Supreme Tribe of Ben Hur v. Gailey, 117 Ark. 145

Supreme Tribe of Ben Hur v. Gailey

117 Ark. 145 | Ark. | 1915

Kirby, J.,

(after stating the facts). It is contended that the issuing by appellant order of the benefit certificate was ultra vires and void, there being no one of any of, the classes designated to whom the benefits could be paid without violation of the by-laws of the organization and the statute granting its charter.

“Where the statute under which a benevolent corporation is organized, and its charter adopted in pursuance to such act, designates certain classes of persons as those for whom the benefit fund is to be accumulated, a person not belonging to either or any such class is not entitled to take the fund. A corporation has no authority to create a fund for other persons than the classes specified in the law, nor can the order direct the fund to be paid to a person outside of such class.” 27 Am. & Eng. Ann. Cas. 868.

There was no attempt here to issue a policy with the benefit payable to any person not belonging to one of the classes specified as entitled to receive it, nor 'direction to pay to one outside of such class.

(1) And although the member may have had no family, blood relatives, heirs or persons dependent upon him, or affianced wife, at the time of the issuance of the policy, a fact which the evidence does not show, he had the right, nevertheless, to take out such policy upon the contingency that there might be one of some of the classes designated entitled to receive the benefit at the time the liability to pay it became fixed upon the death of the member, and the order had authority likewise to issue such policy on such contingency .and its action in doing so was not ultra vires.

There was no beneficiary named in this policy, which was made payable to the legal representatives “bearing the relationship to the member of administrator or executor,” and it is not questioned that plaintiff is the duly qualified administratrix of the estate of said deceased member. It is contended, however, that there is no person living bearing the relationship or belonging to any class who was entitled to become a beneficiary, under the rules of the order, and the law creating it, and therefore that the administrator can not recover upon the policy.

The by-laws provide that when the certificate is payable to the legal representatives, as in this case, the benefit shall be payable to the executor or administrator of the deceased member in trust for such member’s heirs.

Appellant having denied that there is in existence any person of any of the classes to whom the benefit under the policy can be paid, the burden to prove such fact devolved upon it. Longer v. Carter, 102 Ark. 73; Carrier v. Comstock, 108 Ark. 521.

(2) We are of opinion that the burden was not discharged by the evidence introduced' in this cause. It is true the administratrix testified that she had heard the deceased say frequently that if he had any relatives living he did not know them, that he was without a family or affianced wife, and that no relatives visited or wrote to him during the 'time .she knew him. The testimpny discloses, however, that he came from Fulton, Mississippi, an adjoining State, in his boyhood, and was illiterate, and could not write, and that no inquiry was made at the place of his birth, :and where he was known to have lived to ascertain whether he had heirs or blood relatives living. The circumstances shown raise an inference that there were no heirs, family,'blood relatives, or other persons belonging to any of the classes entitled to the payment of the benefit under the policy, but 'the place of deceased’s birth being known, and no inquiry made there, the evidence is not prima facie sufficient to show that there are none such. Carrier v. Comstock, 108 Ark, 522.

Conceding the testimony was sufficient to sustain a verdict or finding that there were none living, bearing such relationship to the deceased member as would entitle them to the benefit under the policy, it is not con-elusive of the fact, and a verdict against the proposition could not be set aside for want of evidence to support it. The finding of the court, each party having asked a directed verdict, is as conclusive as the verdict of a-jury would have been, and requires no more evidence to support it. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71.

The administrator of the estate of the deceased member was entitled to recover the amount of the benefit certificate as trustee of course for the benefit of those entitled thereto under the terms of the policy, the laws of the order and the State creating it, and the court did not err in directing a verdict for appellee. The judgment is affirmed.