Green v. Green

• Decision Date: 16 March 1912
• Citation: 144 S.W. 1073,147 Ky. 608
• Parties: GREEN v. GREEN.
• Court: Kentucky Court of Appeals

144 S.W. 1073

147 Ky. 608

GREEN v. GREEN.

Court of Appeals of Kentucky.

March 16, 1912

Appeal from Circuit Court, Grayson County.

Action by Martha J. Green against the Modern Woodmen of America and Nancy K. Green.The first-named defendant paid the amount of a policy into court.From a judgment for plaintiff, defendant Green appeals.Affirmed.

J. C Graham, Chas. V. Higdon, and O'Doherty & Yonts, for appellant.

Chas P. Johnson and J. M. Campbell, for appellee.

CLAY C.

Joseph T. Green was a member in good standing of the Modern Woodmen of America, a fraternal insurance society.On August 8, 1908 the society issued to him a benefit certificate for $1,000 wherein appellant, Nancy K. Green, then his wife, was named as beneficiary.In January, 1910, appellant, Nancy K. Green, obtained a divorce from Joseph T. Green.On August 30, 1910, Joseph T. Green died.The Modern Woodmen of America is a corporation organized and existing under the laws of the state of Illinois, with power to conduct a fraternal life insurance business.It is under the supervision of a grand or supreme body, and procures members through the lodge system exclusively.It pays no commissions and employs no agents, except in the organization of the local or subordinate lodges or council.

The laws of Illinois, under which the society, was incorporated, provide as follows:

"Payment of death benefits shall only be made to the families, heirs, blood relatives, affianced husband or affianced wife or to persons dependent upon the member."Hurd'sRev. St. 1909, c. 73, § 258.

The by-laws of the society contain the following provisions:

"Sec. 45.Benefit certificates shall be made payable only to the wife, surviving children, or some other person or persons specifically named in said benefit certificate as beneficiary, who are related to the member as heir, blood relative, or person dependent upon him or member of his family whom the applicant shall designate in his application.No payment shall be made upon any benefit certificate to any person who does not bear such relationship as wife, surviving child, heir, blood relative or person dependent upon or member of the family of the member at the time of his death.

"Sec. 46.If the death of a beneficiary of any member heretofore or hereafter adopted shall occur prior to the death of such member, or in the event of the disqualification of the beneficiary under the provisions of section 45 hereof, and if such member has failed to have another beneficiary named as provided in section 47 hereof, then the amount to be paid under the benefit certificate shall be payable to the surviving beneficiaries, if any there be, or if no beneficiaries survive him, then to the widow; if no widow, to his children, including his legally adopted children, and in case there are deceased children or child, the children or child of such shall take the share of such deceased parent; if no children or child of the deceased children or child, to the mother; if no mother, to the father; if no father, to the brothers and sisters, share and share alike, and in case there are deceased brothers or sisters, then to the children or child of such, who shall take the share of such deceased parent; if no brothers or sisters or children or child of any deceased brother or sister, then to the next of kin, who would be the distributees of the personal estate of the member upon his death intestate according to the laws of the state wherein said member resided at the time of his death."

"Sec. 49.The contract for beneficial membership between the society and its beneficial members shall include the application for beneficial membership, the medical examination furnished by the applicant, the benefit certificate issued thereupon, and the by-laws of the society as they exist at the time of the issuance of the certificate, or as they may be thereafter amended, modified or changed; all with the same force and effect as written into the face of the benefit certificate.This provision shall be construed not only to govern the rights and conduct of the member, but also to determine the financial liability of the member to the society and of the society to the member and his beneficiary or beneficiaries."

This action was instituted by Martha J. Green, the mother of the decedent member, against the Modern Woodmen of America and Nancy K. Green, for the purpose of recovering the proceeds of the benefit certificate.In addition to setting forth the above facts, the petition charged that Nancy K. Green and James T. Green were divorced, and that they entered into a written contract by which James T. Green transferred to Nancy K. Green certain property, money, etc., which she agreed to and did accept in full satisfaction of all claims she then had or might have to any part of his property.The petition further alleged that the decedent had no children, or child or descendant of any child, at the time of his death; that his father was dead at the time; that he had not adopted any child; and that appellant, as his mother, was entitled to the proceeds of the benefit certificate.The Modern Woodmen of America paid the proceeds of the certificate into court to abide the result of the suit.Appellant, Nancy K. Green filed an answer in two paragraphs.In the first paragraph she denied that appellee, Martha J. Green, was entitled to the proceeds of the certificate, and in the second paragraph she alleged, in substance, that under the terms of the decedent's contract with the Modern Woodmen of America he had the right expressly reserved to him to change the beneficiary in the certificate, and to name another and different beneficiary, but that he declined and refused to do so, and elected to keep the certificate in force for appellant's benefit.She further alleged that, while she had instituted an action for and obtained a divorce from James T. Green, she had done so only after he had persevered in a course of misconduct towards her, and after he had failed to discharge any of the duties incumbent upon him as a husband, and he well understood that the proceedings were only had as the last resort; that she did not in fact desire any separation; that after the divorce was granted he changed his course of conduct and living, and there came into existence between them a tacit agreement to the effect that, as soon as he showed that he intended in good faith to reform his course of living, ...