Supreme Council of Royal Arcanum v. Kacer

• Decision Date: 04 August 1902
• Parties: SUPREME COUNCIL OF ROYAL ARCANUM, Plaintiff, v. MARTIN KACER, Administrator, Respondent; GERTRUDE M. HARRIS et al., Appellants
• Court: Missouri Court of Appeals

69 S.W. 671

96 Mo.App. 93

SUPREME COUNCIL OF ROYAL ARCANUM, Plaintiff, v. MARTIN KACER, Administrator, Respondent; GERTRUDE M. HARRIS et al., Appellants

Court of Appeals of Missouri, St. Louis

August 4, 1902

Appeal from St. Louis City Circuit Court.--Hon. Selden P. Spencer Judge.

REVERSED AND REMANDED.

STATEMENT OF THE CASE.

The Royal Arcanum is a fraternal-beneficial association incorporated under the laws of Massachusetts and doing business in this State. On the twelfth day of March, 1886, it issued a benefit certificate on the life of Harry C. Yocum by which it promised to pay to his daughter and only child Florence, three thousand dollars upon satisfactory evidence of the death of said Harry C. Yocum and the surrender of the certificate, provided said certificate had not previously been surrendered by him and another issued at his request.

Among the objects of the association declared in its constitution and by-laws is the following:

"To establish a widow's and orphan's benefit fund, from which, on satisfactory evidence of the death of a member of the order who has complied with all its lawful requirements a sum not exceeding three thousand dollars shall be paid to the wife, children, relatives of or persons dependent upon such member, as limited and described in the laws of said order relating to benefit certificates, as he may direct in accordance with said laws."

One section of the by-laws (323) requires each applicant for insurance to enter on his application the name, residence and relationship or dependence of the person to whom he desires the benefit paid, who must be either a person dependent on the insuring member for support or a relative within one of the twelve gradations enumerated in the next section, which specifies two classes of persons who may be made beneficiaries, the first class consisting of the member's kindred in different degrees and the second class of persons dependent on him for support. Said section, in so far as it need be quoted, is as follows:

"Sec 324. A benefit may be made payable to any one or more persons of any of the following classes only:

"CLASS FIRST.

"Grade 1. Member's wife.

"Grade 2. Member's children and children of the deceased children and member's children by legal adoption.

"Grade 3. Member's grandchildren.

"Grade 4. Member's parents and member's parents by legal adoption.

"Grade 5. Member's brothers and sisters of the whole blood.

"Grade 6. Member's brothers and sisters of the half blood.

"Grade 7. Member's grandparents.

"Grade 8. Member's nieces and nephews.

"Grade 9. Member's cousins in the first degree.

"Grade 10. Member's aunts.

"Grade 11. Member's uncles.

"Grade 12. Member's next of kin who would be distributees of the personal estate of such member upon his death intestate.

"CLASS SECOND.

"To an affianced wife or to any person who is dependent upon the member for maintenance (food, clothing, lodging or education)."

Satisfactory proof of the dependence of the beneficiary on the member is required before a certificate will be issued in favor of a person not related to the insured, and further proof of dependency at the time of the member's death before payment will be made, and the issuance or assignment of certificates to secure the creditors of members is forbidden.

Other regulations pertinent to the questions arising in this cause are the following:

"If designation fails.

"Sec. 330. If at the time of the death of a member, who has designated as beneficiary a person of class second, the dependency required by the laws of the order shall have ceased, or shall be found not to have existed, or if the designated beneficiary is his wife, and they shall be divorced upon the application of either party, or if any designation shall fail for illegality or otherwise, then the benefit shall be payable to the person or persons mentioned in class first, section 324, if living, in the shares and order of precedence by grades as therein enumerated, the persons living of each precedent grade taking, in equal shares per capita, to the exclusion of all persons living of subsequent enumerated grades; except that in the distribution among persons of grade second, the children of deceased children shall take by representation the share the parent would have received if living. If no one of said class first shall be living at the death of the member, the benefit shall revert to the widows' and orphans' benefit fund.

"Death of one or more beneficiaries.

"Sec. 331. In the event of the death, before the decease of a member, of one or more of the beneficiaries, designated by him in accordance with the laws of the order, if he shall have made no other or further disposition thereof, as provided in the laws of the order, upon his death that part of the benefit made payable to the deceased beneficiary or beneficiaries shall be paid to the surviving beneficiary or the surviving beneficiaries equally.

