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to thus dispose of the benefit under the orig. preme Lodge in 1892 to issue the certificate inal certificate, but it is admitted that of insurance to James Williams, payable to Gibbs, the recipient of the bounty as desig- his representative or representatives, for such nated in the will, was not a member of the is a proper insurance contract not within family of the insured, nor related to him the influence of the fraternal beneficiary statby blood or otherwise, nor dependent upon ute. Therefore, if the contract was valid him in any manner, and is therefore not when made, it continued so, and it was comwithin the class of persons authorized to petent for the insured to dispose of its benetake such benefits under our statute. As fits as he saw fit by his last will; that is, before stated, the suit proceeds against both direct the payment to an entire stranger. It the Supreme Lodge, incorporated in the may be conceded that the contract when made District of Columbia, which originally issued was valid and enforceable; but, for the arguthe certificate, and the Grand Lodge, incorpo- ment to prevail here, it must have continued rated in Missouri, as if it assumed its pay- identical in its terms with respect to the desment. Though both defendants were duly ignation of a competent beneficiary. served, the Supreme Lodge did not appear,

[1] No one can doubt, for it is the general but suffered judgment to go against it by de- rule, that a policy of life insurance or a fault, and the Grand Lodge who prosecutes designation of beneficiary, valid in its incepthis appeal defends alone on the ground that tion, remains so although the insurable init is not competent for the personal repre, terest, or relationship of the beneficiary, has sentative to recover on such certificate, and ceased, but the rule obtains only in those especially when the recovery is sought in be

cases where it is not otherwise stipulated in half of a beneficiary not authorized under

the contract. See Bacon, Benefit Societies the Missouri statute. We are not concerned with the powers of Co. v. Schaefer, 94 U. S. 457, 24 L. Ed. 251;

(3d Ed.) $253; Connecticut Mut. Life Ins. the Supreme Lodge which originally issued McKee v. Phænix Life Ins. Co., 28 Mo. 383, the certificate of insurance under its charter

75 Am. Dec. 129. in the District of Columbia, and indeed, as to that matter, the court is wholly unadvis

[2] That a contract as originally made ed, for nothing was given in evidence touch- terms by the parties to it, and that there

may be subsequently modified as to material ing it except that it was a fraternal insur- after the rights flowing from it are to be deance society. But the statute of this state under which the Grand Lodge Knights of modified contract, is not open to question.

termined and enforced in accordance with the Pythias of Missouri was incorporated in 1893, and which conferred all of the charter See Lanitz v. King, 93 Mo. 513, 6 S. W. 263.

Though the contract here involved originally powers of that institution, authorized it to issue certificates only to provide for the re

authorized the payment of the insurance lief and aid of its members and their fami.

vouchsafed to the personal representative or lies, widows, orphans, or other kindred de representatives of the insured and probably pendents. See section 2823, R. S. 1889. Ob- left him free to dispose of it by will as he viously this statute contemplates that such saw fit, it appears that it was materially societies should accumulate a fund to be modified in respect of this matter in 1893, awarded as the bounty of the insured mem- when, with the insured's consent, defendant ber as above suggested, and not to one, as Grand Lodge of Missouri became a party to

it. here, who is not a member of the family of

Even under the rule of the Kern and the insured, nor related to him by blood or Toomey Cases, above cited, it cannot be sucotherwise, nor in any manner dependent up- cessfully maintained that the Supreme Lodge on him,

was an ordinary insurance company so as to But, though such be true, it is argued for preclude it when co-operating with the insurplaintiff that as the Supreme Lodge, which ed in organizing the Grand Lodge under the issued the certificate, omitted to avail itself Missouri statute from bringing the certificate of the privilege of becoming a fraternal ben- of insurance to which it was a party within eficiary association in this state through the purview of the charter of the Missouri qualifying and receiving a license as such Grand Lodge—that is, our fraternal insurunder the statutes of Missouri, it must be re- ance statute-for obviously both the Supreme garded as an insurance company and the Lodge and the Grand Lodge with which the certificate so issued as a policy of life insur- insured voluntarily affiliated were fraternal ance in the broad sense of that term, wholly in character. The certificate itself and other unrestrained by the provisions of our statute revelations in the record touching their conon fraternal beneficiary societies. The prop-stitution and by-laws reveal this to be true ositions thus asserted are declared, but for beyond question. Therefore, whatever may another purpose, in the cases of Kern v. be the rule of those cases as to whether the Legion of Honor, 167 Mo. 471, 67 S. W. 252, certificates issued by unlicensed foreign fraToomey v. Sup. Lodge K. of P., 74 Mo. App. ternal societies, circumstanced as the Su507; s. C., 147 Mo. 129, 48 S. W. 936. In view preme Lodge are to bear or escape the bur. of the doctrine of these cases, it is said to dens of our general insurance laws, the char

