has absolutely no interest in the membership certificate upon which the action is based. It is not an" asset of the estate of John M. Maask, deceased. No part of it can be applied to the payment of his debts or to the costs of administration of his estate. The administrator is a stranger to this certificate, and has no more right to maintain an action upon it than if Mrs. Fringel, the mother of the assured and the beneficiary named in the certificate, were still living. If she were living and were neglecting to take steps to collect the certificate, that would be none of the administrator’s cóncefin. She being dead, and the certificate being payable to the legal heirs of Mr. Maask, instead of to her,
•>It is conceded by defendant that it should pay the amount of the certificate to some one, but it insists that it should only be required to make payment to the actual beneficiaries. The evidence shows that the plaintiff, after the death of the assured, gave defendant the notices and proofs of death required by the by-laws of the association. While plaintiff, as administrator, cannot maintain the present action, the heirs for whom he assumed to act may ratify his acts in giving defendant notice and furnishing it proofs of death, as required by the by-laws, on the theory that in giving those notices and furnishing the proofs of death plaintiff was acting as the agent of the heirs for that purpose. The fact that at the time of so acting he may have been a self-constituted agent does not prevent their ratifying his unauthorized act. 31 Cyc. 1246, and note 92, also page 1283, and note 38; Mechem, Law of Agency, secs. 124, 128.
The judgment is therefore reversed and the cause remanded to the district court, with directions to permit the substitution of the real parties in interest, if they so move within a reasonable time to be fixed by the court, as plaintiffs, as of the date of the commencement in that court of the present action, and for further proceedings according to law.
Reversed.
Dissenting Opinion
dissenting.
It seems to me that the opinion of the majority Is somewhat inconsistent in holding that the administrator had
In the syllabus of the majority opinion it is said: “Where one within the class designated, who was named as beneficiary in the certificate of membership in suit, died before the member, such certificate thereby became payable to the legal surviving heirs of such member. And upon the death of such member his certificate of membership did not become an asset of his estate, nor in any manner liable for the payment of his debts.” This is stated as the reason that the administrator cannot maintain the action for the benefit of the heirs.
This court undertook to state the rule for determining in whose name the action should be brought, in these words: “The right of recovery (by the administrator) under the enactment to which we have just alluded would arise alone from the party standing in such relationship .to the deceased as to be entitled to his estate, or a share of
I think that the plaintiff did right in bringing this action. The decedent had invested his money in this certificate, and was interested in preserving its validity. His administrator represents him; the certificate was found among the assets of the decedent, and so came into the plaintiff’s care as a part of 'the estate. There were known to be heirs, but it was not known where they were. The administrator should take such steps as were necessary to preserve the validity of the certificate and the investments made by his decedent, and both himself and the sureties on his official bond would be liable for his neglect, if he failed so to do. They would also be liable for the proper disposition of the funds if collected by such suit. Modern law does not require us to enforce an immaterial technicality, thereby causing a great loss to innocent parties. The substitution of one plaintiff for another, who never had any interest in the litigation, after reversal upon appeal, and at the costs of the defendant, is something new, and is a radical departure from the ordinary practice.