Arcanum v. Bevis
| Decision Date | 17 May 1904 |
| Citation | 80 S.W. 739,106 Mo.App. 429 |
| Parties | SUPREME COUNCIL ROYAL ARCANUM, Plaintiff, v. BEVIS, Interpleader-Appellant, and STRODE, Admr., Interpleader-Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. A. McDonald Judge.
Judgment reversed and cause remanded.
Frederick H. Bacon for appellant.
(1) By the express terms of the contract entered into between Alfred Bevis and plaintiff order, appellant is entitled to the fund. The benefit certificate was issued by a fraternal beneficiary association, and the contract is found in the certificate and the by-laws taken in connection with the charter, which consists of the articles of association and the statutes of the State under which it was organized. Mulroy v. Knights of Honor, 28 Mo.App. 463; Grand Lodge v Elsner, 26 Mo.App. 109. (2) The contract is unlike that made by the regular life insurance companies, in that it confers no vested rights on the beneficiary and the benefit certificate is not a policy in the ordinary acceptation of the term. Morton v. Royal Tribe of Joseph, 93 Mo.App. 92; Supreme Council v. Kacer, 96 Mo.App. 93; Masonic Benefit Ass'n v. Bunch, 109 Mo. 560; Arthur v. Odd Fellows Ben. Ass'n, 29 Ohio St 557; Ben. Ass'n v. Clendinen, 44 Md. 429; Hoffman v. Grand Lodge, 73 Mo.App. 47. (3) The designation of a beneficiary is a testamentary act in that it speaks as of the time of the death of the member. Death is the ripening of the expectancy, and all rights to the fund are to be determined by the laws of the order in force at that time, and by the statutes then existing. Order Railway Conductors v. Koster, 55 Mo.App. 193; Supreme Council, etc., v. Neidelet, 81 Mo.App. 602; Expressmen's Aid Society v. Lewis, 9 Mo.App. 412; Kirkpatrick v. Modern Woodmen, 103 Ill.App. 473; Supreme Council Am. L. of H. v. Adams, 68 N.H. 236; 44 A. 381; Pease v. Royal Society, 176 Mass. 506. (4) The death of the beneficiary in the lifetime of the member ends his or her rights, and there is a lapse of the designation, so that, were it not for the provisions of the by-laws providing for such a contingency, the benefit would revert to the society. Keener v. Grand Lodge, A. O. U. W., 38 Mo.App. 550; Masonic Mut. B. Ass'n v. McAuley, 2 Mackey 70; Hellenberg v. District No. 1, 94 N.Y. 580; Eastman v. Provident Relief Society, 62 N.H. 555; Golden Star Fraternity v. Martin (N. J. Err. and App.), 35 A. 908; Supreme Council v. Gehrenbach, 124 Cal. 43; 56 P. 640. (5) If the by-laws provide in what manner the benefit shall be disposed of in case there is a lapse of designation, such provision is a part of the contract, and will be enforced by the courts. Fischer v. American L. of H., 168 Pa. St. 279, 31 A. 1089; Moss v. Littleton, 6 App. D. C. 201; Given v. Odd Fellows, etc., Assn., 71 Wis. 547. (6) The evidence does not disclose any contract between Alfred Bevis and his deceased wife definite and certain enough in its terms to be enforced; it does not show that any loan was made, or, if any loan such as is contended for was in fact made, that it was never paid. The daughters of Alfred Bevis were incompetent witnesses to testify concerning the transactions between their mother and father. Meier v. Thieman, 90 Mo. 443; Satelle v. Ins. Co., 81 Mo.App. 518; Grand Lodge v. Dister, 77 Mo.App. 608.
John S. Leahy and F. H. Sullivan for respondent.
(1) The daughters of the deceased beneficiary were competent witnesses in behalf of respondent. R. S. 1899, sec. 4652; Banking House v. Rood, 132 Mo. 256; Bank v. Slattery, 166 Mo. 620. (2) This court will defer to the lower court's finding of facts. Dunnivan v. Dunnivan, 157 Mo. 160; Becht v. Becht, 168 Mo. 528; Arn v. Arn, 81 Mo.App. 140; Culver v. Smith, 82 Mo.App. 398; Ozark L. & L. Co. v. Robertson, 89 Mo.App. 528. (3) In its ultimate analysis the contract of plaintiff order was nothing other than a contract of life insurance. State ex rel. v. Ben. Society, 72 Mo. 152; Smith v. Sovereign Camp (Mo. Sup.), 77 S.W. 862, 33 Ins. L. J. 97; State ex rel. v. Society, 6 Mo.App. 163; Mulroy v. Knights of Honor, 28 Mo.App. 471; Com. v. Wetherbee, 105 Mass. 149; 1 Bacon, Ben. Soc., p. 32, sec. 23. (4) Under the contract between the insured and respondent's intestate, the latter took a vested right and her administrator is entitled to the fund. Hysinger v. Lodge, 42 Mo.App. 627; Grand Lodge v. Elsner, 28 Mo.App. 119; Hoffman v. Grand Lodge, 73 Mo.App. 56; Smith v. Ben. Soc., 123 N.Y. 87; Webster v. Welsh, 68 N.Y.S. 55; Kimball v. Lester, 59 N.Y.S. 540; Royal Arcanum v. Tracey, 48 N. E. (Ill.) 401; McGrew v. McGrew, 190 Ill. 604; Leaf v. Leaf, 92 Ky. 166; Jorey v. Legion of Honor, 105 Cal. 20; Adams v. Grand Lodge, 105 Cal. 321; Grimley v. Harold, 125 Cal. 24. (5) The disclaimer filed by the daughters of respondent's intestate had no other effect than to eliminate their own personal claim from the case. Grand Lodge v. Dister, 77 Mo.App. 608; Bishop v. Grand Lodge, 112 N.Y. 627; Chartrand v. Bruce, 16 Colo. 19; Union Mutual v. Montgomery, 70 Mich. 587.
