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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, but suffered judgment to go against it by default, and the Grand Lodge who prosecutes this appeal defends alone on the ground that it is not competent for the personal representative to recover on such certificate, and especially when the recovery is sought in behalf of a beneficiary not authorized under the Missouri statute.

We are not concerned with the powers of the Supreme Lodge which originally issued the certificate of insurance under its charter in the District of Columbia, and indeed, as to that matter, the court is wholly unadvis

[1] No one can doubt, for it is the general rule, that a policy of life insurance or a designation of beneficiary, valid in its inception, remains so although the insurable interest, or relationship of the beneficiary, has ceased, but the rule obtains only in those cases where it is not otherwise stipulated in the contract. See Bacon, Benefit Societies (3d Ed.) § 253; Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457, 24 L. Ed. 251; McKee v. Phoenix Life Ins. Co., 28 Mo. 383,

75 Am. Dec. 129.

[2] That a contract as originally made ed, for nothing was given in evidence touch- terms by the parties to it, and that theremay be subsequently modified as to material ing it except that it was a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 termined and enforced in accordance with the under which the Grand Lodge Knights of modified contract, is not open to question. 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 authorized the payment of the insurance issue certificates only to provide for the relief 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. Obviously this statute contemplates that such societies should accumulate a fund to be awarded as the bounty of the insured mem

left him free to dispose of it by will as he saw fit, it appears that it was materially modified in respect of this matter in 1893, when, with the insured's consent, defendant

Grand Lodge of Missouri became a party to

it. Even under the rule of the Kern and

ber as above suggested, and not to one, as here, who is not a member of the family of 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 burof the doctrine of these cases, it is said to dens of our general insurance laws, the char

charter to effectuate the contracts of the Supreme Lodge then retiring from the state. The original contract was necessarily thereby modified with respect to the right of the insured to designate a beneficiary to take the fund who was competent to receive it under the Missouri charter, for the Missouri Grand Lodge could accumulate a fund only in accordance therewith and for the purposes therein set forth.

reference to the substance rather than to of accumulating a fund under its Missouri sheer technical rules. To this extent the doctrine of those cases has surely been modified. See Westerman v. Sup. Lodge K. of P., 196 Mo. 670, 94 S. W. 470, 5 L. R. A. (N. S.) 1114; Schmidt v. Sup. Court Foresters, 228 Mo. 675, 706 et seq., 129 S. W. 653. This being true, it appears that the arrangement between the Supreme Lodge and the insured, one of its members, along with others, was to the effect that the Grand Lodge should be organized in Missouri under the Missouri Statutes, that the Grand Lodge in Missouri should assume complete jurisdiction over Mound City Lodge No. 4 of which the insured was a member, and should assume the obligation of fulfilling the office of the Supreme Lodge toward the insured as a member of the order and a certificate holder therein.

[4] By its charter (section 2823, R. S. 1889) the Missouri Grand Lodge was empowered to provide for the relief and aid of its members and their families, widows, orphans, or other kindred dependents of deceased members. While this statute does not expressly forbid the issuance of the certificate payable to the personal representative of the insured, it does so by implication, and it is clear that it does not authorize the designation of a stranger, in no way related by blood or marriage or in any manner dependent upon the member as beneficiary. See Bacon (3d Ed.) § 255; Grand Lodge v. Elsner, 26 Mo. App. 108. Although the certificate as originally issued by the Supreme Lodge authorized payment to be made to the personal representative of the insured, and even though the insured might bequeath and direct his personal representative to pay it to a stranger, such was not allowable on and after the modification of the contract through the arrangement, whereby, with insured's consent, he became a member of a subordinate lodge under, and accepted the obligation of, the Missouri Grand Lodge instead. Obviously this proceeding interposed the limitations of the charter of the Missouri company into the new contract as if an express provision to that effect obtained and operated to curtail the former right of desigthe fund to the persons declared competent nating the beneficiary and his disposition of to take by the provisions of our statute. Bacon, Benefit Societies (3d Ed.) § 253.

