Holden v. Modern Brotherhood of Am.

• Decision Date: 05 July 1911
• Citation: 132 N.W. 329,151 Iowa 673
• Parties: HOLDEN v. MODERN BROTHERHOOD OF AMERICA (HOLDEN, INTERVENER).
• Court: Iowa Supreme Court

151 Iowa 673

132 N.W. 329

HOLDEN

v.MODERN BROTHERHOOD OF AMERICA (HOLDEN, INTERVENER).

Supreme Court of Iowa.

July 5, 1911.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Action by plaintiff as beneficiary named in a mutual benefit certificate in the defendant association issued to plaintiff's husband, Benj. P. Holden. The intervener, who is the mother of Benj. P. Holden, claimed the amount due under the certificate by virtue of an alleged change of beneficiary attempted to be made by him in her favor. There was a verdict for the intervener, and from judgment on such verdict the plaintiff appeals. Affirmed.Jamison, Smyth & Hann, for appellant.

Grimm & Trewin, for appellee.

Barnes & Chamberlain and Neville & Grier, for intervener.

DEEMER, J.

The certificate of membership in the defendant association issued to Benj. P. Holden as member, naming plaintiff as beneficiary, contained by reference to the by-laws of the association the following stipulation as to change of beneficiary: “Should a member in good standing desire to change his beneficiary or beneficiaries, such member shall deliver to the secretary for the subordinate lodge of which he is a member, his benefit certificate, with the surrender clause on the back thereof properly executed, designating therein the change desired, and the name of the person or persons, substituted as beneficiary, or beneficiaries, together with a fee of fifty cents. The execution of said surrender clause shall be in the presence of, and attested by, said subordinate lodge secretary. Provided, however, that if the member be so situated that he cannot execute said surrender clause in the presence of said secretary, the signature of the member thereto must be attested by the jurat of some person authorized to administer oaths. Said benefit certificate, with said fee of fifty cents, shall then be sent to the Supreme Secretary, who shall thereupon issue a new benefit certificate payable to the beneficiary or beneficiaries, named in said surrender clause. No change of beneficiary shall be effective until the old benefit certificate, and said fee of fifty cents, shall have been delivered to the Supreme Secretary and a new benefit certificate issued during the lifetime of the member. In case a benefit certificate is lost or destroyed, the owner thereof, may, in writing, on a form furnished by the Supreme Secretary, waive all claims thereunder, whereupon a new certificate will be issued upon request to the Supreme Secretary, upon the payment of fifty cents, said new certificate to be endorsed on the face thereof: ‘Duplicate Certificate issued in lieu of lost or destroyed certificate.’ ” There was also a provision as to the disposition of the benefit in case the beneficiary named should die before the death of the member if the member had failed to designate another beneficiary. The certificate in question was at one time in the possession of Benj. P. Holden in his home in Cedar Rapids, and was placed by him in a certain bookcase or secretary. He was subsequently taken ill, and on May 10, 1909, went to the home of his mother, the intervener, at St. Joseph, Mo., where he remained until his death which occurred on July 19th following. In the meantime, on June 11th, plaintiff stored the household goods in Cedar Rapids in order to go to her husband, and while doing so she removed the certificate from the bookcase or secretary and took it to a bank, where she personally left it for safe-keeping. On reaching her husband in St. Joseph, she explained to him the circumstances under which she had placed the certificate in the bank. On July 14th plaintiff's husband made an affidavit before a notary public as to his membership in the Cedar Rapids lodge of the defendant association, stating that the benefit in such certificate was payable to his wife, and reciting that “the said beneficiary certificate is not in his possession nor under his control but that the same is being withheld from him at this time,” and that, in consequence of said detention and withholding of his certificate, “he is unable to deliver same to the secretary of the above named lodge of which he is a member,” and that he thereupon makes application for a new certificate, naming Vesta V. Holden, related to him as mother, as substituted beneficiary, canceling and annulling said original benefit certificate. It was further recited in this affidavit that he was unable to travel, and for that reason unable to make oath to said affidavit in the presence of the secretary of the subordinate lodge of which he was a member. The signature to this affidavit purports to be witnessed by two witnesses, and to be subscribed and sworn to before a notary public. This affidavit, accompanied by 50 cents, the fee required for the purpose, was forwarded at the direction of the member to the office of the grand lodge at Mason City by a firm of attorneys at St. Joseph. It was received by the officer of the company on July 17, 1909, and on July 22d the secretary of said grand lodge wrote these attorneys a letter acknowledging the receipt of the affidavit, in which they advised that a duplicate certificate could not be issued, because it was not stated in the affidavit that the certificate had been destroyed. From this letter it appeared that the grand lodge had already been advised of Holden's death, and on the 26th of the same month the secretary wrote to the same attorneys to the effect that the beneficiary of the certificate had not been changed because the laws of the society were not complied with and inclosed the 50 cents which they had remitted.

