Johnson v. Epps

• Decision Date: 31 December 1883
• Citation: 14 Bradw. 201,14 Ill.App. 201
• Parties: JOHN T. JOHNSON ET AL.v.ELIZABETH L. VAN EPPS.
• Court: United States Appellate Court of Illinois

14 Ill.App. 201

14 Bradw. 201

JOHN T. JOHNSON ET AL.

v.ELIZABETH L. VAN EPPS.

Appellate Court of Illinois, Second District.

December Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. DAVID MCCULLOUGH, Judge, presiding. Opinion filed February 5, 1884.

On August 1, 1872, the Illinois Masons Benevolent Society issued to Havilah B. Johnson, a member of the order, a certificate of membership in said society, in and by which the society agreed, in consideration of certain assessments to be paid by said Johnson upon the death of any member of his class in said society, to pay, upon the death of said Johnson, to his wife, Judith Johnson, or to his legal representatives, a certain sum per member of the class to which the insured might belong at the time of his death.

His wife, Judith, died in 1877.

Her death caused the breaking up of his household, as they had no children, and from that time Mr. Johnson had no home of his own.

His health becoming impaired, and his means of support becoming insufficient to provide him adequate support, he, in the year 1879, endeavored to dispose of the benefits secured to him by said certificate to different parties if they would support him during his life and pay the accruing assessments upon it, but did not succeed.

He did not, however, permit the certificate to lapse, and on the 17th day of January, 1880, he, by arrangement with the insurer, surrendered it and in lieu thereof received another with the like conditions as in the former, except upon his death the proceeds were to be paid to Mrs. Van Epps, the appellee, or to his heirs. Mrs. Van Epps, at this time, was living apart from her husband, a contract to that effect existing between them, and it was expected that a divorce would result, which, in fact, did occur in October, 1880.

Mr Johnson and the appellee had been acquainted for a long time, and it was, prior to the change of certificates, agreed that in case such divorce was procured they would intermarry. Mr. Johnson then applied to the association to have her made the beneficiary in the certificate, representing her as his affianced, and the change was made as above noted.

The appellee, who was keeping house, agreed to furnish him a home and care for him, and, if necessary, to keep up the accruing assessments.

The evidence shows that she faithfully complied with the contract upon her part, and that Mr. Johnson throughout his long sickness needed for nothing that money could purchase to make him comfortable. He died on the 25th day of October, 1881, expressing his gratitude for the care and attention he had received at her hands, and his satisfaction that she would not be wholly unrequited for the same, as the certificate which she then held would be paid to her. After his death, these appellants, John T., being a brother, and the others nephews and nieces of the deceased, notified the association that they claimed the proceeds of the certificate, and forbidding its payment to the appellee, while she, also claiming the entire benefit, brought suit upon the certificate, and the association filed its bill of interpleader, confessing its liability upon the contract of insurance, and brought the amount due upon it into court, the sum being $4,160.41, and asked that the rival claimants be compelled to litigate their claims to the fund and the association be discharged.

The court upon hearing awarded the money to Mrs. Van Epps, and the heirs appealed.

Mr. MILES A. FULLER, Messrs. FULLER & KEITHLEY and Mr. W. T. WHITING, for appellants; that whenever a person insuring his life, names the beneficiary, the promise of the insurer is to pay to such beneficiary, and the insured can have no interest in such promise and no power to transfer its benefits to another without the consent of the beneficiary, cited Bliss on Life Ins., § 317; May on Ins., §§ 390, 391; Cont. Life Ins. Co. v. Palmer, 42 Conn. 60; Chapin v. Fellows, 36 Conn. 132; Cont. Mut. Life v. Burroughs, 34 Conn. 305; Eadie v. Slimmons, 26 N. Y. 9; Swan v. Snow, 11 Allen, 224; Gosling v. Caldwell, 1 Lea (Tenn.), 454; Wilburn v. Wilburn, 83 Ind. 56; Gould v. Emerson, 99 Mass. 154; Knickerbocker Life v. Weits, 99 Mass. 157; Ricker v. Charter Oak Ins. Co., 27 Minn. 193; Allis v. Ware, 28 Minn. 166; Williams v. Williams, 68 Ala. 406; Succession of Kugler, 23 La. 455; Pilcher v. N. Y. Life Ins. Co., 33 La. An. 322; Barry v. Eq. Life Ins. Co., 59 N. Y. 587; Glanz v. Gloeckler, 104 Ill. 573; Libby v. Libby, 37 Me. 359.

Where the term “legal representatives” is used and the intent of the party, gathered either from the instrument itself or from its nature and the circumstances under which it was executed, shows that heirs were intended, such intent will control: Bliss on Life Ins., § 319; Warnecke v. Lembca, 71 Ill. 91; Bowman v. Long, 89 Ill. 19; Loos v. Hancock, 41 Mo. 540; Masonic, etc., v. McAuley, Am. Law Reg. 1883, p. 141.

