Dean v. Dean

• Decision Date: 01 February 1916
• Citation: 156 N.W. 135,162 Wis. 303
• Parties: DEAN ET AL. v. DEAN.
• Court: Wisconsin Supreme Court

162 Wis. 303

156 N.W. 135

DEAN ET AL.

v.DEAN.

Supreme Court of Wisconsin.

Feb. 1, 1916.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by Fred K. Dean and others against Clara B. Dean, substituted as defendant, etc. Judgment for defendant, and plaintiffs appeal. Reversed, and cause remanded, with direction to render judgment for plaintiffs.

The action is brought by the plaintiffs, who are the children of Chauncey B. Dean, deceased, by his first marriage, to recover upon a benefit certificate for $2,000 issued December 23, 1898, by the Mystic Workers of the World, a fraternal order, on the life of said Chauncey B. Dean. The money having been brought into court by the order, Clara B. Dean, widow of the said Chauncey, was substituted as the defendant in the action, and the action was tried by the court without a jury.

The material facts were not in dispute, and were as follows: The certificate was issued to Chauncey B. Dean at Belvidere, Ill., December 23, 1898, and provided that the insured was entitled “to participate in the beneficiary fund of the order in the manner and upon the conditions of the contract printed on the back thereof and of the constitution, by-laws, and rules of the order in an amount not exceeding $2,000, which shall at death be paid to Frances K. Dean, bearing relationship to said member as wife.” Section 40 of the by-laws of the order at that time provided that each person applying to become a benefit member of the order must, among other things, “conform to the requirements of the ritual and agree to abide by the laws of the order then or thereafter in force.” Section 95 provided that the by-laws might be altered or amended at any regular session of the Supreme Lodge or special session called for that purpose under certain requirements with regard to notice to subordinate lodges. Section 79 provided that in case a member desired to make any change of beneficiary “he shall surrender his certificate with a statement thereon in writing stating the change he wishes made, and upon payment of fifty cents to pay the expense, the Supreme Secretary shall issue a new certificate as desired.” Section 84 provided that no person connected with the order “is authorized to waive any of the provisions of these laws except the Supreme Master by his written dispensation.” No provision was made in the constitution or by-laws with regard to the disposition of the death benefit in case of the death of the beneficiary before the death of the insured; no new designation of beneficiaries having been made by the insured. Frances K. Dean died March 3, 1899, and Chauncey B. Dean married the defendant, Clara, prior to December 2, 1907. On the last-named date Mr. Dean, who was a practicing lawyer in Belvidere, himself wrote upon the certificate the following:

“I, Chauncey B. Dean, to whom the within certificate was issued, do hereby revoke my former direction as to the payment of the beneficiary fund due at my death, and now authorize and direct such payment to be made to my wife, Clara B. Dean. Witness my hand and seal this 2d day of December, 1907. Chauncey B. Dean. [Seal.]”

He then took the certificate to the secretary of the local lodge at Belvidere and showed him the revocation. The secretary told Mr. Dean that according to the constitution it would be necessary to surrender the old policy and have a new one issued by the Supreme Lodge, and that a fee of fifty cents was required. Mr. Dean, however, said, in substance, that he wished no mention of the matter to be made and no entry on the lodge books; that he did not wish to surrender the certificate; he simply wanted the secretary to sign as a witness and place the seal of the lodge upon it, and that would answer his purpose. Dean then signed the revocation, the secretary signed as a witness, and placed thereon the lodge seal, Dean retained the certificate, and it was never surrendered, nor was any new certificate issued, and no entry was made upon the lodge books. This constituted the entire transaction. In June, 1912, the by-laws of the order were revised, and a new by-law added to the effect that in case the beneficiary predeceased the insured, and no other designation made, the benefit should be paid first to the widow or widower, or, if none, to the children, and then in order to the mother, if living, father, if living, brothers and sisters, if living, and lasting to dependents, provided, however, that in case a widow or widower and children survive, the widow or widower not being the parent of the deceased member's children, then payment shall be made to the children.

Dean died January 20, 1914, being at that time a...