Eves v. Sovereign Camp, W. O. W.

• Citation: 133 S.W. 657,153 Mo. App. 247
• Parties: EVES v. SOVEREIGN CAMP, W. O. W.
• Decision Date: 30 December 1910
• Court: Court of Appeal of Missouri (US)

133 S.W. 657

153 Mo. A. 247

EVES v. SOVEREIGN CAMP, W. O. W.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 24, 1911.

1. INSURANCE (§ 782)—BENEFIT CERTIFICATE —CHANGE OF BENEFICIARY.

The beneficiary in a certificate issued by a beneficiary association may be changed by the member, without the consent of the beneficiary, in the absence of prohibition by statute, or by the charter, by-laws, or certificate of the association.

2. INSURANCE (§ 782)—BENEFIT CERTIFICATE —CHANGE OF BENEFICIARY.

Rev. St. 1889, § 5854, declaring that "any policy of insurance * * * made by any insurance company on the life of any person, expressed to be for the benefit of any married woman * * * shall inure to her separate use and benefit," even if applicable to a benefit certificate, because of the beneficiary association having issued it before qualifying to do business under the act of March 16, 1897 (Acts 1897, p. 132), concerning fraternal beneficiary associations, then in force, does not prevent the member changing the beneficiary, the constitution and by-laws of the association, made part of the certificate, allowing it; such section making a policy for the benefit of a married woman inure to her as it is written, and not denying the power to reserve therein the right to change the beneficiary.

3. INTERPLEADER (§ 35)—COSTS.

Where, in a suit on a benefit certificate, a claimant of the benefit as a substituted beneficiary is required to interplead, and the suit proceeds between plaintiff and the interpleader, taxation of the costs to the fund, instead of the plaintiff, on interpleader succeeding, is in the sound discretion of the court.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Anna Eves against the Sovereign Camp, Woodmen of the World. Adelia Kerls and Vernetta Eves were required to interplead. Judgment for interpleader Kerls, and plaintiff appeals; said interpleader taking a cross-appeal. Affirmed.

This action originated as a suit brought by the plaintiff against the defendant, Sovereign Camp, Woodmen of the World, to recover $2,000 upon a benefit certificate. The defendant filed an answer in the nature of a bill of interpleader, and on leave and by consent paid into court $1,900, which was the amount of the certificate less $100 allowed it for counsel fees. An order was made requiring the claimants, Adelia Kerls and Vernetta Eves, to interplead, which they did, the latter by Franklin Miller, her guardian ad litem. A trial being had, the court, having heard the evidence, made and entered its decree, adjudging and decreeing that neither Anna Eves nor Vernetta Eves were entitled to anything on account of said certificate or from the funds deposited in court, and dismissing their interpleas. The court further, by said decree, ordered that the costs of the proceedings, including a fee of $50 to Franklin Miller, Esq., for services as guardian ad litem of Vernetta Eves, be paid out of said fund, and that the balance of said fund be paid by the clerk to Adelia Kerls. From said judgment and decree, the plaintiff, Anna Eves, after unsuccessfully moving for a new trial and in arrest, has duly prosecuted her appeal to this court. Interpleader Adelia Kerls is also here on cross-appeal from the action of the trial court in refusing to modify the decree, so as to tax the costs against the plaintiff instead of taxing them against the fund.

The conceded facts in the case may be stated as follows: On August 26, 1897, there was executed by Sovereign Camp, Woodmen of the World, and delivered through one of its subordinate lodges located at St. Louis, Mo., to Theodore Eves, then a member of said lodge, a beneficiary certificate which stated that said Eves "is, while in good standing as a member of this fraternity, entitled to participate in its beneficiary fund to the amount of two thousand dollars payable at his death to his wife, Anna Eves, by this Sovereign Camp. This certificate is issued and accepted subject to the conditions on the back hereof, and those named in the constitution and laws of this fraternity." On the back of said certificate there was a blank form for changing the beneficiary.

The constitution and laws of said Sovereign Camp provided that the beneficiary or beneficiaries might be, among others, the member's wife, sister, or daughter. They also contained the following provisions:

"Sec. 64. Should a member desire to change his beneficiary or beneficiaries, he may do so upon payment to the Sovereign Camp of a fee of twenty-five cents, which sum, together with his certificate, he shall forward to the Sovereign Clerk with his request written on the back of his certificate, giving the name or names of such new beneficiary or beneficiaries, and upon receipt thereof the Sovereign Clerk shall issue and return a new certificate, subject to the same conditions and rate as the one surrendered, which conditions shall be a part of the new certificate, in which he shall write the name or names of the new beneficiary, or beneficiaries and shall record said change in the proper books of the Sovereign Camp."

"Sec. 69. The constitution and laws of the Sovereign Camp of the Woodmen of the World now in force, or which may hereafter be enacted, by-laws of the camp now in force, or which may be hereafter enacted, the application and certificate shall constitute a part of the beneficiary contract between the order and the member."

On July 21, 1906, said certificate was indorsed and canceled by Theodore Eves and returned to said order, with direction from him that another certificate issue in lieu thereof, in which shall be named as beneficiary his sister, Adelia Kerls, for $1,500 thereof, and his daughter, Vernetta Eves, for $500 thereof. Said request for change of beneficiary was in accord with the laws of the order. On August 31, 1906, certificate was issued to said Theodore Eves in lieu of that canceled, in which was named his said sister and daughter as beneficiaries for the amounts as requested by said Eves, and in other respects like to that first issued. On September 4, 1907, said Theodore Eves duly indorsed and canceled the last-named certificate, and requested of said order that another be issued in lieu thereof, and the sole and only beneficiary named therein to be his sister, Adelia Kerls, for said sum of $2,000, and on the 10th day of September, 1907, a certificate was executed by the Sovereign Camp of said order containing such change of beneficiary and in other respects like that last canceled, and delivered to the local camp at St. Louis, which countersigned it on the 16th day of said month; and that prior thereto, and on the 14th day of said month, said Theodore Eves died.

At and prior to the issuance of the first certificate in August, 1897, and ever since that time, said Sovereign Camp has been a purely fraternal beneficiary association in every sense, as distinguished from an ordinary life insurance company, and was organized and existed under the laws of the state of Nebraska. At the time the first certificate was issued, the act concerning fraternal beneficiary associations, approved March 16, 1897 (Act 1897, p. 132), was in force, but said Sovereign Camp had not qualified thereunder. It did so qualify on November 2, 1897.

Of its own motion the court embodied conclusions of law in its decree as follows: "That Anna Eves, the beneficiary in the certificate issued on the life of Theodore Eves on August 26, 1897, although the Sovereign Camp, Woodmen of the World, had not qualified under or received permission to do business in this state under the provisions of the act of 1897, had no vested interest in said certificate or in the benefits provided thereby which her husband, Theodore Eves, could not change without her consent, and that the change of the beneficiary therein by Theodore Eves without the consent of Anna Eves to Adelia Kerls and Vernetta Eves was perfectly lawful and permissible. That the change of the beneficiary by Theodore Eves from Adelia Kerls and Vernetta Eves to Adelia Kerls without their consent was perfectly lawful and permissible, and that at the time of the death of Theodore Eves on September 14, 1907, the certificate or obligation to Adelia Kerls as the beneficiary was lawful and binding upon all parties to this action, and that Adelia Kerls then was, and now is, entitled to the proceeds provided to be paid the beneficiary therein."

Charles Fensky, for appellant. Wm. L....