Corporations can only exercise such powers as are specifically granted to them or are necessary or incident thereto. Appellee can not take, because by the articles of the society she is not an object of bounty: Detrich v. Madison R. Asso., 45 Wis. 84; Ballou v. Gile, 50 Wis. 618; Mut. Ben. Asso. v. Hoyt, 46 Mich. 473; Hodge's Appeal, 12 Chicago Legal News, 422; Duvall v. Goodson, 59 Ky. 224.

Messrs. STARR & STARR and Mr. JOHN C. YATES, for appellee; as to the right of the insured to dispose of his policy, cited Clark v. Durand, 12 Wis. 248; Kerman v. Howard, 23 Wis. 108; Foster v. Gile, 50 Wis. 603; Gambs v. Mut. Life Ins. Co., 50 Mo. 44; Mut. Ben. Life Ins. Co. v. Atwood, 24 Gratt. 497; Mut. Life Ins. Co. v. Coghill, 30 Gratt. 72; Pulvertoft v. Pulvertoft, 18 Vesey, Jr., 98; Doll v. Lincoln, 31 Me. 428.

As to the consideration of the articles of the society governing the disposition of certificates: Duran v. Central Verein, 7 Daly, 168; Supreme Council v. Priest, 9 N. W. Rep. 481; The People v. Johnson, 14 Ill. 342; Otis v. Beckwith, 49 Ill. 121; Cole v. Marple, 98 Ill. 58; Lemon v. Phœnix Life Ins. Co., 38 Conn. 294; City Fire Ins. Co. v. Mark, 45 Ill. 482; Tillon v. Kingston Mut. Ins. Co., 7 Barb. 573; Traders Ins. Co. v. Roberts, 9 Wend. 404; Charleston Ins. Co. v. Rose, 2 McMullan, 237.

Certificates of these corporations are discussed and governed by the same rules as policies of insurance: Masonic Ben. Soc. v. Winthrop, 85 Ill. 537; Ill. Masons Ben. Soc. v. Booth, 12 Chicago Legal News, 150; Campbell v. New England Ins. Co., 98 Mass. 381; Ill. Masons Ben. Soc. v. Baldwin, 86 Ill. 479; Com. League, etc., v. The People, 90 Ill. 166; State v. Mer. Exc. Mut. Ben. Soc., 72, Mo. 146; Commonwealth v. Wetherbee, 105 Mass. 160.

As to the doctrine of ultra vires: Darst v. Gale, 83 Ill. 141; Bradley v. Ballard, 55 Ill. 413; Aurora, etc., Soc. v. Paddock, 80 Ill. 267; Chicago Building Soc. v. Crowell, 65 Ill. 453; Gillet v. Logan Co., 67 Ill. 256.

The certificate would be enforced against the company as a gift to appellee: Bliss on Life Ins., 513-515; Grangias v. Arden, 10 Johnson, 291; Dale v. Lincoln, 62 Ill. 22; Majors v. Everton, 89 Ill. 56; Cranz v. Kroger, 22 Ill. 74.

PILLSBURY, J.

Appellants urged a reversal of this decree upon two grounds: first, that the surrender of the first certificate by Mr. Johnson was void as against them; secondly, that Mrs. Van Epps had no insurable interest in the life of Mr. Johnson and she could not therefore become a beneficiary in the substituted certificate.

In support of the first proposition it is said by counsel in their brief, that the following points are conclusively established by the authorities cited, viz.:

“That immediately upon the issuance of the first policy, payable to Judith Johnson or to the legal representatives of H. B. Johnson, the right of said beneficiaries became vested and could not be divested in any way without their consent. The property, or ownership of the policy, was in the beneficiaries and beyond the control of Johnson, the insured, and he could do no act to divest or transfer it from them to other parties. It springs from the nature of the contract, and can not be otherwise. Whenever the person insuring his life names the beneficiary, the promise of the insurer is to pay to such beneficiary, and the insured can have no interest in such a promise and no power to transfer its benefits to another, without theconsent of the beneficiary. It is in the nature of an executed gift, or settlement, and has passed beyond the control of the party procuring it.”

We must confess that the broadness of the position assumed when applied to the facts of this case, the persistency and candor with vhich it is maintained, and the great array of authorities cited in its support, caused us to doubt whether our preconceived opinion that a man in disposing of his property for his own benefit, was not violating any principle of the common law, was correct, and led us into a careful examination of all the authorities cited, so far as they were available to us, and many others not referred to by counsel.

The case of the Continental Life Insurance Co. v. Palmer, 42 Conn. 60, is one where the wife insured the life of the husband, the amount insured to be payable to her if she survived him, if not, to her children. One son died in 1870, leaving a son surviving him, the wife died in 1872 and the husband in 1873. The question was whether the grandson was entitled to share in the proceeds of the policy. The court held that under the provisions of the statute of that State, the policy being made payable to the wife and children, that the children immediately took such vested interest in the policy that the grandson was entitled to his father's share, the wife having died before the husband. It was also said “but for the statute, it would have been a fund in the hands of his representatives for the benefit of the creditors, provided the premiums had been paid by him.”

In the cases of Chapin v. Fellows, 36 Conn. 132, and the ...