reference to the substance rather than to of accumulating a fund under its Missouri sheer technical rules. To this extent the charter to effectuate the contracts of the doctrine of those cases has surely been mod- Supreme Lodge then retiring from the state. ified. See Westerman v. Sup. Lodge K. of The original contract was necessarily thereP., 196 Mo. 670, 94 S. W. 470, 5 L. R. A. by modified with respect to the right of the (N. S.) 1114; Schmidt v. Sup. Court Forest- insured to designate a beneficiary to take ers, 228 Mo. 675, 706 et seq., 129 S. W. 653. the fund who was competent to receive it This being true, it appears that the arrange- under the Missouri charter, for the Missouri ment between the Supreme Lodge and the in- Grand Lodge could accumulate a fund only sured, one of its members, along with others, in accordance therewith and for the purposes was to the effect that the Grand Lodge therein set forth. should be organized in Missouri under the [4] By its charter (section 2823, R. S. 1889) Missouri Statutes, that the Grand Lodge in the Missouri Grand Lodge was empowered to Missouri should assume complete jurisdic- provide for the relief and aid of its members tion over Mound City Lodge No. 4 of which and their families, widows, orphans, or other the insured was a member, and should as- kindred dependents of deceased members. sume the obligation of fulfilling the office of While this statute does not expressly forbid the Supreme Lodge toward the insured as a the issuance of the certificate payable to the member of the order and a certificate holder personal representative of the insured, it does therein.

so by implication, and it is clear that it does [3] Obviously the abstract rule relied up- not authorize the designation of a stranger, on is without influence, for the whole matter in no way related by blood or marriage or in was one of contract between the parties as any manner dependent upon the member as is always true with respect to the relations beneficiary. See Bacon (30 Ed.) 8 255; Grand of such fraternal societies and their mem- Lodge v. Elsner, 26 Mo. App. 108. Although bers, including, too, their insurance certir- the certificate as originally issued by the Suicates which are ever subject to the charter preme Lodge authorized payment to be made powers and constitution and by-laws of the to the personal representative of the insured, order when expressly agreed to. See Mason- and even though the insured might bequeath ic Ben. Ass'n v. Bunch, 109 Mo. 560, 19 s. and direct his personal representative to pay W. 25; Lewine v. Sup. Lodge K. of P., 122 it to a stranger, such was not allowable on Mo. App. 547, 99 S. W. 821. Touching this and after the modification of the contract matter, it appears that the Supreme Lodge through the arrangement, whereby, with inwhich issued the certificate, but had never sured's consent, he became a member of a qualified in this state, withdrew entirely subordinate lodge under, and accepted the obfrom the field, and committed the whole ligation of, the Missouri Grand Lodge inmatter of its business to the Grand Lodge stead. Obviously this proceeding interposed organized in Missouri under our statute the limitations of the charter of the Missouri The insured and all of the members consent company into the new contract as if an exed to this arrangement and became affiliated press provision to that effect obtained and with the Grand Lodge of Missouri under its operated to curtail the former right of desigMissouri charter which undertook to employ the fund to the persons declared competent

nating the beneficiary and his disposition of its powers in effectuating the certificate of

to take by the provisions of our statute. Bainsurance and fulfilling the office of the Supreme Lodge as to the social side of the con, Benefit Societies (3d Ed.) $ 253. order. It is true the insured omitted to sur first speak with authority as to vested rights

