Grand Lodge Order of Hermann-Soehne v. Elsner

• Decision Date: 03 May 1887
• Citation: 26 Mo.App. 108
• Parties: GRAND LODGE, ORDER OF HERMANN-SOEHNE, v. YETTEL ELSNER, Respondent; JOHANNA P. ELSNER, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 108

GRAND LODGE, ORDER OF HERMANN-SOEHNE, v. YETTEL ELSNER, Respondent; JOHANNA P. ELSNER, Appellant.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

TORREY & GIVAN, for the appellant: The parties were entitled to a trial by jury. Story, Eq. Plead., sects. 297, 362; Bank v. Bangs, 2 Paige Rep. 570; Angell v. Hadden, 16 Ves. 203. The terms, " widow," " wife," and " husband," do not, necessarily mean the lawful widow, wife, or husband. Howe's Goods Eng. H. Ct. Prob. Div. 48 J. P. 743 (19 Cent. Law Jour. 479); Kelly v. Johnson, 2 Johnson Cases, 29 (1 Am. Dec.) 154; Hardy v. Warren (Mass.), 18 Cent. Law Jour. 268. If the marriage was illegal in its inception, his continuing to live with her, after the disability expired made her his lawful wife. Johnson v. Johnson, 45 Mo. 595; 1 Black. Com. 436; Coke's Littleton, 79; Bishop on Mar. and Div., sect. 140; Shelf. on Mar. and Div. 197; Wightman v. Wightman, 4 Johns. Ch. 343; Donnelly v. Donnelly, 8 B. Mon. (Ky.) 113. The supreme court of Missouri has gone a long way to sustain irregular marriages. As to Indian marriages, see: Johnson v. Johnson, 30 Mo. 72; Boyer v. Dively, 58 Mo. 511; La Revier v. La Revier, 77 Mo. 512. As to marriages without ceremony, see Cargyle v. Wood, 63 Mo. 501; Dyer v. Brannock, 66 Mo. 391. In New York, under a statute somewhat similar to ours, it was held, in Vallean v. Val lean (6 Paige's Ch. 207), that such a marriage as the one under discussion is not void, but voidable, merely; and, further, that said marriage can be declared void only on the application of one of the parties, and that it can not be declared void collaterally, after the death of either party. Cropsey v. McKenney, 30 Barb. 47; Cropsey v. Ogden, 11 N.Y. 228. A widow who has lived apart from her husband for twenty-three years; who was not a member of his family, nor dependent on him during the time of his membership, is not entitled to any benefits arising from such membership. Berlin v. March, 82 Pa.St. 166; Durian v. Central Verein, 7 Daly 168. In benevolent societies, the power of the member, as to the fund to be paid at his death, is a power of appointment, which is revocable, and the member may change his beneficiary, unless prohibited by the laws of the order, and the change may be made by will. Durien v. Central Verein, 7 Daly 168; Splawn v. Chew, 60 Tex. 532; Swift v. Conductors' Association, 96 Ill. 309; Tenn. Lodge v. Ladd, 5 Lea 716; Pres. Assurance Fund v. Allen (Ind.), 4 West. Rep. 716; Coleman v. Supreme Lodge, 18 Mo.App. 189; Davidson v. Supreme Lodge, 22 Mo.App. 263; Sup. Council v. Priest, 46 Mich. 429; Hellenberg v. I. O. B., 94 N.Y. 580; Red Men v. Clendennin, 44 Md. 429; Aid Society v. Lewis, 9 Mo.App. 412. A special devise in a will, so far as concerns the rights of others than the society, is a valid execution of the power, regardless of its rules. Splawn v. Chew, 60 Tex. 532; Hellenberg v. I. O. B., 94 N.Y. 580; Sup. Council v. Priest, 46 Mich. 429; Aid Society v. Lewis, 9 Mo.App. 412; Tenn. Lodge v. Ladd, 5 Lea 716; Swift v. Conductors' Ass'n, 96 Ill. 309.

AUGUSTUS BINSWANGER, and BOYLE, ADAMS & MCKEIGHAN, for the respondent.

OPINION

ROMBAUER J.

The plaintiff filed a petition in the nature of a bill of interpleader, stating that it was a benevolent association; that one Jacob Elsner died May 3, 1885, and was, at the date of his death, a member, in good standing, of the plaintiff association, and that the laws of the society provide that, on the death of any member in good standing, it should pay to the widow of the deceased the sum of seven hundred dollars, and, in case there is no such widow, to his children, in equal parts.

The petition further states that there are rival claimants to such fund, who threaten to proceed against the plaintiff, and prays that the plaintiff have leave to pay the money into court, and that the claimants be ordered to interplead therefor.

The claimants, appearing, admitted that the bill was properly filed, and the plaintiff paid the money into court, and was discharged.

