Hirschl v. Clark

• Citation: 47 N.W. 78,81 Iowa 200
• Parties: HIRSCHL ET AL. v. CLARK.
• Decision Date: 20 October 1890
• Court: Iowa Supreme Court

81 Iowa 200

47 N.W. 78

HIRSCHL ET AL.

v.CLARK.

Supreme Court of Iowa.

Oct. 20, 1890.

Appeal from district court, Scott county; ANDREW HOWATT, Judge.

This is an equitable proceeding, the object of which is to determine the rights of the parties to the proceeds of a benefit certificate, issued by the Iowa Knights of Pythias Insurance Association upon the life of William Burrows, deceased. The plaintiff claims the said proceeds as trustee for the mother and other relatives of the deceased, and the defendant Mary Burrows claims that she is the lawful beneficiary of the fund, and that it should be paid to her. The insurance association made no contest as to the validity of the certificate, and, by agreement of all parties, the money due from the association was paid to A. J. Hirschl, Esq., and by proper pleadings Clark, the trustee, and said Mary Burrows presented their respective claims to said proceeds. The district court held that Mary Burrows was the lawful beneficiary, and ordered the proceeds to be paid to her. J. H. Clark, trustee, appeals.C. W. Haller and G. H. Koch, for appellant.

Bills & Hass, for appellees.

ROTHROCK, C. J.

1. The insurance was effected in October, 1882. The contract of insurance was made upon an application, of which the following is a copy: “I, the undersigned, desire to become a member of the Iowa Knights of Pythias Insurance Association, and hereby certify that I will true answers make to all questions, and, to the best of my knowledge and belief, will not conceal or omit to state anything regarding my health, past or present, affecting the expectancy of my life, and agree that any untrue or fraudulent statements made in this application, or to the medical examiner, or any concealment of facts by me made, or my suspension from my lodge, or voluntarily severing my connection with this association, shall forfeit all right, claim, and interest, and all right, claim, and interest of my heirs, executors, administrators, and assigns, in and to all benefits and privileges of the association. I direct that all benefit to which I may be entitled from the association be paid to Mary Burrows, related to me as wife, subject to such future disposal of the benefits as I may hereafter direct. [Signed] WILLIAM BURROWS. [Signature of applicant].” The benefit certificate issued by the association was in these words: “No. 142. Duplicate. $2,000. Iowa Knights of Pythias Ins. Association. Benefit Certificate. This certifies that Knight William Burrows is a member of the Iowa Knights of Pythias Insurance Association located at Marshalltown, Iowa, and upon condition that the statements made by him in his application for membership in said association, and the statements certified by him to the medical examiner, were true at the time of making thereof, and that they be made a part of this contract, and upon the further condition that the said member complies in the future with the laws, rules, and regulations now enacted, or which may hereafter be enacted, to govern said association, then the said Iowa Knights of Pythias Insurance Association hereby promises and binds itself to pay out of the funds of said association to Mary Burrows [wife] a sum not exceeding two thousand dollars, in accordance with and under the provisions of the law governing said association, upon satisfactory evidence of the death of said member, and upon the surrender of this certificate: provided that said member is in good standing in said association at time of death. In witness whereof, the Iowa Knights of Pythias Insurance Association has hereun to affixed its seal, and caused this certificate to be signed by its president, and attested and recorded by its secretary at Marshalltown, Iowa, this 7th day of October, A. D. 1882. [Signed] BRYAN A. BEESON, President. E. H. HIBBEN, Secretary. [Seal.]”

William Burrows died at the city of Davenport, in this state, on the 26th day of April, 1888. On the 21st day of said month, he executed an instrument in writing, in these words: “I hereby surrender the benefit certificate issued to me, William Burrows, by the Iowa Knights of Pythias Insurance Association, and direct a new one to be issued to me, payable five hundred (500) dollars to Elizabeth Burrows, related to me as mother, and five hundred (500) dollars to my sister, Mrs. Gill, the balance to pay my legal debts; and the balance to John Sandry, wife, two children, and nephew, Frank McCoon, share and share alike. All in trust to Joseph H. Clark to be carried out as directed. Witness my hand and seal April 21st, 1888. [Signed] WILLIAM BURROWS. Signed by WILLIAM BURROWS in presence of D. C. GARRETT, C. O. ANDERSON, E. L. RAFF.” There is no controversy about the execution of this paper, and, although it appears that Burrows was quite feeble at the time he signed the same, there is no evidence that it was not his voluntary act, or that those who were present and prepared the paper, and witnessed the signature, used any influence or persuasion to induce him to sign it. They were present at his request for the purpose of aiding him in carrying out his desire to change the beneficiary in the certificate. One of said persons testified as a witness as follows: “I got home that morning from a three weeks' absence. Mr. Burrows sent for me, and said he wanted to change his policy to his mother and sisters, and wanted to know whether or not I could do anything for him. He said he had one policy he expected to leave to his wife, and the other policy he would rather have changed. He said his mother and sisters were as much entitled to it as his wife, on account of the treatment he had had lately. He said he was afraid to stay in the house after the policy was changed. I said I did not know much about it, but would go and see Clark. I went to Clark, and we went to Heinz & Hirschl to see about having the policy changed.” Another testified as follows: “I was summoned to the sick-bed of Wm. Burrows, and he urged me to assist in making this change; that he had long intended to make the change, but his wife had prevented him from doing it, and he wanted me to help him with it, which I promised I would do, and when the paper was brought, there were some minor changes to be made.” It further appears in evidence that the said paper was placed in the mail at...