Counsman v. Modern Woodmen of America

• Decision Date: 17 September 1903
• Docket Number: 12,964
• Parties: MARY E. COUNSMAN v. MODERN WOODMEN OF AMERICA ET AL. [*]
• Court: Nebraska Supreme Court

96 N.W. 672

69 Neb. 710

MARY E. COUNSMAN v. MODERN WOODMEN OF AMERICA ET AL. ^[*]

No. 12, 964

Supreme Court of Nebraska

September 17, 1903

ERROR to the district court for Douglas county: WILLIAM W. KEYSOR DISTRICT JUDGE. Reversed.

REVERSED.

Charles G. McDonald and James A. C. Kennedy, for plaintiff in error.

George W. Cooper, contra.

HASTINGS C. OLDHAM and AMES, CC., concur.

OPINION

HASTINGS, C.

This case presents but one question for our consideration, that is, whether or not the beneficiary in the insurance certificate of Ulysses G. Counsman was changed by his action on the 28th day of May, 1901, he having died before six o'clock in the morning, on May 29 of that year. On the evening of the 29th his benefit certificate, with the indication of the change, was forwarded to the head camp of the order by W. B. Wardell, clerk of Omaha Camp No. 1,833. Counsman died on the next morning, and his benefit certificate was received at the "head camp" in Rock Island on the 30th, and on the 31st, no notice of his death having yet been received, the certificate was mailed to the clerk at Omaha by the head clerk, with a letter refusing to make the requested change, because it was not in accordance with the by-laws of the association. The certificate had named his son to the extent of $ 1,500, and his wife to the extent of $ 500, as beneficiaries and the proposed change named his mother instead of his wife and his father as trustee for the boy as to the remainder of the benefit. Such a trustee is forbidden by the rules of the organization and the certificate was, therefore, returned to be corrected, but of course could not be after the death of the assured. The organization paid the $ 1,500 due the boy to his guardian. The $ 500 was claimed both by the mother and the wife. The association filed its petition asking leave to pay the $ 500 into court and be relieved from further liability, and that the court dispose of the fund. This order was granted. The mother, Arabella Counsman, and the wife, Mary E. Counsman, each filed answer and cross-petition claiming the money; the money was paid and the association discharged. The district court found the mother was entitled to the $ 500. Motion for new trial was filed by the wife, on the ground that the decision was contrary to law and not sustained by sufficient evidence, and also on the ground of newly discovered evidence, and errors of law occurring at the trial. This motion was overruled. Supersedeas bond was given, and the case brought by petition in error to this court by attorneys MacDonald and Kennedy, on leave obtained in this court because of the refusal of their client to prosecute the action and because of their having an interest in the result under an agreement for a contingent fee.

The only point urged is that the evidence was insufficient to show a right on the part of the mother; that the attempt to change the beneficiary was not completed. The benefit certificate was dated May 23, 1898. By a provision of the by-laws in force at that time a member in good standing at any time might change the beneficiary by paying to the camp clerk fifty cents and delivering his certificate with the surrender clause on the back of it filled out to designate the change. This surrender should be executed in the presence of the camp clerk, but if he could not be present, then its execution might be attested or acknowledged by any person...