[5] But, because these benefit certificates render his old certificate and to apply for a

on the death of the insured member, they are new one from the Missouri Grand Lodge, said to be and are viewed as testamentary in but, be this as it may, he agreed to the ar: character, for until then a new beneficiary rangement whereby the Missouri Grand

may be designated by the insured at any Lodge was to utilize its powers in executing time to receive the bounty, similar to the the contract of the Supreme Lodge, and it is right of a testator in his last will, excepting only by maintaining that such was consum- only that the beneficiary must be a compemated the suit can be sustained at all tent person within the charter provisions of against the Missouri Grand Lodge on the the society. Masonic Ben. Ass'n v. Bunch, certificate issued by the Supreme Lodge. 109 Mo. 560, 580, 19 S. W. 25; Order Ry. Obviously this certificate must be taken and Conductors v. Koster, 55 Mo. App. 186. In enforced cum

There is no special view of this, we must look as well to the contract of assumption as such in the case, statute in force at the time of the insured's nor was any ever delivered to the members death touching the same matter. By referor annexed to the certificates. The right as- ence to that statute (section 7109, R. S. 1909) serted here against the Missouri Grand it appears the plaintiff here is not qualified Lodge arises solely from the arrangement to take the benefit thereunder; for, while whereby it came into being with the consent the class has been enlarged so as to authorof the insured and of the Supreme Lodge ize a beneficiary who is an affianced wife or and through their co-operation for the purpose husband of and one merely dependent upon

onere.

the member, no provision for one situate as | Am. Patriots, 162 Mo. App. 231, 144 6. W. this plaintiff is made.

1117; Sargent v. Knights of Honor, 158 Mass. [6] Of course, if the insured could not 557, 33 N. E. 650. When a fund such as this make a valid designation of the plaintiff di- is sought to be diverted from its proper purrectly as his beneficiary in the certificate so pose by will and the suit is by the executor, as to enable him to take the fund, it would it is the duty of the court, if it appears the not be competent for him to do so indirectly contract has been fully executed on the one as by will; for it is against the policy of the part, to enforce the payment and direct its law because it infringes the principle of be- course to the proper recipient who is qualinevolence involved to permit the funds of fied as such under the charter. We say this these societies to be diverted to others than because it is the purpose and the spirit of those contemplated in the statute authoriz- the law to award the bounties accumulated ing their existence. Am. Legion of Honor v. under benefit certificates to the persons for Perry, 140 Mass. 580, 5 N. E. 634.

whom it is designed in the charter the fund [7] But it appears that the insured paid should be accumulated, and for the further all of his dues and assessments and fully reason that the executor under the will, or complied with all requirements on his part. the administrator of the insured, when the In such circumstances, it would be highly un- certificate so provides, is a proper party to just to acquit the defendant of responsibility prosecute the suit as his representative. to the plaintiff executor on the certificate for [8] But both from the obvious intent and the mere reason that he, as the sole legatee spirit of the statute and an express provision under the will, is not competent to receive the to that effect the benefit is free to the use of benefit, provided the fund may be directed in the parties designated and from attachment its proper course to those truly entitled. In re- and execution or other claims of the credispect of this question, the case is to be view- tors of decedent. Section 7120, R. S. 1909; ed in charity, for it is not one of an immoral Beall v. Graham, 125 Mo. App. 38, 102 S. W. or illegal contract, in that the contract is ex- 636. This being true, plaintiff executor is enpressly denounced or inhibited by the law, titled to recover, but not to his own use as but rather it presents the features only, when legatee under the will, nor to the use of the we look to the certificate alone, of an unlim- estate of the insured, for the fund is not techited authorization with respect to the desig- nically and strictly an asset of the estate of nation of a beneficiary; that is, the certifi- the insured, but rather special to the use cate is payable to the personal representa contemplated in the charter. Grand Lodge v. tive, and this would seem to imply that the Dister, 77 Mo. App. 608; Bishop v. Grand fund should go into the corpus of the estate Lodge E. O. of M. A., 112 N. Y. 627, 20 N. E. of the deceased or might be disposed of by 562. The recovery must, therefore, be had in will as the insured sought to do. Touching trust to the use of those for whom the benethis matter alone, the contract may be re- it was accumulated under the charter, and garded as ultra vires, for it is valid in every to whom it should be paid in accordance with other respect. Bacon, Benefit Societies (3d the by-laws of the order when no proper desEd.) $ 265; Shea v. Mass. Ben. Ass'n, 160 ignation of a beneficiary has been made. Mass. 289, 35 N. E. 855, 39 Am. St. Rep. 475. [9] As a rule, the administrator and exThis being true, it is to be said, whatever ecutor, of course, represent the decedent genmay have been the prior course of decision erally, and when he recovers in that capacion the subject the later and better authority recovers to the use of the estate and as ties all go to the effect that when the con- available to all persons who have just claims tract has been fully executed, as here, on the against it. Because of this, it seems anomone part by the payment of all assessments alous to permit a recovery by him in an acand dues and the death of the insured, the tion at law as in trust for a special use not society will not be allowed to successfully as- available to the estate and the ral claims sert in defense that the designation in the of creditors. However this may be, by our beneficiary certificate was one of a class of statute (section 7120, R. S. 1909) the fund is persons not included in the enumeration in relieved of all liability for the debt of either the charter of those for whom benefits are to the certificate holder or the beneficiary nambe provided. See Bacon, Benefit Societies (3d ed therein or of any other person who may Ed.) § 265. We adverted to this doctrine in have a right thereunder, and in view of this Armstrong v. Modern Brotherhood, 132 Mo. the courts seem to have modified this genApp. 171, 180, 112 8. W. 24, but predicated eral rule to the end of effectuating the manthe judgment of the court on other grounds ifest purpose of the benevolent statutes. The there. However, in the instant case, the pre- thought is that this statute qualifies the right cepts of natural justice invoke the full meas- of the decedent. Therefore, this court on a ure of the rule, for there can be no question prior occasion authorized a recovery by the as to its relevancy. That it is both sound administrator of the beneficiary in the cerand just in its proper application seems to be tificate, who died after the decease of the inuniversally conceded. For authorities in sured member, her husband, and before the point, see Benefit Ass'n v. Blue, 120 Ill. 121, certificate was paid, as in trust for her heirs

