Gibbs v. Knights of Pythias of Missouri
| Decision Date | 08 April 1913 |
| Citation | 156 S.W. 11,173 Mo.App. 34 |
| Parties | ABRAHAM GIBBS, Executor, Respondent, v. KNIGHTS OF PYTHIAS OF MISSOURI, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
Reversed and remanded. (with directions).
W. R Hill for appellant.
(1) Plaintiff being the sole legatee under the will of the deceased, and not coming within the class of persons designated in the statute of Missouri and the by-laws of the defendant Knights of Pythias of Missouri, etc., is not entitled to recover the fund sued for. R. S. 1879, sec. 2823; R. S. 1899, sec. 1408; Masonic Benefit Assn. v Bunch, 109 Mo. 560; Pauly v. M. W. A., 87 S.W R. 990; Keener v. Grand Lodge, 38 Mo.App. 543; Dennis v. M. B. A., 119 Mo.App. 210. (2) Where the by-laws of the association provide that the amount should be paid to certain person, the deceased could not bequeath it to another. Grand Lodge v. Elsner, 26 Mo.App. 108. (3) A member cannot do by will what the society cannot do, and therefore a tesetamentary bequest of a death benefit to one not a member of the class mentioned in the statute is void. Legion of Honor v. Perry, 140 Mass. 589; Elsey v. Odd Fellows, 142 Mass. 224. (4) A benefit society cannot transcend the limits of the statute and recognize as beneficiaries parties not named therein, nor can the party whose life is insured divert the fund from the objects named in the statute, so a son cannot by will divert from his childless widow to his father to pay funeral and sick expenses, the fund coming to his widow by virtue of his membership certificate. Wagner v. Benefit Society, 70 Mo.App. 161.
F. H. Bacon for respondent.
(1) The policy sued on being issued in 1892 by a foreign corporation not authorized to do business in this State could be made payable to anyone selected by the member, or policy holder, and such policy holder had the right to make the policy payable to his legal representatives. Toomey v. Supreme Lodge, 74 Mo.App. 507; Kern v. Supreme Lodge, etc., 167 Mo. 471. (2) A policy of insurance valid in its inception remains so. Insurance Co. v. Schaefer, 94 U.S. 457; McKee v. Insurance Co., 28 Mo. 383. This is true not only of a policy issued by a regular life insurance company, but a certificate issued by a fraternal beneficiary society. White v. Brotherhood of American Yeoman, 124 Ia. 293, 99 N.W. 107, 66 L. R. A. 164; Brown v. Grand Lodge, 208 Pa. 101; Farrar v. Branman, 86 N. E. (Ind.), 843. (3) Plaintiff being the legal representative of James Williams as such has the right to sue on all instruments payable to the legal representatives of the deceased. It is immaterial whether he takes the money as a trustee or as a plain representative of the deceased. Grand Lodge v. Dister, 77 Mo.App. 608; Wilson v. American Benevolent Assn., 125 Mo.App. 598. (4) If the policy was valid in its inception and the defendant, Grand Lodge, collected and retained the premiums thereunder, it cannot now repudiate the obligation without returning all assessments which it did not offer to do. The case comes under the principles laid down in somewhat similar cases by this court. Hysinger v. Grand Lodge, etc., 42 Mo.App. 627; Martinez v. Supreme Lodge, 81 Mo.App. 590. (5) While it is true under the authorities cited by counsel for appellant, that the defendant, Grand Lodge, had no power to issue certificates to persons of one of the classes not mentioned in the statute, yet that rule does not apply when the defendant has collected premiums on a policy valid when issued, but payable to a different beneficiary than one of the classes mentioned in the statute, because the law of estoppel applies. Edwards v. American Patriots, 162 Mo.App. 231-235; Bank v. Trust Co., 187 Mo. 529.
--This is a suit on a certificate of life insurance. Plaintiff recovered and defendant prosecutes the appeal.
