Andrews v. Most Worshipful Grand Lodge of North Carolina Free & Accepted Order of Masons

• Decision Date: 20 May 1925
• Docket Number: 463.
• Citation: 128 S.E. 4,189 N.C. 697
• Parties: ANDREWS v. MOST WORSHIPFUL GRAND LODGE OF NORTH CAROLINA FREE & ACCEPTED ORDER OF MASONS.
• Court: North Carolina Supreme Court

128 S.E. 4

189 N.C. 697

ANDREWS v. MOST WORSHIPFUL GRAND LODGE OF NORTH CAROLINA FREE & ACCEPTED ORDER OF MASONS.

No. 463.

Supreme Court of North Carolina

May 20, 1925

Appeal from Superior Court, Mecklenburg County.

Action by Adah Andrews, personally and as administratrix, against the Most Worshipful Grand Lodge of North Carolina Free and Accepted Order of Masons. Judgment for plaintiff as administratrix, and defendant appeals. Reversed and remanded with directions to enter judgment for plaintiff personally.

Wife named as beneficiary, entitled rather than administratrix.

This action is brought by Adah Andrews, personally, and as administratrix of Leroy Andrews, against defendant, on the following certificate, hereafter designated as policy:

"This certifies that brother Leroy Andrews is a beneficiary member of this department, and as such on his death, his heirs, beneficiaries, or legal representative, whose names appear in the margin of this certificate (Adah Andrews wife) shall be entitled to the sum of $350.00, to be paid within sixty days after the death of the aforenamed brother, subject to the following conditions, viz., that the said brother at the time of his death, shall be a financial member of both a subordinate lodge of this jurisdiction and of the endowment department.

Given under our hands and seal, this the 22d October, 1907.

James H. Young, Grand Endowment Sec'y.

R. B. McRary, Most Worshipful Grand Master."

From the complaint and answer, it is admitted that defendant is a North Carolina corporation, and is and has been at the time hereinafter mentioned engaged in the business of life and health insurance and other kinds of insurance within this state, being ordinarily known as a fraternal order.

The plaintiff alleges that Leroy Andrews died May 11, 1922, and at the time of his death Adah Andrews was his lawful wife, and all the premiums and dues on the policy had been paid and the policy was valid and in full force and effect at the time of the death of Leroy Andrews, and that she personally, or as administratrix, under the policy, was entitled to the sum mentioned in the policy.

The defendant denies that Adah Andrews was the lawful wife of Leroy Andrews and denies the validity of the policy held by plaintiff, Adah Andrews, and denies that it is liable or indebted to her in any amount. In its answer it says:

"That it is admitted that Leroy Andrews was a member of the Masonic Lodge for many years and that he was financial in the endowment department at the time of his death, that upon compliance with stipulations recited in policy, the amount therein named should be paid the legal wife of the said Leroy Andrews."

And as a further defense alleges:

"(1) That it is informed and believes that at the time policy was issued to the late Leroy Andrews, that he was legally married to and lived with Hattie Andrews as his wife and who at his request was named as beneficiary therein.

(2) That at the time of the death of the said Leroy Andrews, Hattie Andrews was and is, his legal wife, and as such is entitled to the face value of said policy."

To sustain defendant's contention on the hearing, it introduced an exact copy of the policy sued on--except "Hattie Andrews, wife" was in the policy in place of "Adah Andrews, wife." This policy was dated 28th of August, 1916. The issues submitted to the jury and the answers thereto are:

"(1) Was Adah Andrews the lawful wife of Leroy Andrews at the time of his death? Answer: Yes.

(2) Was Hattie Andrews the lawful wife of Leroy Andrews at the time of his death? Answer: No.

(3) Did Leroy Andrews direct the name of Hattie Andrews to be substituted for the name of Adah Andrews as beneficiary in the policy of insurance issued on or about October 22, 1907? Answer: Yes.

(4) What amount, if anything, is due Hattie Andrews on said policy? Answer: Nothing.

(5) What amount, if anything, is due Adah Andrews on said policy? Answer: Nothing.

(6) What amount, if anything, is due Adah Andrews, administratrix, on said policy? Answer: $350 and interest from date as qualification as admx."

The court below rendered judgment as follows:

"The court being of the opinion that Hattie Andrews was not entitled to recover, instructed the jury to answer 'Nothing' to the fourth issue; and the court being of the opinion that Adah Andrews was not entitled to recover having granted 'nonsuit' as to her personally, instructed the jury to answer the fifth issue 'Nothing.' The jury having answered the sixth issue '$350 and interest from February 19, 1924,' it having been agreed by plaintiff and defendant that this amount due, if any, under the rules of the court, the following judgment was rendered:

Ordered, adjudged, and decreed that the plaintiff, Adah Andrews, administratrix of Leroy Andrews, have and recover of the defendant the sum of $350, with interest on $350 from February 19, 1924, until paid, and that the cost of this action be taxed against Adah Andrews, administratrix, by the clerk."

The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones will be considered in the opinion.

P. H. Bell, of Plymouth, and J. T. Sanders, of Charlotte, for appellant.

Preston & Ross, of Charlotte, for appellee.

CLARKSON J.

From the pleadings it will be noted that there is no denial on the part of defendant that it is due the amount set forth in the policy, but in its answer as a defense to plaintiff's action alleges:

"That at the time of the death of the said Leroy Andrews, Hattie Andrews was and is his legal wife, and, as such, is entitled to the face value of said policy."

C. S. § 6508 (Pub. Laws 1913, c. 89, § 5) is as follows: "The payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person or persons dependent upon the member; but if after the issuance of the original certificate the member shall become dependent upon an incorporated charitable institution, he shall have the privilege, with the consent of the society, to make such institution his beneficiary. Within the above restrictions each member shall have the right to designate his beneficiary, and, from time to time, have the same changed in accordance with the laws, rules and regulations of the society, and no beneficiary shall have or obtain any vested interest in such benefit until the same has become due and payable upon the death of the member. Any society may, by its laws, limit the scope of beneficiaries within the above classes."

Under the issues submitted in the court below, the jury found that Adah Andrews, and not Hattie Andrews, was the wife of Leroy Andrews. Under C. S.§ 6508, supra, Leroy Andrews had no legal right to substitute the name of Hattie Andrews for his lawful wife, Adah Andrews, as beneficiary in the policy of insurance issued by the defendant October 22, 1907.

Under a similar statute in Ohio, construed in Applebaum v. Commercial Travelers, 171 N.C. 435, 88 S.E. 722 (similar facts), Clark, C.J., said:

"Naming her as the applicant's wife in the application was a fraud, and does not entitle her to be a beneficiary of the contract."

In fact, naming Hattie Andrews, who was not his wife, was void as to her and contrary to the plain provisions of the statute. This did not revoke the former policy, but left Adah Andrews, the lawful wife, the beneficiary under the policy--she being named in the policy--the policy having been kept in force according to the rules of defendant company.

The matter is well stated in Bacon on Benefit Societies, § 310, C, citing numerous cases, as follows:

"The question occurs as to the effect on the rights of the beneficiaries first designated by an attempted change of beneficiary which is incomplete, or where the change, being effected by compliance with the required formalities and the issuance of a new certificate, is illegal because the second beneficiaries are not entitled to take. While it seems to be taken for granted in the cases cited in the preceding sections that if the attempted change of beneficiary is not complete the rights of the first beneficiaries are not affected, because the revocation is not made complete by the issuance of

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