her estate. However that case was one in ( of America (Sup.) 149 S. W. 459, has, as I equity, and was, therefore, of course, within understand it, distinctly approved of this a jurisdiction possessing complete powers as view. With this interpretation of the term to trusts. But, though such be true, the "legal representative," and the certificate here principle it reflects is identical in so far as made payable to the "legal representative the present question is concerned, for it or representatives” of the member, when the essentially curtailed the powers of the ad- change was made in the organization of this ministrator as to a general recovery in vir- association and its contracts were taken over tue of his office. Upon consideration of the by the new organization, this contract bematter, we believe the trend of judicial came a contract of a fraternal benevolent asthought is that the courts should lightly con-sociation, as organized under our law, and cern themselves with this refinement in ex- the amount payable under the certificate beecuting benefit contracts and administering came payable to those who under our law relief in accordance with the beneficent spirit relating to such associations can become the reflected in the statutes under which the so- objects of the benefit. In short, the term cieties are organized and exist, for they “legal representatives" means, not the execupursue the same course in actions at law; tor or administrator, but those who under that is, sustain recoveries on such certificates our law can be the objects of the benefit. by the administrator or executor as in trust In that same case of Ordelheide v. Modern to the use of the parties who are rightfully Brotherhood of America, I expressed the entitled to the fund. See Shea v. Mass. Ben. opinion (158 Mo. App. loc. cit. 704, 705, 139 Ass'n, 160 Mass. 289, 35 N. E. 855, 39 Am. S. W. 276) that conceding for argument that St. Rep. 475; Burns v. Grand Lodge A. 0. the executor or administrator could recover, U. W., 153 Mass. 173, 26 N. E. 443; Rindge he would be bound, upon the appearance of v. New Eng. Mut. Aid Society, 146 Mass. 286, blood relations, next of kin, or heirs of the 15 N. E. 628. We believe this to be especial member, to turn over the proceeds, if he sucly true and the doctrine peculiarly appropri- ceeded in collecting, to those persons, accordate in those cases where the certificate is ing to our law of descent and distribution, payable to the personal representative as to the exclusion of creditors, citing Grand here, but for some inherent, valid reason Lodge v. Dister, 77 Mo. App. 608, and Beall the administrator himself may not recover v. Graham, 125 Mo. App. 38, 102 S. W. 636. for the benefit of the estate. See Bishop v. We have that proposition now presented and Grand Lodge E. O. of M. A., 112 N. Y. 627, I am in entire agreement with my Brother 20 N. E. 562.

