68 S.W. 501 | Tex. | 1902
The Court of Civil Appeals of the First Supreme Judicial District has certified to this court the following statement and question:
"This suit was brought by R.W. Whitridge, as guardian of Victor Albertson, a minor, to recover of the Screwmen's Benevolent Association the sum of $275 as a death benefit, evidenced by a certificate issued to his deceased father, and in which his deceased mother was named as beneficiary.
"The sole defense urged by the association is that as it was not shown that the mother, the named beneficiary, survived the member, and as the certificate and laws of the order provided for payment to the person named, and no other, and as no other beneficiary was named upon the death of the first, the benefit lapsed to the order.
"The cause was tried by the court without a jury and resulted in a judgment for plaintiff for the sum sued for. The cause is pending in this court on the appeal of the association.
"The findings of fact prepared and filed by the trial court, and which we adopt, are as follows:
"`R.W. Whitridge was regularly appointed guardian by the County Court of Galveston County, Texas, of the person and estate of Victor Albertson, a minor, and duly qualified as such; and of the minor's estate the property consisted in part of a mortuary benefit certificate in the sum of $275, issued by the defendant association to Emil Albertson, the father of said minor, by the terms of which certificate said association agreed that it would pay to Mrs. Emil Albertson, the wife of Emil Albertson, out of the mortuary benefit fund, the sum of $275, thirty days after satisfactory proofs of the death of said Emil Albertson; provided at the time of his death he should be in good standing and no charge be preferred against him in said association within thirty days; and other conditions, as shown in the certificate, not thought necessary to recite herein. By order of the county court the said guardian was authorized to bring suit against said defendant association. Defendant association's objects and purposes are purely charitable and benevolent.
"`The mortuary benefit certificate was dated June 26, 1891, and regularly executed by the association and delivered to the father of said minor, and was in his possession when he and his wife perished in the *543 great storm in the city of Galveston, September 8, 1900, and there was no evidence as to who died first, Emil Albertson or his wife.
"`That at the time of the issuance of said certificate and the death of said Emil Albertson, he was a member in good standing in the defendant association, having paid all dues and assessments of said association for which he was liable, and was not guilty of any violation of the rules and regulations of said association. That the minor, Victor Albertson, is the only surviving child of Emil Albertson and his wife, the beneficiary named in the mortuary benefit certificate, and that his father and mother both died intestate and no administration has been taken out in their estate, or either of them, and no necessity exists therefor.
"`Proofs of death of Emil Albertson were made by plaintiff to defendant association more than thirty days prior to filing this suit, and no objections were made thereto, and defendant association refused to pay the amount of said mortuary benefit certificate to plaintiff.
"`Emil Albertson, as a member of said association, had the right under the by-laws of the association to change the beneficiary named in the mortuary benefit certificate, upon payment of a fee charged therefor. The by-laws do not provide that the certificate shall revert to the association upon failure of the beneficiary named therein, or for other reasons.'
"The certificate in question is as follows:
"`No. _____. $_____
"`In faith whereof, signature is hereto made by said Screwmen's Benevolent Association, through its officers, with said Emil Albertson, who accepts hereof under the above conditions, in the presence of the subscribing witnesses, at Galveston, this 26th day of June, A.D. 1891.
(Signed.)'"
"On the back of the certificate were printed blanks for cancellation and reissuance to a new beneficiary, and for surrender upon payment thereof by the association.
"The mortuary or endowment fund was created by the collection from members of certain fees for issuance of certificate and change of beneficiaries, and assessments upon the death of members, etc., the fee required for issuance and reissuance of certificate being 50 cents, and the fee to be paid on death of member in good standing being 75 cents, and upon death of member not in good standing being 25 cents.
"Section 14 of article 16 of the constitution of the order provides that `Thirty days after satisfactory proof of the death of a member in good financial standing and entitled to all the benefits in the association there shall be paid out of the endowment fund $275 to the beneficiaries named in the mortuary benefit certificate of such deceased member.'
"Neither the constitution nor the by-laws of the order restricted the named beneficiaries to any particular class. The member could designate whom he pleased. Nor does it appear from the record in any way that the family or relatives of a member were necessarily the objects of its bounty. The record does not show more specifically than as above stated the general nature, powers, and purposes of the association.
"We respectfully certify for your decision the following question:
"Under the facts stated, did the trial court err in holding that the benefit did not lapse to the association, but should be adjudged to plaintiff's ward?"
The trial court erred in holding that plaintiff's ward had the right to recover from the Screwmen's Benevolent Association the sum named in the benefit certificate sued upon.
By the terms of the certificate, the money was payable to Mrs. Albertson if she should survive Emil Albertson. There is no provision in the contract that in case of her death before that of the member any other person should have the right to receive the money; but, by the terms of the contract, in order to substitute another for her, it is required that the certificate should be surrendered and a new one issued. There is no provision in the by-laws or constitution of the association which gives a right to any other person upon the death of the beneficiary named in the certificate. In order for the minor plaintiff to recover, it was necessary to prove that his mother survived his father, for under the terms of this contract, when the named beneficiary died the contract itself lapsed, *545 with the right in the member, if living, to name another person to receive a new certificate. There was no proof that the mother survived the father.
We are referred to Bacon's Benefit Societies, volume 1, section 243a, in support of the judgment of the court. The language of the author is broad, but an examination of the authorities to which he refers will show that in all of the cases referred to there was a provision in the bylaws, constitution, or the contract itself which the court construed to give the right to the heir in case of death of the beneficiary named. See Haskins v. Kendall,
