McCleery v. Woodmen of the World

• Decision Date: 02 June 1931
• Citation: 299 P. 1004,136 Or. 407
• Parties: MCCLEERY v. WOODMEN OF THE WORLD ET AL.
• Court: Oregon Supreme Court

299 P. 1004

136 Or. 407

MCCLEERY v. WOODMEN OF THE WORLD ET AL.

Supreme Court of Oregon

June 2, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 297 P. 345.

Guy L. Wallace, of Portland (Roscoe P. Hurst, of Portland, on the brief), for appellant.

Robert R. Rankin, of Portland, for respondents.

BEAN, C.J.

Counsel for defendant Winifred A. Steele, in an earnest petition for rehearing, contends that the decision reached by the court in the former opinion, 297 P. 345, is not supported by authorities. This declaration ignores the authorities cited in our former opinion, and, upon the main question, as far as we discover, fails to discuss them.

Among other authorities, upon the pivotal question in the case, is cited 45 C.J. p. 199, § 161, which deals with the right of a member of a mutual benefit association to contract with a beneficiary for an advancement of money to the member or for the payment of dues and assessments by a beneficiary, so that the member would be precluded, upon a compliance with the terms of the contract, from afterwards changing the beneficiary.

Counsel criticizes the mention of "equitable interest" in connection with "expectancy" in defining the right of McCleery, the beneficiary. The only necessity for a definition of the right of McCleery, as a beneficiary, is to show that he did not have or obtain a "vested interest," so as to come within the inhibition contained in section 46-706, Oregon Code 1930, which provides that "no beneficiary shall have or obtain any vested interest in the said benefit until the same has become due and payable upon the death of the said member." We therefore considered whether the claim of McCleery, by virtue of his contract with Young, the member, was a vested interest. Counsel, in a portion of his brief, seems to agree with the court that it was an expectancy. As we view it, the definition is not material to the determination of the case except to show that it is not a "vested interest." As an excuse for referring to "equitable interest," we again refer to 7 Cooley's Briefs on Insurance (2d Ed.) p. 6432, referred to in our former opinion, where a portion of the language reads as follows: "Generally, it may be said that, if sound equities exist in favor of the original beneficiary of an insurance certificate, the insured is estopped to substitute a second beneficiary, whose status is purely that of a volunteer. * * * (Citing authorities.) * * * the right of the member to change the certificate at will is limited by the equitable right acquired by the beneficiary."

The writer is inclined to the belief that the contract right of McCleery with Young to pay the dues and assessments may be described either as an "expectancy," or a "contingency," or as an "inchoate interest." However we pass this definition, except for the purpose of showing that the right, conferred by the contract prior to the death of the member Young, was not a vested right and the contract was therefore not repugnant to the statute referred to.

"A right is 'vested' when there is an ascertained person with a present right to present or future enjoyment; it is 'exp...