NORTONI in the conclusion he has reached But it is not shown here as to whom the on it. fund should go in accordance with the constitution and by-laws of the order made under its charter in event no beneficiary is designated by the insured, and we are there

NELSON V. TROLL. fore unable to direct its disposition after (St. Louis Court of Appeals. Missouri. April payment to the plaintiff executor. The judg

8, 1913.) ment will therefore be reversed and the 1. EXECUTORS AND ADMINISTRATORS ($ 179*) cause remanded to the trial court, with direc

-ALLOWANCES TO HUSBAND-CURTESY. tions to ascertain the fact touching this mat Under Rev. St. 1909, $ 120, providing that, ter, and give judgment for the plaintiff there if a wife shall die owning personal property, on according to the views above expressed. be entitled to keep, as his absolute property,

her widower, in addition to the curtesy, shall It is so ordered.

all the articles provided for a widow in her

deceased husband's property by sections 114ALLEN, J., concurs. REYNOLDS, P. J., 116, 118, the husband is entitled to take absoconcurs in result in a separate opinion.

lutely, like a widow, regardless of issue of the

marriage. REYNOLDS, P. J. I concur in the result and Administrators, Cent. Dig. 88 651, 669;

[Ed. Note.-For other cases, see Executors reached by my Brother NORTONI, but add Dec. Dig. $ 179.*] this suggestion: In a dissenting opinion in 2. EXECUTORS AND ADMINISTRATORS ($8 176, Ordelheide, Adm'r v. Modern Brotherhood of

177*)-ALLOWANCE TO HUSBAND-RIGHTS OF America, 158 Mo. App. 677, loc. cit. 700 to 706, 139 S. W. 269, 275 to 277, I held that

A widower being given by Rev. St. 1909, interpreted by the by-laws, by the objects of $ 120, the same allowance in the personal prop.

erty of his wife as is given to a widow in the the association, by the law of this state, property of her husband under sections 114 particularly by section 7113, R. S. 1909, when and 115, providing that the widow shall be the term "legal representatives" was used by allowed to keep as her absolute property fam

ily books not exceeding $200, all wearing apthe member in designating his beneficiary, parel, her wheels, looms, and other implements "he must be held to have meant such persons of industry, all grain and other provisions as could lawfully become ‘legal representa necessary for her subsistence for 12 months tives' in a benefit certificate of that kind un

and her household furniture, not to exceed the

value of $500, and that, if the provisions alder the law of this state." Ouf Supreme lowed shall not be on hand, the court shall Court, in Armstrong v. Modern Brotherhood make reasonable appropriation to supply such For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

a deficiency, a surviving husband is entitled, 17. JUDGMENT (8 475*)-JUDGMENTS OF INwhere his wife owned household furniture, FERIOR COURTS-INTENDMENTS. to an absolute allowance of $500, or to that Though probate courts are courts of inallowance out of the proceeds, the same hav- ferior and limited jurisdiction, their judgments ing been sold and to an allowance for provi- upon matters within their jurisdiction are ensions, those not being on hand, but not to titled to the same weight as those of any other articles specifically mentioned such as wear- court of record, and are conclusive in all coling apparel and books, unless the deceased lateral proceedings. wife owned such property.

[Ed. Note.--For other cases, see Judgment, [Ed. Note.-For other cases, see Executors Cent. Dig. & 910; Dec. Dig. $ 475.* ] and Administrators, Cent. Dig. 88 661-666, 8. EXECUTORS AND ADMINISTRATORS ($ 24*)670; Dec. Dig. $$ 176, 177.*]

CUSTODY OF PROPERTY-JUDGMENT OF PRO

BATE COURT. 3. EXECUTORS AND ADMINISTRATORS (8 194*)

Despite Rev. St. 1909, 88 302, 305, pro-ALLOWANCE TO WIDOWER-REVIEW-FIND

viding that the public administrator may take INGS. A finding of the trial court as to a rea-posed to loss, and no other person administers

charge of an estate when the property is ex. sonable sum for provisions for the widower the same, and that he may enter upon this for a year allowed by Rev. St. 1909, $ 115, duty by the

mere filing of a notice of the fact is not open to review on appeal.

