Hainer v. Iowa Legion of Honor

• Citation: 43 N.W. 185,78 Iowa 245
• Parties: HAINER et al. v. THE IOWA LEGION OF HONOR
• Decision Date: 02 October 1889
• Court: United States State Supreme Court of Iowa

43 N.W. 185

78 Iowa 245

HAINER et al. v. THE IOWA LEGION OF HONOR

Supreme Court of Iowa, Des Moines

October 2, 1889

Decided October, 1889

Appeal from Carroll District Court.--HON. J. P. CONNER, Judge.

ACTION upon a certificate of life insurance. The case was submitted upon an agreement that the pleadings and stipulations should constitute an agreed statement of facts. The pleadings show that the plaintiffs are executors of the last will and testament of H. J. Gabel, deceased; that the Iowa Legion of Honor is an incorporated beneficiary society, having for its objects the promotion of fraternity, and to afford financial aid and benefits to the widows, orphans and devisees of deceased members; that section 1, article 7, of the constitution provides that, upon the death of a member in good standing, "such person or persons as said member may have directed, and subject to the limitation of article 1, section 2, shall be entitled to receive of the beneficiary fund of this order the sum of two thousand dollars." It is also provided in section 11, article 8, that "any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing, on the back of his certificate, in form prescribed, attested by the recording secretary, with the seal of the lodge attached, and the recording secretary shall at once report such action to the grand secretary." On February 27, 1885 (the said H. J Gabel then being in full life and unmarried), the said society duly issued to him a certificate of membership entitling him "to participate in the beneficiary fund of the order to the amount of two thousand dollars, which sum shall, at his death, be paid to his mother, Mrs. Josephine M Gabel," which certificate remained and was in full force at the time of the death of said H. J. Gabel. Upon the back of the certificate was a printed blank for revoking the former direction as to the payment of the beneficiary fund, and directing such payment to be made to another than the one named in the certificate. Thereafter, said H. J. Gabel married. On the tenth day of October, 1887, H. J. Gabel departed this life, leaving his wife, Hermine H., and their daughter Alice, surviving him. On the thirteenth day of September, 1887, he made and published his last will and testament, containing, among other provisions, the following: "Second. I give and bequeath to my mother one-half of my two thousand dollars life insurance in the Iowa Legion of Honor, to be invested for her for a yearly income, and at her death to revert to my daughter Alice. Third. I give and bequeath to my daughter Alice one-half of the two thousand dollars life insurance in the Iowa Legion of Honor. Sixth. I give and devise to my mother an undivided interest in our residence property at LeClaire, Iowa." The Iowa Legion of Honor made a voluntary appearance, and paid to a custodian appointed by the court the sum of two thousand dollars; and it was stipulated between all the parties that said society should be released from all liability to either party. The plaintiffs, answering Josephine Gabel's petition of intervention, allege that she is estopped from making any claim to said fund, because, when the certificate was issued, the deceased was an unmarried man, having no children; that his wife and child, surviving him, were without any separate means of support, and entirely dependent on said deceased for maintenance; that intervenor had, prior to the decease of said H. J. Gabel, full knowledge of the provisions of said will, and made no objections thereto, but at all times expressed her acquiescence in the same, whereby the deceased was induced to and did rely upon said expressions, and made no other disposition of his estate; that intervenor has availed herself of the property conferred upon her by said will, occupying the premises devised to her, and claiming and controlling the same as her own. Intervenor demurred to the second count of plaintiffs' answer to her petition on the ground that the facts stated did not constitute an estoppel, which being submitted, the court withheld its ruling thereon, and thereupon the case was fully submitted on the agreed statement of facts. On the same day, and after submission of the case, intervenor filed an amendment to her demurrer, which plaintiffs move to strike, on the grounds that the same was filed after the demurrer was fully argued and submitted, which motion was overruled. Judgment was entered in favor of intervenor, from which judgment plaintiffs appeal.

REVERSED.

E. J. Hainer and F. M. Powers, for appellants.

Beach & Hoyt, for appellees.

OPINION

GIVEN, C. J.

I.

If there was error in permitting intervenor to file the amendment to her demurrer, or in overruling plaintiffs' motion to strike said amendment, it was without prejudice, as the amendment presented no new or additional objections to the second count of the petition to those presented in the demurrer itself.

II. As the questions raised by the demurrer are the same as those presented by the agreed statement of facts, the ruling on the demurrer will not be separately considered. Two questions are presented by the facts: First. Could the deceased make a new direction, as to the person to whom the beneficiary certificate should be paid, by will? Second. Is intervenor estopped, by reason of the facts, from claiming as beneficiary under the certificate?

III. Plaintiffs' contention is that section 11, article 8 Constitution Iowa Legion of Honor, is merely permissive, and not mandatory, as to the manner of making a new direction of who shall be beneficiary under the certificate. Intervenor contends that the manner of making the change is a part of the contract, and that the change can only be made in the manner provided in said section 2. Stephenson v. Stephenson, 64 Iowa 534, 21 N.W. 19, is a case wherein Robert Stephenson, at his death, held a certificate in the Northwestern Masonic Aid Association, wherein his wife, Rachel, and daughter, Mary Ann Denoon, were named beneficiaries. The by-laws of that association...