Graham v. Allison

• Decision Date: 08 February 1887
• Citation: 24 Mo.App. 516
• Parties: E. D. GRAHAM, ADMINISTRATOR OF C. W. ALLISON, DECEASED, Respondent, v. SAMUEL ALLISON, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 516

E. D. GRAHAM, ADMINISTRATOR OF C. W. ALLISON, DECEASED, Respondent,

v.SAMUEL ALLISON, Appellant.

Kansas City Court of Appeals, Missouri.

Feb. 8, 1887.

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Reversed and remanded.

Statement of case by the court.

This is a suit to have the circuit court construe the will of C. W. Allison, deceased, and direct the administrator as to the disbursement of a certain fund held by him. The petition is as follows, omitting the caption:

“Plaintiff states that C. W. Allison departed this life on or about January 18, 1883. That before his death he made his last will and testament, and, after bequeathing to Miss Ellen Slaughter the sum of fifteen hundred dollars therein, he directed that the balance of his property, of all kinds, be divided between his brother and sister, as the law directs. That said last will and testament was in due time admitted to probate, and adjudged to be a will by the probate court of Audrain county, Missouri, and the said plaintiff was duly appointed administrator, with will annexed, of said estate, who has duly qualified as such administrator, and is now in the discharge of his duties as such administrator. That the said deceased left surviving him, as his only heirs-at-law, the said S. E. Allison, his brother, the said Annie Allison, his sister, and the said Samuel Allison, his father. That the said Annie Allison has been adjudged to be of unsound mind, and the said H. A. Ricketts is her guardian, duly appointed and qualified. That at the time of the death of the said C. W. Allison he had two life policies in the Masonic Mutual Benefit Society of Indiana--one for the sum of fifteen hundred dollars, the other for the sum of two thousand, five hundred dollars--making a total of life insurance in the sum of four thousand dollars. That each of said policies was a covenant and agreement between the said insurance company and the said C. W. Allison, deceased, his executors and administrators, to pay to the legal heirs of the said C. W. Allison, unless ( otherwise) provided for by will, the said amounts. That in a suit at law for that purpose the said plaintiff collected the said amount from the said insurance company, and now holds the same, less the expenses of said suit and its proportionate part of the expenses of the said administration. That there was sufficient property to pay the said legacy to the said Miss Slaughter, and all of the debts of said deceased, and said balance of the amount collected on said insurance is to be distributed. That there is some question in the mind of the administrator as to the true intent of said will, taken in connection with the said insurance policies, as to whether said last will and testament undertakes to bequeath to said brother, S. E. Allison, and said sister, Annie Allison, each one-half of the money collected on said insurance policies, or whether the said money should be divided between the heirs of said deceased. That there is likely to arise between the said heirs-at-law a dispute as to how said money should be distributed. Wherefore plaintiff asks the court to justly construe said last will and testament, and declare the rights of the said devisees, legatees and heirs thereunder, and direct the proper distribution of said money.”

The defendants, the said Samuel Allison, and the brother and sister of the testator named in the will, though duly summoned, made no answer to the petition. At the trial the plaintiff read in evidence two certificates, which are alike, except as to the dates and amounts. The certificate is as follows:

“This Certificate of Membership, witnesseth:

That the Masonic Mutual Benefit Society of Indiana, in consideration of the representation made to it, in the application for membership (which by reference is made a part hereof) and the sum of six dollars to it in hand paid by Charles W. Allison, of Mexico, Mo., and the sum of one and ten hundredths dollars, to be paid to the secretary of the society, or to his accredited agent, by the said Charles W. Allison, within ten days after due notice has been served upon him of the death of a member of the society, as provided in the by-laws of the society, the said society does promise to, and agree with the said Charles W. Allison, his heirs, executors, administrators and assigns, well and truly to pay to his legal heirs, unless otherwise provided for by will of the said Charles W. Allison, within sixty days after due notice and satisfactory evidence of the death of the said Charles W. Allison, and proof of interest, if assigned or held as security, the sum of seventy cents for every member of the society, belonging to the first class (as shown in the margin of the certificate) at the time of the death of the said Charles W. Allison, and the sum of seventy-five cents for every member of the second class, and the sum of ninety-five cents for every member of the third class, and the sum of one dollar and sixty cents for every member of the fourth class. Provided, the aggregate amount of benefits, payable under this certificate, shall not exceed the sum of twenty-five hundred dollars.”