In February, 1887, Alfred Bevis, now deceased, became a member of the fraternal order of the Royal Arcanum and took out a certificate of insurance for $ 3,000, payable to his then wife, Lida V. Bevis, who died January 27, 1897, before said Alfred, leaving three daughters, to-wit; Florence Longstreth, Perlie B. Crawford and Lida V. Roth. Alfred Bevis, after the death of his said wife, designated no other beneficiary of the certificate of insurance. He married again, his second wife being Vivia Clyde Bevis, the appellant. After the death of Alfred Bevis, the proceeds of the benefit certificate were claimed by his three daughters above named and also by his surviving widow, Vivia Clyde Bevis, and to have their rights settled the Supreme Council of the Royal Arcanum filed a bill in equity asking that they be required to interplead; which was ordered. The Royal Arcanum is a fraternal association organized under the statutes of Massachusetts for the purpose of assisting the widows, orphans and other persons dependent on deceased members. One of the laws of the society enumerates classes of persons who may be made beneficiaries, including among them a member's wife and children. Another law provides that if any designation of a beneficiary shall fail for illegality, or otherwise, and the member shall have made no other designation, the benefit shall be paid to the persons designated by section 324 of the laws of the society, in the order of precedence by grades as therein enumerated, namely, first: a member's wife; second, his children, etc. The appellant, Vivia Clyde Bevis, claims the benefit fund by virtue of those by-laws, as she is the widow of the deceased member and entitled to precedence over his children. The three daughters in their interplea asserted a right to the fund as the legal heirs of their mother, Lida V. Bevis, alleging that their father, Alfred Bevis, was largely indebted to their mother Lida when he procured the benefit insurance and being so indebted, promised and agreed in consideration of what he owed her and additional future loans, that the insurance should go to their said mother or her heirs in part payment of what he owed her; that relying on this agreement and promise, the said Lida thereafter advanced further sums of money to said Alfred Bevis. The original claimants of the fund were, as stated, the widow Vivia Clyde and the three daughters; but after their interpleas had been filed, Garrard Strode, public administrator in charge of the estate of Lida V. Bevis, filed an interplea March 3, 1903, setting up a right to the fund as administrator de bonis non, by virtue of the alleged contract pleaded in the interplea of the daughters. After Strode answered the daughters dismissed their interpleas and disclaimed all interest in the fund. It appears that prior to the present administration of the estate of Lida V. Bevis, her husband, Alfred Bevis, had administered the estate and fully settled it.
The administrator succeeded below and the widow appealed.
The questions raised are: Were the daughters competent witnesses? Was their testimony sufficient in law to establish the alleged agreement? Was it in the power of Alfred Bevis to contract with his wife that the benefit money should go to her children in payment of loans made by her? Did the disclaimer filed by the daughters, of any interest in the fund, extinguish their rights, and in consequence the right of the administrator Garrard Strode, who is, in effect, their trustee, as the estate of Lida Bevis owes no debts?
No doubt can exist concerning the right of Vivia Clyde Bevis the surviving widow of Alfred Bevis, deceased, to the fund in controversy, unless her right was superseded by the contract asserted to have been made between said Alfred and his first wife, Lida, by which the insurance was pledged or transferred to the latter for advances made to him. As the first beneficiary died before the insured, the by-laws of the order carried the fund directly to the surviving widow of the insured, he having designated no other beneficiary. The supposed contract by which the proceeds of the certificate were pledged to Lida Bevis, rests entirely on the testimony of the three daughters who are the real parties in interest and claimants of the fund. Their competency as witnesses to prove that contract between their deceased father and mother was challenged because of his death and the fact that they would be the beneficiaries of the contract if established. Our statute in regard to the competency of witnesses to prove a contract by which they will profit, in detriment of the estate of a deceased party to the contract or those claiming...
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