Supreme Tent, Knights of the Maccabees of the World v. Altmann, 134 Mo. App. 363

Supreme Tent, Knights of the Maccabees of the World v. Altmann

134 Mo. App. 363 | Mo. Ct. App. | 1908

BLAND, P. J.

1. The right of the holder of a benefit certificate of insurance, issued by a fraternal, beneficiary association, to designate a new beneficiary is not only provided for by the by-laws of the Maccabees but is secured by section 1417, Revised Statutes 1899. The provisions of this section renders nugatory the fact that Anna Altmann had the certificate in her possession and paid the dues thereon. Having- no vested interest in the certificate, the payment of the dues by her gave her no right or equity as beneficiary, therefore, it is of no influence in the proper determination of the rights of the interpleaders for the fund that she paid the assessments and dues to the association. Altmann, the insured, had the right, under the laws of 1904, of the association, to change his beneficiary from his wife to' his mother, provided section 517, laws of 1901, was not in force at the time he made the application for the change, for if this section was in force, it prohibited him from making the change and his attempt to do so was ineffectual. Section 517, Laws of 1901, as- above-stated, was not carried over into the code of 1904, therefore, the question in the case is whether or not section 517, of the code of 1901, was repealed by section 569, of the code of 1904. Re*371peals by implication are never favored, and the general clause repealing all inconsistent acts or parts of acts extends only to those acts on the same subject and repeals only such of them as are inconsistent with it, that is, such acts as the legislative body manifestly intended to repeal. Section 359, providing that a change of beneficiary may be made by a member, is general and grants the right without exception or restriction. This section appears in identically the same form in both the codes of 1901 and 1904. Section 517, code of 1901, restricts the right of designating a new beneficiary, when a wife or child is the beneficiary named, and might have been appended to section 359 as a proviso or exception, for its effect is to restrict the general power granted by this section, when a wife or child is designated as beneficiary in the certificate sought to be changed, and we have no doubt that the legislative body of the association intended to do away with this restriction when it adopted the code of 1904. We think section 517 is inconsistent with section 359, for the reason the latter section confers an unqualified power on the member to change his beneficiary. If section 517 is not repealed then the unrestricted power conferred by section 359 becomes, not Avhat the section enacts, an unqualified power, but a power to which there is a very material exception.

2. Being possessed of the power, did Altmann exercise it in the manner required by the by-laws of the order, is the next and final question to be answered. The laws of the association prescribed no particular form of application to be made by a member wishing to change his beneficiary. He is required by the bylaws to surrender his old certificate and make a written request for the change. Section 361 provides, in substance, that when the certificate is lost or in the possession of the beneficiary, or any other person who refuses to deliver it to the member, the member shall *372make an affidavit setting forth the facts. The certificate was in the possession of Altmann’s wife and he made the affidavit in compliance with the requirements of section 361, and otherwise complied with the laws in respect to the designation of a npw beneficiary. Section 362 provides that the change of beneficiary shall take effect upon the delivery to the record keeper of a tent the life benefit certificate, or proof of the loss of the certificate, with the written request for a change thereof. All this was done. This section is an affirmance of the well-settled doctrine in such cases, namely, that when a change of beneficiary is permitted by the laws of the association and the member does all he can to comply with the requirements of the laws, equity will carry out his intentions and deem that done which should have been done and award the fund to the new beneficiary, though the association for any reason failed, neglected or refused to issue the new certificate. [Paul v. Draper, 73 Mo. App. 567; National American Assn. v. Kirgin, 26 Mo. App. 80; Grand Lodge A. O. U. W. v. O’Malley, 114 Mo. App. l. c. 205.] Anna Altmann testified that she was never requested to surrender the certificate to her husband, or any one else,- and it is contended that this evidence shows Gustav Altmann did not comply with the laws of the association in his effort to have a new certificate issued. The certificate was not in his possession and it is a fair inference, from the evidence, that his wife would not have surrendered it to him had he requested her to do so, and we think he substantially complied Avith section 361, in making his request for a new certificate. We think under all the evidence and on the undisputed evidence, Antonia Emmerich, the mother of Gustav Alt-mann, is entitled to the fund. Wherefore the judgment is reversed and the cause remanded with directions to the circuit court to enter its decree awarding the fund to Antonia Emmerich.

All concur.