65 So. 348 | Ala. | 1914
-Under the regulations and bylaws of the Masonic Lodge, which brings this- fund into court for the benefit of the person lawfuly entitled to receive it, Jacob Slaughter, the deceased member, was authorized to designate the beneficiary of the endowment to be paid at his death.
The provisions directly pertinent are:
“(a) Every endowment member should execute and deposit with the secretary of his lodge an endowment certificate showing the disposition he desires made of his endowment, which certificate shall be respected after death as his last will and testament.”
“(b) In the absence of such certificate the endowment must be paid to the widow and orphans or legal heirs subject to the endowment provisions.”
The certificate itself recites that “this certificate may be changed by signer from time to time.” There are no specific provisions here as to the mode by which this change is to be effected. But it seems perfectly clear, by necessary implication, that it must be done by the member either by filing a new certificate, or by indorsing the
It is true that courts of equity have in some cases given effect to attempted but unperfected changes of beneficiaries by association members, but in doing so they have proceeded with great caution.
.“The rule, that the parties must comply with the laws of the society in order to effect a change of beneficiary is subject to three exceptions, namely: (1) Where the society has waived compliance with its regulations or estopped itself to assert noncompliance therewith; (2) where it is beyond the power of the member to comply literally with the regulations, as where the rules require a surrender of the original certificate, and it is impossible for the member to surrender it; and (3) where the member has done all that he is required to do, and only formal ministerial acts on the part of the society remain to be done in order to complete the change, and the member dies before performance thereof.”—29 Cyc. 133b.
This text is well supported by the following, among other, authorities: Grand Lodge, etc. v. Noll, 9 Mich. 37,
While several of appellant’s witnesses testify to statements by the deceased member of his wish to make appellant the beneficiary of this endowment only one witness testifies that he expressed that wish to an officer of the lodge. Accepting as true the testimony of this witness (Luke Pope), it is clear that the deceased member never made such an attempt to change the certificate as would authorize a court of equity to treat the change as accomplished.
Moreover, Pope’s testimony in this regard is radically contradicted by another of appellant’s witnesses (O’Reilly), who was present on the occasion specified; and the whole statement is denied by Alford, the Worshipful Master of the local lodge, to whom Pope asserted the deceased had expressed his wish to have the certificate changed.
Of course hearsay statements of the deceased that he had told Alford to make the change are not competent evidence, and must be rejected.
On the whole evidence, which is confused and conflicting, we are not reasonably convinced that the deceased requested Alford to make the change, and on either view of the case we cannot ascribe error to the finding and decree of the chancery court.
The decree will be affirmed.
Affirmed.