[3] Obviously the abstract rule relied upon is without influence, for the whole matter was one of contract between the parties as is always true with respect to the relations of such fraternal societies and their members, including, too, their insurance certificates which are ever subject to the charter powers and constitution and by-laws of the order when expressly agreed to. See Masonic Ben. Ass'n v. Bunch, 109 Mo. 560, 19 S. W. 25; Lewine v. Sup. Lodge K. of P., 122 Mo. App. 547, 99 S. W. 821. Touching this matter, it appears that the Supreme Lodge which issued the certificate, but had never qualified in this state, withdrew entirely from the field, and committed the whole matter of its business to the Grand Lodge organized in Missouri under our statute. The insured and all of the members consented to this arrangement and became affiliated with the Grand Lodge of Missouri under its Missouri charter which undertook to employ its powers in effectuating the certificate of insurance and fulfilling the office of the Supreme Lodge as to the social side of the [5] But, because these benefit certificates order. It is true the insured omitted to sur- first speak with authority as to vested rights 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 onere. 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

the member, no provision for one situate as | Am. Patriots, 162 Mo. App. 231, 144 8. W. this plaintiff is made.

[6] Of course, if the insured could not make a valid designation of the plaintiff directly as his beneficiary in the certificate so as to enable him to take the fund, it would not be competent for him to do so indirectly as by will; for it is against the policy of the law because it infringes the principle of benevolence involved to permit the funds of these societies to be diverted to others than those contemplated in the statute authorizing their existence. Am. Legion of Honor v. Perry, 140 Mass. 580, 5 N. E. 634.

1117; Sargent v. Knights of Honor, 158 Mass. 557, 33 N. E. 650. When a fund such as this is sought to be diverted from its proper purpose by will and the suit is by the executor, it is the duty of the court, if it appears the contract has been fully executed on the one part, to enforce the payment and direct its course to the proper recipient who is qualified as such under the charter. We say this because it is the purpose and the spirit of the law to award the bounties accumulated under benefit certificates to the persons for whom it is designed in the charter the fund should be accumulated, and for the further reason that the executor under the will, or the administrator of the insured, when the certificate so provides, is a proper party to prosecute the suit as his representative.

[8] But both from the obvious intent and spirit of the statute and an express provision to that effect the benefit is free to the use of the parties designated and from attachment and execution or other claims of the creditors of decedent. Section 7120, R. S. 1909; Beall v. Graham, 125 Mo. App. 38, 102 S. W. 636. This being true, plaintiff executor is entitled to recover, but not to his own use as legatee under the will, nor to the use of the estate of the insured, for the fund is not technically and strictly an asset of the estate of the insured, but rather special to the use contemplated in the charter. Grand Lodge v. Dister, 77 Mo. App. 608; Bishop v. Grand Lodge E. O. of M. A., 112 N. Y. 627, 20 N. E. 562. The recovery must, therefore, be had in trust to the use of those for whom the benefit was accumulated under the charter, and. to whom it should be paid in accordance with the by-laws of the order when no proper designation of a beneficiary has been made.

[7] But it appears that the insured paid all of his dues and assessments and fully complied with all requirements on his part. In such circumstances, it would be highly unjust to acquit the defendant of responsibility to the plaintiff executor on the certificate for the mere reason that he, as the sole legatee under the will, is not competent to receive the benefit, provided the fund may be directed in its proper course to those truly entitled. In respect of this question, the case is to be viewed in charity, for it is not one of an immoral or illegal contract, in that the contract is expressly denounced or inhibited by the law, but rather it presents the features only, when we look to the certificate alone, of an unlimited authorization with respect to the designation of a beneficiary; that is, the certificate is payable to the personal representative, and this would seem to imply that the fund should go into the corpus of the estate of the deceased or might be disposed of by will as the insured sought to do. Touching this matter alone, the contract may be regarded as ultra vires, for it is valid in every other respect. Bacon, Benefit Societies (3d Ed.) § 265; Shea v. Mass. Ben. Ass'n, 160 Mass. 289, 35 N. E. 855, 39 Am. St. Rep. 475. This being true, it is to be said, whatever may have been the prior course of decision on 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 contract has been fully executed, as here, on the one part by the payment of all assessments and dues and the death of the insured, the society will not be allowed to successfully as-available to the estate and the general claims sert in defense that the designation in the beneficiary certificate was one of a class of persons not included in the enumeration in the charter of those for whom benefits are to be provided. See Bacon, Benefit Societics (3ded therein or of any other person who may Ed.) § 265. We adverted to this doctrine in Armstrong v. Modern Brotherhood, 132 Mo. App. 171, 180, 112 S. W. 24, but predicated the judgment of the court on other grounds there. However, in the instant case, the precepts of natural justice invoke the full measure of the rule, for there can be no question as to its relevancy. That it is both sound and just in its proper application seems to be universally conceded. For authorities in point, see Benefit Ass'n v. Blue, 120 Ill. 121,