Action was instituted by plaintiff against defendant by the filing of a petition in equity asking judgment for the amount of the certificate, and the defendant answered, admitting the membership of Holden, and the issuance of the certificate naming plaintiff as beneficiary, but alleging that Vesta V. Holden claimed some interest in the proceeds thereof under and by virtue of a written document executed by the member under date of July 14th attempting to change the beneficiary, and that defendant, although ready and willing to pay the amount of the certificate to the person to whom the money rightfully belonged, was unable to determine whether plaintiff or Vesta V. Holden was entitled to the whole or any part of the proceeds, and praying for an order of court bringing in as a party the said Vesta V. Holden in order that the defendant's interests might be protected. Thereafter Vesta V. Holden filed her petition of intervention in the action reciting the facts as already above stated, and alleged that prior to July 14, 1909, it was the purpose and intention of Benj. P. Holden to surrender and cancel said certificate and nominate intervener as the new beneficiary to be entitled to his interest in said fund, and for this purpose he demanded of plaintiff, the then beneficiary of said certificate, who was in sole possession thereof, that she return it to him in order that he might surrender it for cancellation; that the plaintiff, wrongfully and for the purpose of preventing said Benj. P. Holden from complying with the by-law requiring the return of the certificate for the purpose of cancellation and the issuance of a new certificate to the said Benj. P. Holden, refused to return the same; that for such reason he was unable to secure possession of the certificate and surrender it to defendant for cancellation; and that Benj. P. Holden was prevented from surrendering the certificate to the defendant for the reasons aforesaid. It is further recited that the only right of action which accrued or could accrue by virtue of the said certificate of Benj. P. Holden to his lawful beneficiary therein was a right of action in equity to compel defendant to levy upon its members the assessment provided for in said certificate, and pay the same to the original beneficiary. Therefore intervener prayed that a decree might be rendered establishing and confirming her right to receive the trust fund which the defendant had already paid into court to be held by the clerk subject to its order, that the petition of plaintiff be dismissed, and that intervener have judgment for costs and equitable relief. Plaintiff answered this petition of intervention by denying the material allegations thereof with reference to change of beneficiary. Intervener introduced testimony from two witnesses to show that, while plaintiff was in St. Joseph during the last illness of her husband, he requested of her that she return the policy which she had in her possession, that he wanted to pay some of the debts he had incurred, and that plaintiff said in response that she had the policy, and was going to keep it. That the exact purport of the testimony may appear, we here quote from the record as follows: One witness testified: “A. He said he wanted that $1,000 policy that she had, and she told him she had it and was going to keep it.” Another witness testified in response to a question as follows: “Q. Did you hear a conversation between Benjamin P. Holden and his wife, Mary L. Holden, in reference to his wife surrendering to him a certain policy of insurance held by Mr. Holden in the society known as the Modern Brotherhood of America? A. He asked her for the $1,000 policy, and she told him she had it in her possession and she would not give it up.” This testimony was denied by plaintiff, and thus arisesthe principal question of fact in the case.

While the case was originally brought as in equity and the petition of intervention tenders an equitable issue, the case was for some reason tried to a jury. No point is made regarding the method of trial which is considered controlling, for the principal question in the case is one of law, and the trial was had upon the theory, that no matter whether the action be at law or in equity, intervener has no right of recovery. The theory on...