Faubel v. Eckhart

• Decision Date: 19 November 1912
• Citation: 151 Wis. 155,138 N.W. 615
• Parties: FAUBEL ET AL. v. ECKHART ET AL.
• Court: Wisconsin Supreme Court

151 Wis. 155

138 N.W. 615

FAUBEL ET AL.

v.ECKHART ET AL.

Supreme Court of Wisconsin.

Nov. 19, 1912.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Interpleader by the Central Unterstuetsungs Geselschaft Germania against Barbara Faubel and another against Theodore W. Eckhart and others. From a judgment for the latter, the former appeals. Reversed and remanded, with directions.Friedrich, Teall & Hackbarth, of Milwaukee, for appellant.

Schwefel & Knoell and A. J. Hedding, all of Milwaukee (A. G. Schwefel, of Milwaukee, of counsel), for respondents.

TIMLIN, J.

Ernst Eckhart held a certificate of membership in a fraternal association known as the Central Verein der Gegenseitige Unterstuetsungs Geselschaft Germania. He died on March 27, 1910, a member in good standing in said organization, and his certificate entitled the beneficiary therein named to the sum of $2,000. This membership began on or about August 18, 1888, and in the certificate then issued Caroline Eckhart, his wife, was named as beneficiary. Thereafter a suit for divorce by her was pending against him, and he was adjudged guilty of contempt for failing to pay suit money and alimony and committed to prison, from which he was released in April, 1909. On May 20, 1909, deceased surrendered to the association the certificate in which his wife was beneficiary, and obtained from it a new certificate, in which Barbara Faubel, a sister of deceased, was named beneficiary in the sum of $1,000, Louis Cords, a friend of deceased, a beneficiary in the sum of $500, and the estate of deceased beneficiary in the sum of $500. This sister and friend of deceased and the executors of the last will and testament of deceased are the plaintiffs and appellants in this action, and the widow and children of deceased are the defendants and respondents herein. The benefit association named paid the $2,000 in question into court, and interpleaded the parties to this action, and was itself discharged therefrom. At the time of the issuing of the certificate in question in August, 1888, and from thence until the death of Ernst Eckhart on March 27, 1910, there existed a by-law of the association regularly adopted and in force reading as follows: “A member who desires to change the person or persons named in the certificate as beneficiaries can, if he is in good standing, return his certificate and he shall receive a new certificate payable to such persons as he may desire on payment of one dollar. The request for the change of certificate must be endorsed on the back of the old certificate signed by the party and sent to the secretary of the central society.” The divorce case was carried to judgment, and on September 20, 1909, the wife had judgment of divorce from her said husband, which further provided that he pay her $50 for her use and benefit and the costs of the action specified, “which sums shall be and are a full and final division of the estate of the defendant and are in lieu of alimony herein.” The circuit court found that on and prior to September 11, 1909, there was a large sum of money due from said deceased to his wife upon the order for alimony in the divorce suit, and that, on the date mentioned at a place specified, “it was mutually agreed verbally between said Caroline Eckhart and the said deceased that the said deceased would make his minor children Caroline Kannenberg, Hilda Eckhart, Alfred Eckhart, Edwin Eckhart and Henry Eckhart beneficiaries of the said insurance and therein provide them with the full sum of $2,000 upon condition that the said Caroline Eckhart would release him from all claims for alimony and other claims and demands arising out of their relations as husband and wife, and properly for consideration in said divorce action, upon the payment to her of the sum of $50 and the costs and disbursements of the action; that said agreement was carried out by the said Caroline Eckhart and thereafter judgment for divorce duly obtained and entered in said circuit court.” Upon this state of the record, the circuit court concluded that the minor children under this agreement were entitled to the $2,000 as against the beneficiaries named in the benefit certificate and the executors of the will of the assured. It is not claimed that the will contained any gift of this insurance money.

The statute provides: “Any member may change the beneficiary named in his certificate or policy without the consent of such beneficiary by complying with the by-laws of the society order or association which issued the same.” Section 1955c, Stats. 1898, amended by chapter 101, Laws 1899. The cases decided are to the like effect. In McGowan v. Independent Order, etc., 104 Wis. 173, 80 N. W. 603, it is said to be well-settled that one insured in a mutual benefit association who wishes to change the beneficiary named in his certificate or policy must do so in the manner required by his policy and the rules of the association. The case of Supreme Conclave v. Cappella (C. C.) 41 Fed. 1, is cited with apparent approval, and the comprehensiveness of such rule is accentuated by specifying three recognized exceptions to the rule, no one of which is applicable here. In Berg v. Damkoehler, 112 Wis. 587, 88 N. W. 606, in a contest between interpleaded claimants of a fund paid into court by the association, it was decided that a written instrument signed by the insured purporting to change the beneficiary was insufficient for that purpose when the policy required in addition an acknowledgment, and this was not acknowledged. This case purports to follow, and applies to such facts the rule of McGowan v. Independent Order, etc., supra. In Thomas v. Covert, 126 Wis. 593, 105 N. W. 922, 3 L. R. A. (N. S.) 904, 5 Ann. Cas. 456, in a contest between interpleaded claimants, it is ruled that a provision in the constitution of the benefit association made part of the contract with the insured to the effect that the change of beneficiary could not be made by will was...