Heinzman v. Whiteman, 11553.
| Decision Date | 08 May 1923 |
| Docket Number | No. 11553.,11553. |
| Citation | 81 Ind.App. 29,139 N.E. 329 |
| Parties | HEINZMAN v. WHITEMAN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.
Action by William F. Whiteman, administrator, against the Supreme Tribe of Ben Hur, in which defendant interpleaded, admitting liability and asking that Charles F. Heinzman, guardian of Louis Heinzman and others, be substituted as defendants. From judgment for plaintiff, Heinzman, guardian, appeals. Affirmed.
P. C. Fergus, John Yeagley, and Walter R. Arnold, all of South Bend, for appellant.
Louis M. Hammerschmidt and Walter A. Rice, both of South Bend, for appellee.
Appellee, as administrator of the estate of Sherman Lammedee, deceased, filed his complaint against the SupremeTribe of Ben Hur, a fraternal benefit society, to recover on a certificate of insurance, issued by it to said decedent. Said Supreme Tribe filed a bill of interpleader, admitting its liability, and alleging that appellant, as guardian of Louis, George, and Glen Heinzman, was claiming the proceeds of said certificate; that it was impartial and disinterested as between said claimants, and desired permission to pay the money into court, pending a determination of the rival claims thereto. The money was paid into court, and thereupon an order was entered discharging the insurer, and directing that the wards of appellant be made parties defendant. Appellant, as such guardian, thereafter filed an answer to appellee's complaint, and also a cross-complaint against appellee, upon which issues were duly joined. A trial resulted in a judgment in favor of appellant, which was reversed on appeal. Whiteman v. Heinzman (1920) 72 Ind. App. 385, 124 N. E. 405, 126 N. E. 245. After the cause was remanded for further proceedings, appellant filed a second amended cross-complaint, which alleged, in substance, among other things, that he is the duly appointed, qualified, and acting guardian of Louis, George, and Glen Heinzman, who are minors; that on September 27, 1900, the Supreme Tribe of Ben Hur issued to one William T. S. Lammedee, otherwise known as Sherman Lammedee, a certificate of insurance in the sum of $1,500, payable to Laura I. Lammedee, who was then the wife of the insured; that said certificate is as follows (here follows a copy of the same, which contains, among others, this provision: “This certificate is issued subject to, and to be construed and controlled by the Laws, Rules and Regulations of the Order, now in force, or which may hereafter be adopted”); that sections 118 and 119 of the by-laws of said Supreme Tribe, in force during all the times therein mentioned, provide as follows:
***”
It is further alleged, in substance, among other things, that on May 2, 1900, said Laura I. Lammedee died, and the insured thereafter, on January 10, 1910, by his written change of beneficiary, designated Jane Lammedee as the beneficiary under said certificate; that on October 13, 1914, said Jane Lammedee died, and thereafter on November 14, 1914, said insured executed his written change of beneficiary, designating said Louis, George, and Glen Heinzman, as beneficiaries under said certificate, which said written change of beneficiary is as follows (here follows copy of same instrument set out in former opinion of this court, and designated “change of beneficiary”); that said written change was attached to the back of said certificate, and was executed by the insured signing his name in ink, as it appears on the face thereof, and by inserting in said written change the full names of the new beneficiaries; that the signature of the insured thereto was duly attested by the scribe of the court of said Supreme Tribe of which the insured was a member, and the insured paid said scribe the required fee of 50 cents, in order to effect such change; that the insured thereupon executed the following written request for a change of beneficiary in his certificate (here follows copy of the request, bearing date of November 20, 1914, set out in former opinion of this court); that said local scribe thereupon forwarded said fee and written request, together with the insured's certificate, and the instrument attached thereto, making a change in the beneficiary, to the Supreme Scribe of the insurer for the approval and official indorsement of such change; that the said Louis, George, and Glen Heinzman were each minors at the time of such change of beneficiary, and, during all the time until his death, were dependent on him in this: That their parents were wholly without property, and during a great portion of the time were unable to procure work; that they had no means or income with which to support and educate their said children; that said decedent, prior to the time he named them as beneficiaries in his said certificate, and continuously thereafter until his death, contributed to their support and education by purchasing for each of them food, clothing, and school books, and paying other expenses incident thereto; that said children would not have had sufficient food and clothing for their support, and would not have been able to attend the public schools, without the aid furnished them by the insured, as their parents could not make the necessary provisions therefor; that, by reason of the facts alleged,said children were continuously dependent upon the insured for their support and education; that all of said children were living in the homes of their parents, and the insured made his home with the parents of George and Glen Heinzman; that said Louis Heinzman was a nephew of the insured, and his parents were having domestic trouble and were estranged at the time said change of beneficiary in said certificate was made, as the insured at the time well knew; that after the insured had executed said written instrument, in which he had named said children as beneficiaries, and before the Supreme Scribe had approved such change, the insured died; that prior to his death he did all things necessary on his part to be done, as required by the by-laws, rules, and regulations of the insurer, and by the statutes of the state of Indiana, in order to perfect said change of beneficiary. Prayer that the $1,500, paid into court by said Supreme Tribe on said certificate, be paid to appellant as guardian for the benefit of his said wards. Appellee filed a demurrer to this amended cross-complaint for want of facts, which was sustained. Appellant refusing to plead further, judgment was rendered against him, and this appeal followed.
[1] It will be observed that the cross-complaint under consideration alleges that said Supreme Tribe of Ben Hur, which issued the certificate of insurance in suit, was a fraternal benefit society. It is well settled that the beneficiaries named in such certificates may be changed by the members to whom they are issued, free from all limitations or restrictions, except those imposed by law, or such as are imposed by the articles of incorporation or the by-laws of the society, or by the terms of the certificates themselves. In other words, since the provision of any statute affecting such a certificate, as well as the articles of incorporation and by-laws of the association, become a part of the contract of insurance, the general rule may be said to be that the holder of such a certificate has the right to change the beneficiary named therein, unless the contract provides to the contrary. Masonic, etc., Society v. Burkhart (1886) 110 Ind. 189, 10 N. E. 79, 11 N. E. 449;Presbyterian, etc., Fund v. Allen (1886) 106 Ind. 593, 7 N. E. 317;Holland v. Taylor (1887) 111 Ind. 121, 12 N. E. 116;Milner v. Bowman (1889) 119 Ind. 448, 21 N. E. 1094, 5 L. R. A. 95;Mason v. Mason (1902) 160 Ind. 191;65 N. E. 585;Bunyan v. Reed (1904) 34 Ind. App. 295, 70 N. E. 1002;Carpenter v. Knapp, 101 Iowa, 712, 70 N. W. 764, 38 L. R. A. 128;Martin v. Stubbings, 126 Ill. 387, 18 N. E. 657, 9 Am. St. Rep. 620;Delaney v. Delaney, I75 Ill. 187, 51 N. E. 961;Royal Arcanum v. Behrend, 247 U. S. 394, 38 Sup. Ct. 522, 62 L. Ed. 1182, 1 A. L. R. 966.
[2] It is clear that, where no mode for making a change in the beneficiary is prescribed, the same may be effected in any way the insured may choose, so long as he expresses a clear intent to make the change, 29 Cyc. 130; 14 R. C. L. 1390. However, where the mode is prescribed, it must be followed, as a general rule, in order to render such change effective. This is true whether the right involved exists by reason of a reservation in the insurance contract, or by reason of the absence of a vested interest in...
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