[9] As a rule, the administrator and executor, of course, represent the decedent generally, and when he recovers in that capaci

available to all persons who have just claims against it. Because of this, it seems anomalous to permit a recovery by him in an action at law as in trust for a special use not

of creditors. However this may be, by our statute (section 7120, R. S. 1909) the fund is relieved of all liability for the debt of either the certificate holder or the beneficiary nam

have a right thereunder, and in view of this the courts seem to have modified this general rule to the end of effectuating the manifest purpose of the benevolent statutes. The thought is that this statute qualifies the right of the decedent. Therefore, this court on a prior occasion authorized a recovery by the administrator of the beneficiary in the certificate, who died after the decease of the insured member, her husband, and before the 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 to the use of the parties who are rightfully entitled to the fund. See Shea v. Mass. Ben. Ass'n, 160 Mass. 289, 35 N. E. 855, 39 Am. St. Rep. 475; Burns v. Grand Lodge A. O. U. W., 153 Mass. 173, 26 N. E. 443; Rindge v. New Eng. Mut. Aid Society, 146 Mass. 286, 15 N. E. 628. We believe this to be especially true and the doctrine peculiarly appropriate in those cases where the certificate is payable to the personal representative as here, but for some inherent, valid reason the administrator himself may not recover for the benefit of the estate. See Bishop v. Grand Lodge E. O. of M. A., 112 N. Y. 627, 20 N. E. 562.

In that same case of Ordelheide v. Modern Brotherhood of America, I expressed the opinion (158 Mo. App. loc. cit. 704, 705, 139 S. W. 276) that conceding for argument that the executor or administrator could recover, he would be bound, upon the appearance of blood relations, next of kin, or heirs of the member, to turn over the proceeds, if he succeeded in collecting, to those persons, according to our law of descent and distribution, to the exclusion of creditors, citing Grand Lodge v. Dister, 77 Mo. App. 608, and Beall v. Graham, 125 Mo. App. 38, 102 S. W. 636. We have that proposition now presented and I am in entire agreement with my Brother NORTONI in the conclusion he has reached on it.

NELSON v. TROLL.

But it is not shown here as to whom the 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 therefore unable to direct its disposition after (St. Louis Court of Appeals. Missouri. April payment to the plaintiff executor. The judgment will therefore be reversed and the cause remanded to the trial court, with directions to ascertain the fact touching this matter, and give judgment for the plaintiff thereon according to the views above expressed. It is so ordered.

8, 1913.)

1. EXECUTORS AND ADMINISTRATORS (§ 179*) -ALLOWANCES TO HUSBAND-CURTESY. Under Rev. St. 1909, § 120, providing that, if a wife shall die owning personal property, her widower, in addition to the curtesy, shall be entitled to keep, as his absolute property, 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.

and Administrators, Cent. Dig. §§ 651, 669; [Ed. Note.-For other cases, see Executors Dec. Dig. § 179.*]

2. EXECUTORS AND ADMINISTRATORS (§§ 176, 177*)-ALLOWANCE TO HUSBAND-RIGHTS OF HUSBAND.

REYNOLDS, P. J. I concur in the result reached by my Brother NORTONI, but add this suggestion: In a dissenting opinion in Ordelheide, Adm'r v. Modern Brotherhood 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 erty of his wife as is given to a widow in the § 120, the same allowance in the personal propthe 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 family 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-value of $500, and that, if the provisions aland her household furniture, not to exceed the der the law of this state." Our 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

FERIOR COURTS-INTENDMENTS.

a deficiency, a surviving husband is entitled, | 7. JUDGMENT (8 475*)-JUDGMENTS OF INwhere his wife owned household furniture, to an absolute allowance of $500, or to that allowance out of the proceeds, the same having been sold and to an allowance for provisions, those not being on hand, but not to articles specifically mentioned such as wearing apparel and books, unless the deceased wife owned such property.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 661-666, 670; Dec. Dig. §§ 176, 177.*]

3. EXECUTORS AND ADMINISTRATORS (§ 194*) -ALLOWANCE TO WIDOWER-REVIEW-FIND

INGS.

