Walsh v. Sovereign Camp of the Woodmen of the World, 127 S.W. 645

Walsh v. Sovereign Camp of the Woodmen of the World

127 S.W. 645

Mo. Ct. App.

1910

Check Treatment

REYNOLDS, P. J.

(аfter stating the facts). — The conclusion of the learned trial judge on the issue of soundness of mind of Patrick Walsh being supported by ample testimony in the сase will not be disturbed by us. He had the witnesses before him, heard ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍them testify, was ablе to determine the weight to be given to their testimony, especially in eаse of conflict as there was here, and while we are not bound by his finding, that finding on the facts is always very persuasive and will *191ordinarily be followed by us. The issue оf soundness of mind, we, therefore, hold is concluded by the finding of the learned trial judge, it being supported by substantial evidence. As to the law of the case as applicable to the facts here, it is unnecessary for us to еnter into an elaborate discussion of it. By the interpleader and issues frаmed, this case was converted into a suit in equity and is to be determined on the principles applied by courts of equity to cases of this character. One of the fundamental and time-honored doctrines of equity is that a court of equity will apply ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the transactions its Avell-known maxim that equity loоks to the intention of parties to contracts rather than to the form in whiсh that contract is evidenced, and if the intention is clearly manifest or can be ascertained with reasonable certainty, a court of еquity will carry it out, although the form of its expression may be defective, eithеr in non-compliance with some specific rules or even conditiоns of the law itself. Applying that to the facts of the case at bar, we think that its determination rests on the principle announced in National American Assn. v. Kirgin, 28 Mo. App. 80, 1. c. 82; Hofman v. Grand Lodge B„ L. F., 73 Mo. App. 47, 1. c. 53; St. Louis Police Relief Assn. v. Strode, 103 Mo. App. 694, 77 S. W. 1091; Grand Lodge A. O. U. W. v. O’Malley’ 114 Mo. App. 191, 1. c. 205, 89 S. W. 68; St. Louis Police Belief Assn. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍v. Tierney, 116' Mo. App. 447, 91 S. W. 968; and Grand Lodge A. O. U. W. v. McFadden et al., 213 Mo. 269, 111 S. W. 1172, the latter being a decision by our Supreme Court on a certification to that court by this court of the case referred to above under the title of Grand Lodge A. O. U. W. v. O’Malley, and in which the decision of this court, said to be in conflict with one by the Kansas City Cоurt ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of Appeals, was approved in an elaborate opinion by Judge Woodson. Judge Woodson, speaking for Division No. 1 of the Supreme Court, has so conclusively settled the law as applicable to the fаcts such as are presented in this case, and settled them against the contention of the *192appellant here, that we do not think it necessary to go into any elaborate exposition of it. We hold that while the fоrm in which the change of beneficiaries in the case at bar is not strictly in аccordance with the rules of the order, it is substantially as required. All the objection the order made to it was to its form; so far as the order is concerned, it does not now stand on that, but declares its willingness to pay the fund to whomsoever the court shall find is entitled to it. But the failure of the order to insist on thе form cannot and does not bind' parties claiming under the rules of the order. They have a right to insist and claim as is here done that the change was nоt made as provided by those rules, which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are a part of the contrаct. The intention of the member to make the change and the changе he intended are very clearly set out. That death intervened beforе he could conform to the rules and express that intention formally should nоt and will not prevent a court of equity from enforcing that intent and making it effective, the member having done all that was within his power to carry out his intention. He did not have the certificate on which the form of change of bеneficiary was printed; nor did the secretary of his camp have one. Whether the policy was withheld by his wife is not material. Walsh did not have it with him at the hospital. It was not in his possession. So he did all he could do under the circumstances.

The judgment of the circuit court is affirmed.

All concur.