Johnson v. Knights of Honor

• Decision Date: 10 May 1890
• Citation: 13 S.W. 794,53 Ark. 255
• Parties: JOHNSON v. KNIGHTS OF HONOR
• Court: Arkansas Supreme Court

13 S.W. 794

53 Ark. 255

JOHNSON v. KNIGHTS OF HONOR

Supreme Court of Arkansas

May 10, 1890

APPEAL from Prairie Circuit Court, Southern District, M. T. SANDERS Judge.

Judgment affirmed.

U. M. & G. B. Rose and George Sibley for appellant.

1. If the subsequent changes in the constitution of the order did not control the language of the certificate, still under the designation of heirs, the widow was entitled to one-half the amount.

The word heirs has a different signification when used in reference to real and personal property. When lands are in question, heirs mean those who would take at common law or by the statute of descents. When personalty is spoken of, it means those entitled under the statute of distribution. 7 Allen, 77; 1 Hoff., Chy., 202; 5 Vesey, 403; 4 Vesey, 649; 15 N.E. 919; 5 Moak (Eng.), R., 746; 26 Moak (Eng.), R., 417; 26 Moak (Eng.), R., 384; 5 Kan. 392; 1 Dev., Eq., 189; 1 Jones Eq., 117; 2 Jones, Eq., 28; 1 Jones, Law, 221; 6 Beav., 266; 16 Beav., 560; 2 Kay & J., 729; 2 Jur., N. S., part 1, 344; 84 Pa. St., 241; 8 Lea, 569; 32 N.J.Eq. 180.

2. By the terms of the certificate, the loss is to be paid Johnson's heirs. Before his death the constitution was so changed as to make the benefit payable only to his family, or some one dependent on him for support. His family consisted of his wife, and no else was dependent on him. The subsequent amendment deprived the intervenors of no vested rights, for they had none. 4 Kent's Com., 336. The constitution may be altered, and beneficiaries changed as often as the association desires. 46 Vt. 362; 4 Hun, 339; 62 How. Pr 466; 71 Ala. 436; 8 S.W. 38; 60 Tex. 532; 92 Pa. St., 510.

Grown up brothers and sisters living apart from the decedent and not dependent on him are not part of his family. Winfield, Adj. Words and Phr. "Family;" Rap. & L. Dict., "Family;" Bouvier, L. D., "Family;" 142 Mass. 224.

The laws of Missouri, the domicile of the association, prohibit payment to any but members of the family, or those dependent on him, and a contract to pay his heirs, generally, would be void as ultra vires, and the benefit would go to such as are entitled under the charter and laws of the order. 12 N.E. 407. See also 7 N.W. 273; Hirschl on Fraternities, 23.

J. E. Gatewood for appellees.

1. If the designation of "his heirs" was not a valid naming of persons as beneficiaries, then the policy lapses, and no one can take. The certificate was never changed by Johnson during his life, nor indicated any desire to do so, except to his child, and after the child's death he expressed a determination not to change the beneficiary.

The meaning of the word heirs is definitely settled by our statutes. The estate, real and personal, descends to the kindred, male and female, subject to the widow's dower--clearly not recognizing the widow as kindred. Mansf. Dig., sec. 2522, subd. 1, 2 and 3, and secs. 2523-4-5. The wife can only be made heir by declaration in writing. Mansf. Dig., secs. 2344, 2345.

The only case in which a widow can inherit is under sec. 2528, where there is a total failure of kindred. See also secs. 2603-4-5. Heir means child or descendant. 23 Ark. 378; 22 Ark. 567; those who would inherit should one' die intestate. 5 Ark. 608; Kelly v. McGuire, 15 Ark. 555.

A widow can only take when it was the property of her deceased husband's estate, and then only as dower. Sec. 2593, Mansf. Dig.

A widow can never take as heir, but only as widow. If no person is designated to take the benefit, it lapses, or must be covered into the widow's and orphan's fund, or must be collected by Johnson's administrator. 3 Tenn. Chy., 108.

2. The lodge alone can complain of Johnson's want of obedience to the laws of the order. Having acquiesced in his holding the original certificate, they are now estopped to require him to change it. Niblack, Ben. Soc., sec. 7; Brice, Ultra Vires, 729; 96 U.S. 258; 96 U.S. 351; 120 Ill. 121. See also 102 Ind. 262; 104 Ind. 133; 20 Wall. 245; 121 U.S. 186. The change made in the constitution was inoperative as to Johnson. Niblack, p. 253, sec. 221. The power of appointment may be exercised at any time during the contract. Niblack, sec. 217. It requires some affirmative act on the part of a member to change the beneficiary. Niblack, sec. 222. The change must be made in the manner prescribed by the order. Niblack, sec. 221; 2 Dem. (N. Y.), 409; Niblack, sec. 223; 18 Mo. App., 189; 111 Ind. 12; Niblack, secs. 224-5; 6 N.Y. 851; 28 Mo. 28; Niblack, secs. 189, 184 and 272.