in the office of the clerk of the probate court, [Ed. Note. For other cases, see Executors an order of the probate court that no letters and Administrators, Cent. Dig. 88 713-723; of administration should issue upon the esDec. Dig. § 194.*]

tate of claimant's deceased wife and awarding 4. EXECUTORS AND ADMINISTRATORS (8 182*) that the probate 'court may refuse to grant

the same to him is, under section 10, providing -ALLOWANCES-RIGHT TO ALLOWANCE.

letters of administration on estates not greatIn view of Rev. St. 1909, $ 118, providing er in amount than is allowed by law as the that if the widow do not receive the property absolute property of the widow, conclusive as allowed her, and the same be sold, the court to the claimant's right to possession until it sball order the money to be paid to the widow, is revoked, and the mere filing by the public a widower who is entitled to the same rights administrator of an inventory will not render in the personalty of his wife as a wife is in claimant's possession wrongful so as to enthat of a deceased husband may, under section title the estate to damages. 116, providing that the widow may take such personal property as she choose not to exceed and Administrators, Cent. Dig. $$ 132–140;

[Ed. Note.–For other cases, see Executors the appraised value

of $400, have an allowance Dec. Dig. & 24.*] of $400 out of the proceeds of the wife's personalty, where they, in fact, exceed the amount of that and other absolute allowances, even Hugo Grimm, Judge.

Appeal from St. Louis Circuit Court; J. though the appraised value of the property was less than the amount of the several allow- Claim by Quincy M. Nelson against Harry ances.

Troll, public administrator, as administrator [Ed. Note.-For other cases, see Executors of the estate of Georgia Nelson, deceased. and Administrators, Cent. Dig. 88 651, 686-693; From a judgment of the circuit court on apDec. Dig. $ 182.*]

peal from the probate court, enforcing plain5. EXECUTORS AND ADMINISTRATORS ($ 250*) tiff's claim in part, but awarding defendant

-JURISDICTION OF PROBATE COUBT-COUN-a recovery on the counterclaim, plaintiff apTERCLAIMS.

Under Rev. St. 1909, 88 198, 199, 200, peals. Reversed and remanded, with direcproviding that the probate court shall have tions. jurisdiction of all suits against executors and administrators upon any demand against the

Charles P. Comer and England & England, estate, and of all offsets and defenses allowed all of St. Louis, for appellant. E. B. Peers, by law, and that an executor or administrator of St. Louis, for respondent. shall have power to exhibit the same offsets and defenses in behalf of the estate of his

NORTONI, J. This is a claim on the part testator which the latter might bave made in his lifetime, the probate court has jurisdiction of the plaintiff widower for the statutory to entertain a counterclaim interposed by an allowance and his absolute property in the administrator in all cases where counterclaims estate of his deceased wife. Defendant is are authorized by law.

the public administrator in charge of the [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. $8893-895; estate, and the proceeding originated in the Dec. Dig. $ 250.*]

probate court, from whence it found its way, .

Besides 6. EXECUTORS AND ADMINISTRATORS (§ 194*) by appeal, into the circuit court. -SUBJECT-MATTER OF COUNTERCLAIM.

denying in toto plaintiff's right, defendant Under Rev. St. 1909, § 1807, providing administrator filed a counterclaim in the that a counterclaim must be one in favor of probate court by which he seeks to recover a defendant and against a plaintiff, between from plaintiff for withholding the property whom a several judgment might be had, and arising either out of the contract or transac- of the estate and using it in a boarding tion set forth in the petition, or connected with house after the death of the intestate wife the subject of the action, an administrator and until the administrator came into posmay, wbere a widower claims personal property of his wife, set up as a counterclaim the session. On a trial in the circuit court, withclaimant's unauthorized use of property other out a jury, the court recognized and enforced than that which passed to the claimant abso- plaintiff's statutory rights in part, but found lutely before the administrator came into pos- for defendant and awarded a recovery on session. (Ed. Note.-For other cases, see Executors

the counterclaim too, and from this judgand Administrators, Cent. Dig. 88 713-723; ment plaintiff prosecutes the appeal. Dec. Dig. $ 194.*]

The principal questions for consideration *For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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