The court found that, by the terms of the will, the fund so held by the administrator belonged to the said Annie and S. E. Allison in equal parts, and directed the administrator to pay the same over to them accordingly. From this judgment the said Samuel Allison prosecutes this appeal.

HITT & DUNCAN, for the appellant.

I. The court had no authority or jurisdiction to construe the will in this case: (1) Because the will was not set out in the petition, nor was the original, or a copy thereof, introduced in evidence, or shown to the court. (2) Because the circuit court had no original jurisdiction of this cause. Rev. Stat., sect. 1176; Jackson v. Jackson, 4 Mo. 210; Miller v. Iron County, 29 Mo. 122; Pearce v. Calhoun, 59 Mo. 271; Brant's Will, 40 Mo. 276.

II. The said Masonic Mutual Benefit Society is a mutual benefit society under the law. State ex rel. Attorney General v. Merchant's Exchange Benevolent Society, 72 Mo. 146.

III. To divert the payment of the fund now in controversy, from the beneficiaries named in said certificates of membership, there should have been an express direction by the said C. W. Allison, in his will, for that purpose. No general devise or provision in his will was an exercise of his power of appointment over the fund in the hands of the plaintiff. Arthur et al. v. Odd Fellows' Benevolent Association, 29 Ohio St. 557; 4 Kent. Com. (12 Ed.) star pp. 334, 335, 329; top pp. 345, 346, 340; Order of Red Men v. Clendenin, 44 Md. 429; Greeno v. Greeno, 23 Hun, 478; Duvall v. Goodson, 79 Ky. 124; Sugden on Powers, 282; Bloggs v. Mills, 1 Story C. C. 426, 445.

IV. The fund in question, arising out of said certificates of membership, and now in the hands of plaintiff, could, in no event, have been property of the testator, C. W. Allison; nor could it have been claimed by his administrator as assets belonging to the estate. Arthur et al. v. Odd Fellows' Benevolent Association et al., 29 Ohio St. Rep. 557; 4 Kent Com. (12 Ed.) star p. 335, top p. 346; Sugden on Powers, 282, and notes; Mory v. Michael, 18 Md. 227-241; Johnson v. Stanton, 30 Conn. 297; Bingham's Appeal, 64 Pa. St. 345.

V. There is nothing showing an assignment of the fund in question, arising out of said certificates of membership to the said Annie Allison, or S. E. Allison, by the said C. W. Allison. Cases last cited.

VI. The said Annie Allison and S. E. Allison were provided for by the will of the deceased, but the appellant, Samuel Allison, was not, nor was his name mentioned in the will. For this reason the whole of the fund in controversy should go to him.

VII. The policies state that the fund now in the hands of the administrator should go to the legal heirs of C. W. Allison, unless provided for by will. Annie Allison, S. E. Allison, and Samuel Allison, the appellant, are the legal heirs. Annie Allison and S. E. Allison were provided for by said will. Does the phrase, unless provided for by his will, have reference to the legal heirs, or to the fund in question? One may, by will, provide for an heir, but he would hardly provide for insurance money; he might attempt to dispose of it, but the certificates of membership do not say, unless otherwise disposed of by will. The object of a will is to provide for the persons or institutions which are to be the beneficiaries under the will, and if the phrase, unless provided for by will, had been intended to have reference to the fund in question, and not to the legal heirs, there would have been used in its stead the phrase, unless otherwise disposed of by will, which was not done. And, as further evidence that the phrase had no reference to the fund in question, the testator made no reference to it in his will, nor to make such a provision by will was he required to have the assent or approval of the said mutual benefit society, which is always required by such companies, or societies, where the assured, or member, attempts to exercise his power of appointment over the fund. If this position be correct, we submit that the appellant, Samuel Allison, is entitled to the whole fund in controversy.

GEORGE ROBERTSON, for the respondent; F. C. BRYAN, for the legatees.

I. The objection that the will was not set out in full in the respondent's petition is too late. If there were anything in this objection it should have been raised by demurrer. There is no pretense that the petition does not state the contents of the will sufficiently and does not follow the language of the will sufficiently to present clearly that portion of the will which requires construction in this case. The petition is taken as true by no answer being filed to deny it, and, consequently, unless some part of the petition, wherein the provisions of the will, as set out, are denied, there was no object in presenting the will to the court in the...