The lodge alone is the only person who can raise the question as to who is the proper beneficiary. They have paid it into court and thus waived that question. Cases supra; 12 S.W. 477.

The contract must be determined by the law as it stood when the contract was made. 25 Ark. 625; 12 Ark. 321; 3 Ark. 285.

Appellees are the only heirs and as such are entitled to the fund.

OPINION

BATTLE, J.

On the 4th day of September, 1883, the Supreme Lodge of the Knights of Honor issued to James W. Johnson, a member of DeVall's Bluff Lodge, No. 2172, a local lodge of the Knights of Honor, located at DeVall's Bluff in this State, a benefit certificate for the sum of two thousand dollars payable to his heirs at his death. At that time Johnson was unmarried, and the constitution of the supreme lodge authorized the issuing of a benefit certificate, payable, on the death of a member, to his family or as he might direct. In 1884 the constitution was changed, so as to authorize the issuing of a certificate to a member payable "to some member or members of his family, or person or persons dependent on him, as he may direct or designate by name to be paid as provided by general law." After this, on the 7th of December, 1884, James W. Johnson and Laura A. Johnson, the plaintiff in this action, married, and on the 27th of February, 1886, a child was born to them, who died on the 10th of August of the same year. On the 24th of November following, James W. Johnson died without descendants, leaving Laura A., his widow, and S.W. Pate and O. T. Carr, sisters of the whole blood, and George W. Price and Salvina T. Hurt, half sister and brother, his nearest kindred, surviving him. The beneficiaries named in the certificate of the 4th of September, 1883, were never changed. The supreme lodge has paid the $ 2,000 into court, and the sisters and half sister and brother, defendants in this action, claiming to be the heirs of Johnson, and Laura A., litigate its disposition.

The first question presented for our consideration is, who are meant by the word "heirs" in the certificate in controversy? It is a technical word. When used in any legal instrument, and there is no context to explain it, as in this case, it should be understood in its legal and technical sense. Moody v. Walker, 3 Ark. 147; Myar v. Snow, 49 Ark. 125, 4 S.W. 381; Hascall v. Cox, 49 Mich. 435, 13 N.W. 807; Mounsey v. Blamire, 4 Russ. 384; De Beauvoir v. De Beauvoir, 3 House of Lords Cas., 553, 557; Doody v. Higgins, 2 Kay & J., 729; Holloway v. Holloway, 5 Ves. Jr. 401. At law it was used to designate the persons on whom an inheritance in real estate was cast by the law on the death of the ancestor. Originally it could not be used to designate those on whom the goods or chattel property were cast, because the law cast them upon no one. No one "was appointed by law to succeed to the deceased ancestor; on his death, they became bona vacantia, and were seized by the king on that account, and by him, as grand almoner, applied to pious uses, now considered superstitious, for the good of the souls of their former owner." But since the enactment of statutes of distribution, it has often been used in gifts and bequests of personal property to designate the donee or legatee. As to its meaning when used in this connection, courts are not in harmony, and there is much confusion and conflict in the decisions. No useful purpose can be served by -a review of the cases upon the question in this opinion. Suffice it to say, that the weight of authority holds, that the word "heirs," when used in any instrument to designate the persons to whom personal property is thereby transferred, given or bequeathed, and the context does not explain it, means those who would, under the statute of distribution, be entitled to the personal estate of the persons of whom they are mentioned as heirs in the event of death and intestacy. Doody v. Higgins, 2 Kay & J., 729; Gittings v. McDermott, 2 Mylne & Keen 69; Wingfield v. Wingfield, 26 Moak. 422; Sweet v. Dutton, 109 Mass. 589; Wright v. Trustees etc., 1 Hoff. Ch. 211; 213; McCabe v. Spruil, 16 N.C. 189, 1 Dev. Eq. 189; Evans v. Salt, 6 Beav. 266; Jacobs v. Jacobs, 16 Beav. 557, 560; White v. Stanfield, 146 Mass. 424, 15 N.E. 919; Low v. Smith, 2 Jur., N. S., part 1, 344; Houghton v. Kendall, 7 Allen 72; 2 Jurist, N. S., part 2, 211; Croom v. Herring, 11 N.C. 393, 4 Hawks 393; Eddings v. Long, 10 Ala. 203; Rawson v. Rawson, 52 Ill. 62; Richards v. Miller, 62 Ill. 417; Hascall v. Cox, 49 Mich. 435, 13 N.W. 807; see Tillman v. Davis, 95 N.Y. 17.

In many States where the widow is entitled to take under the statute of distribution, she is held to be an heir of her deceased ceased husband as to his personal estate. But it is different in this State. Section 2522 of Mansfield's Digest provides: "When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the following manner First. To children, or their descendants, in equal parts; Second. If...