"Death of all beneficiaries.

"Sec. 332. In the event of the death of all the beneficiaries designated by the member in accordance with the laws of the order, before the decease of such member, if he shall have made no other or further disposition thereof, as provided in the laws of the order, the benefit shall be disposed of as provided in section 330; excepting that if in such event the member shall leave surviving him his wife and a minor child or children of a marriage prior to that with such wife, the benefit shall be payable as follows: one-third thereof to such wife, and two-thirds thereof to all the minor children of said member equally."

Mr. Yocum and his daughter were aboard a naptha launch, the "Paul Jones," which left New Orleans on the twenty-eighth day of December, 1898, for a cruise in search of health and pleasure around the coast of the Gulf of Mexico to Belleair, Florida. Eight persons were on the launch, none of whom was seen alive after it reached the waters of the gulf. The boat was destroyed by some unknown cause and all on board must have perished. Portions of the boat itself and of the garments of its passengers and crew were afterwards found on the beaches of small islands near the coast and not far east of the mouth of the Mississippi river, as were the bodies of the pilot and one young lady; but the remains of Mr. Yocum and his daughter were never found.

The administrator of the daughter claimed the money due on the benefit certificate issued on her father's life and so did Gertrude M. Harris and Nettie Scanavi, who are his nieces and next of kin, the former of them residing in St. Louis and the latter in Vienna, Austria.

On account of these conflicting claims, the supreme council of the Royal Arcanum filed a petition against the claimants, paid the money into court and asked that they be compelled to interplead for it, which was ordered.

Much evidence was introduced about the comparative health and strength of Mr. Yocum and his daughter when they started on their cruise, for the purpose of showing who was likely to survive longest in a disaster to the boat; but a rehearsal of it would be useless, for it made no impression on us as tending to prove which survived. Nothing in the record throws the faintest light on the causes or incidents of the catastrophe and it will probably remain forever one of many mysterious tragedies of the sea.

Judgment was given below for the administrator of Florence Yocum's estate and the nieces appealed.

Reversed and remanded.

Wm. H. Clopton and Wm. S. Anthony for respondent.

(1) The circumstantial evidence in the case establishes the fact that Mr. Yocum died before his daughter. Such evidence has controlled in similar cases. Pell v. Ball, Cheeves Equity (S. C.) 99-103; Smith v. Croom, 7 Fla. 147; Coye v. Leich, 8 Met. (Mass.) 371-373; Ehle's Estate, 73 Wis. 445; 24 Am. and Eng. Enc. of Law, p. 1027; 51 L. R. A. 863, note to In re Wilbor. (2) The benefit certificate is payable to Florence L. Yocum. Any one claiming adverse to her interest must prove that she died before her father. Cowan v. Rogers, 73 Maryland 403; Underwood v. Wing, 19 Beav. 459; S. C., 8 H. L. C. 183; Satlerthawaite v. Powell, 1 Curt. 705; Taylor v. Diplock, 2 Phill. 251; Newell v. Nichols, 12 Hun 604, affirmed in Court of Appeals, 76 N.Y. 78; Coye v. Leach, 8 Met. (Mass.) 371; Johnson v. Merithew, 80 Maine 111; Wharton on Ev., sec. 1282; Best on Ev. (2 Ed.), p. 478; Lawson on Presumptive Ev., pp. 298, 302.

Wm. F. Woerner for appellants.

(1) Unless Florence Yocum survived her father she never had any such interest in the fund as could have been transmitted to her representative. The mere naming of a beneficiary in the benefit certificate of a member of a fraternal order confers no rights whatever until the death of the member. The person named has a mere expectancy, which can not ripen into an interest so as to be transmissible to his administrator unless he does survive the member. Hence, he necessarily claims only by reason of a survivorship. Masonic Benefit Ass'n v. Bunch, 109 Mo. 560; Hofman v. Grand Lodge, 73 Mo.App. 47; Expressmen's Aid Soc. v Lewis, 9 Mo.App. 412. (2) Where several persons perish in a common calamity, and no further evidence is obtainable, the law raises no presumptions of survivorship based on age or sex, and the party upon whom rests the burden to prove survivorship must fail. It may also be conceded that there is no technical legal presumption that all died simultaneously. But neither is there any presumption to the contrary; and it follows from the necessity of the case, and is consistently so held by the courts, that all property rights dependent on such survivorship are disposed of as if all had perished at the same instant. Whether theoretically we call this a "rule...