The two claimants, thereupon, filed their interpleas. The one filed by Johanna P. Elsner states that the sum of seven hundred dollars, by the laws of the order, is payable to the widow of the deceased member, if she has lived in matrimonial communion with him, or has supported his minor children; that she, the said Johanna, is the lawful widow of said Jacob Elsner, and that she had lived in lawful union with him from the time of their marriage until the date of his death, and supported his minor children; wherefore, she is entitled to said sum.

The interplea of Yettel Elsner states that the sum of seven hundred dollars is payable, by the laws of the order, to the widow of the deceased member, in case she shall have lived with the deceased in lawful union, or, in case she shall have supported the minor children of the deceased; that she, the said Yettel Elsner, is the lawful widow of the said Jacob Elsner, deceased, and had lived with the deceased in lawful union, and had supported his minor children; wherefore, she is entitled to said fund.

Both interpleas admit that Jacob Elsner died May 3, 1885; that he was, at the date of his death, a member, in good standing, of the plaintiff order; that, by reason of that fact, the plaintiff, by contract, was bound to pay to his widow the sum of seven hundred dollars, less funeral expenses.

Each interpleader filed an answer, denying the facts stated as a ground for recovery by the opposing interplea, with the exception of the facts admitted as above. The laws, rules, and regulations, of the plaintiff order, are not before the court, except as covered by the above admissions.

The court found in favor of the interpleader, Yettel, and the appellant, Johanna, complains of the following errors:

I. That the court refused, upon her request, to submit certain special issues to a jury.

It is not contended here that the court erred in refusing to frame special issues, but that the court erred in refusing a jury trial altogether, as there was no waiver of a jury trial, and thus it is incumbent upon us to decide whether the appellant was entitled to a trial by jury as a matter of right.

The constitution of this state, article 2, section 28, provides that: " The right of trial by jury, as heretofore enjoyed, shall remain inviolate." It refers to a right well known and defined by prior adjudications on that subject. That right never extended to issues in purely equitable proceedings. Conran v. Sellew, 28 Mo. 322; Ellis v. Kreutzinger, 31 Mo. 432. And the fact that the recovery of money is the object of the proceeding, does not change the rule. Weil v. Kume, 49 Mo. 158.

We are referred by the appellant to a number of decisions, holding that the mere interposition of an equitable defence does not deprive the plaintiff of his right to a trial by jury. Wolff v. Schaeffer, 4 Mo.App. 367; Kitchen v. Railroad, 59 Mo. 517; Carter v. Prior, 78 Mo. 222; Moline Plow Co. v. Hartman, 84 Mo. 614. Although even that proposition has not been held maintainable, where the answer, instead of setting up an equitable defence only, seeks affirmative equitable relief. Freeman v. Wilkerson, 50 Mo. 554. All these decisions, however, rest, for their foundation, on the principle, that the character of the action is determined by the petition, and not by the answer.

While actions of interpleader were always maintainable, at common law, in certain cases, this is not such a case. Story Eq. Jur., sect. 811. Neither is this one of the statutory proceedings, where the action, in its inception, is a mere action at law, and the proceeding, by interpleader, is engrafted upon it by statute. This action is one which, in its inception, clearly falls within the exclusive cognizance of courts of equity, and a court of equity, having thus acquired jurisdiction, will, according to fundamental rules applying to its proceedings, retain it, until it has disposed of all the issues by final decree, and has done complete justice to all the parties. Story, J., says: " An interpleading bill is considered as putting the defendants to contest their respective claims, just like a bill does, which is brought by an executor or trustee, to obtain the direction of the court upon the adverse claims of different defendants."

We are, therefore, clear that the court committed no error in refusing to submit special issues to a jury. The action being purely equitable, it was discretionary with the court whether it would do so, and such discretion can not be reviewed, on appeal.

II. The next error complained of is, that the court excluded declarations made by Jacob Elsner, as to his intent in effecting this insurance, and, also, excluded two wills made by Jacob Elsner, one in November, 1884, and the other in February, 1885, the last of which was duly probated, in both of which this benefit, with other property, was willed to the appellant, Johanna, who is described therein as his wife. In this ruling there was no error. The pleadings admit that this benefit, by the laws of the order of which the decedent was a member, was payable to his widow, who had lived with him in lawful union, or matrimonial communion. It is nowhere asserted, claimed, or even intimated, that the contract was different, or that Jacob Elsner could, under any rule, regulation, or custom, of the order, dispose of the benefit, or change the beneficiary, by will, or otherwise.

Nor does it appear that Jacob had, when he became a member of the order, any power, by any of its rules or regulations, to designate to whom this benefit should be paid. The beneficiary was designated by the laws of the order, which so far as the...