A finding of the trial court as to a sonable sum for provisions for the widower for a year allowed by Rev. St. 1909, § 115, is not open to review on appeal.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 713-723; Dec. Dig. § 194.*]

Though probate courts are courts of inferior and limited jurisdiction, their judgments upon matters within their jurisdiction are entitled to the same weight as those of any other court of record, and are conclusive in all collateral proceedings.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 910; Dec. Dig. § 475.*] 8. EXECUTORS AND ADMINISTRATORS (§ 24*)— CUSTODY OF PROPERTY-JUDGMENT OF PROBATE COURT.

Despite Rev. St. 1909, §§ 302, 305, providing that the public administrator may take charge of an estate when the property is exrea-posed to loss, and no other person administers the same, and that he may enter upon this duty by the mere filing of a notice of the fact in the office of the clerk of the probate court, an order of the probate court that no letters of administration should issue upon the estate of claimant's deceased wife and awarding that the probate court may refuse to grant the same to him is, under section 10, providing letters of administration on estates not greater in amount than is allowed by law as the absolute property of the widow, conclusive as to the claimant's right to possession until it is revoked, and the mere filing by the public administrator of an inventory will not render claimant's possession wrongful so as to entitle the estate to damages.

4. EXECUTORS AND ADMINISTRATORS (§ 182*) -ALLOWANCES-RIGHT TO ALLOWANCE.

In view of Rev. St. 1909, § 118, providing that if the widow do not receive the property allowed her, and the same be sold, the court shall order the money to be paid to the widow, a widower who is entitled to the same rights in the personalty of his wife as a wife is in that of a deceased husband may, under section 116, providing that the widow may take such personal property as she choose not to exceed the appraised value of $400, have an allowance 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 though the appraised value of the property was less than the amount of the several allow

ances.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 651, 686-693; Dec. Dig. § 182.*]

5. EXECUTORS AND ADMINISTRATORS (§ 250*) -JURISDICTION OF PROBATE COURT-COUNTERCLAIMS.

Under Rev. St. 1909, §§ 198, 199, 200, providing that the probate court shall have jurisdiction of all suits against executors and administrators upon any demand against the estate, and of all offsets and defenses allowed by law, and that an executor or administrator shall have power to exhibit the same offsets and defenses in behalf of the estate of his testator which the latter might have made in his lifetime, the probate court has jurisdiction to entertain a counterclaim interposed by an administrator in all cases where counterclaims are authorized by law.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 893-895; Dec. Dig. § 250.*]

6. EXECUTORS AND ADMINISTRATORS (§ 194*)

-SUBJECT-Matter of COUNTERCLAIM.

Under Rev. St. 1909, § 1807, providing that a counterclaim must be one in favor of a defendant and against a plaintiff, between whom a several judgment might be had, and arising either out of the contract or transaction set forth in the petition, or connected with the subject of the action, an administrator may, where a widower claims personal property of his wife, set up as a counterclaim the claimant's unauthorized use of property other than that which passed to the claimant absolutely before the administrator came into pos

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 132-140; Dec. Dig. 24.*]

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Claim by Quincy M. Nelson against Harry Troll, public administrator, as administrator of the estate of Georgia Nelson, deceased. From a judgment of the circuit court on appeal from the probate court, enforcing plaintiff's claim in part, but awarding defendant a recovery on the counterclaim, plaintiff appeals. Reversed and remanded, with directions.

Charles P. Comer and England & England, all of St. Louis, for appellant. E. B. Peers, of St. Louis, for respondent.

NORTONI, J. This is a claim on the part of the plaintiff widower for the statutory allowance and his absolute property in the estate of his deceased wife. Defendant is the public administrator in charge of the estate, and the proceeding originated in the probate court, from whence it found its way, Besides

by appeal, into the circuit court. denying in toto plaintiff's right, defendant administrator filed a counterclaim in the probate court by which he seeks to recover from plaintiff for withholding the property of the estate and using it in a boarding house after the death of the intestate wife and until the administrator came into possession. On a trial in the circuit court, without a jury, the court recognized and enforced plaintiff's statutory rights in part, but found for defendant and awarded a recovery on [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.*]

session.

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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