The principal question for consideration relates to the right of a personal representative of the injured, who is one not included within the class of beneficiaries authorized by our statute, to recover on the certificate, when it appears the insured fully performed all of the conditions on his part and the contract is fully executed excepting its payment by defendant. Subsidiary to this are the questions: If the executor is allowed to recover, may he do so in the interests of a legatee under the will, to whom the insured bequeathed the fund, or whom he nominated in the will as beneficiary thereof, when it appears such legatee or beneficiary is not one of the class denominated by our statute as competent to receive such benefits; or, shall the recovery be for the benefit of the estate of the insured and the fund turned into its corpus as available to all creditors; or, may he recover alone as in trust for the benefit of those persons contemplated by the statute as beneficiaries and pointed out by the by-laws of the order as the recipients of the fund when no designation of a beneficiary has been made?
The suit proceeds jointly on the same certificate of insurance against two incorporated fraternal societies, on the theory that, though one alone issued the certificate in the first instance, the other thereafter assumed its obligation and, by collecting all of the dues and assessments from the insured member, became liable to respond thereon in accordance with its terms. There is no controversy touching the facts, for they are all set forth in an agreed statement, on which a general judgment was given for plaintiff executor, who is himself the sole legatee under the will of the insured.
The certificate of life insurance was issued to the insured, James Williams, on September 30, 1892, by defendant "Supreme Lodge Knights of Pythias of North and South America, Europe, Asia and Africa," a fraternal beneficiary association, incorporated and with headquarters in the District of Columbia. It appears that this company never qualified as a fraternal beneficiary association under the Missouri statutes and was therefore not licensed to do the business of life insurance as such in this State at the time the certificate in suit was issued. Notwithstanding this fact, the Supreme Lodge Knights of Pythias of North and South America, Europe, Asia and Africa established subordinate lodges here, one of which was Mound City Lodge No. 4, located in the city of St. Louis. The insured affiliated with this lodge, and, as before said, on September 30, 1892, received through it the certificate of life insurance payable at his death in the amount of $ 300 to his "legal representative or representatives." He paid all assessments and dues on the certificate and as a member of the order as they accrued and were levied, to the Supreme Lodge which had issued it, until, by an arrangement with all of its members, that order, acting through the Supreme Lodge, organized and incorporated as subordinate thereto the defendant Grand Lodge Knights of Pythias of the State of Missouri. And thereupon and thereafter the insured paid all assessments and dues to the latter. It appears that in 1893, or about one year after the certificate was issued by the Supreme Lodge, the Grand Lodge Knights of Pythias of Missouri was incorporated in this State and under our statute authorizing such societies, as subordinate to the Supreme Lodge with headquarters in the District of Columbia, and succeeded to all of the affairs of the Supreme Lodge in Missouri. In September, 1893, the Supreme Lodge Knights of Pythias of North and South America, Europe, Asia and Africa withdrew entirely from further operations in the State of Missouri and the Grand Lodge Knights of Pythias of Missouri assumed full and complete jurisdiction over the various subordinate lodges of the order in Missouri, among which was Mound City Lodge No. 4, of which the insured was then a member, and assumed, too, the obligations of the Supreme Lodge to its members on certificates of insurance, and all of the members, among them the insured, James Williams, agreed to this arrangement. Thereafter the insured paid all of his assessments and dues on his certificate, as a member of the order, to the Grand Lodge of the State of Missouri, so incorporated and operating under our statutes, and performed all the conditions imposed by the contract on his part until the date of his death, which occurred November 7, 1909. During all of those years the insured retained his original certificate of insurance issued to him by the Supreme Lodge in 1892 and at no time surrendered it to or requested a new certificate in lieu thereof from the Grand Lodge of the State of Missouri, under whose jurisdiction he had come and which had undertaken, with his consent, to assume the obligation of the Supreme Lodge in that behalf.
By his last will, the insured, James Williams, appointed the plaintiff, Abraham Gibbs, as his sole legatee thereunder and also nominated him as the executor of the will. It may be that it was competent for the insured to thus dispose of the benefit under the original certificate, but it is admitted that Gibbs, the recipient of the bounty as designated in the will, is not a member of the family of the insured nor related to him by blood or otherwise nor dependent upon him in any manner and is, therefore, not within the class of persons authorized to take such benefits under our statute. As before stated, the suit proceeds against both the Supreme Lodge, incorporated in the District of Columbia, which originally issued the certificate, and the Grand Lodge, incorporated in Missouri, as if it assumed its payment. Though both defendants were duly served, the Supreme Lodge did not appear but suffered...
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