Modern Woodmen of America v. Ghromley

• Decision Date: 28 February 1914
• Citation: Modern Woodmen of America v. Ghromley, 139 P. 306, 41 Okla. 532, 1914 OK 94 (Okla. 1914)
• Parties: MODERN WOODMEN OF AMERICA v. GHROMLEY.
• Court: Oklahoma Supreme Court

139 P. 306

41 Okla. 532, 1914 OK 94

MODERN WOODMEN OF AMERICA v. GHROMLEY.

Supreme Court of Oklahoma

February 28, 1914

Syllabus by the Court.

G whose age at the time is not shown, but who was a mere youth left his home in Kentucky, going to Texas. At the time of his departure he left a brother four years his junior, an inmate of an orphans' home. Upon reaching 18 years of age, G returned to his former home in Kentucky, where he spent three days trying to get word of his brother, but failed. It is not shown that the brothers had ever corresponded with each other, or that the younger knew of the elder's whereabouts. The year previous to the brother's return the yellow fever had visited the locality of the orphans' home, causing a number of deaths. It was not proven for what length of time the younger brother remained in the orphans' home, or whether he was an inmate thereof on the visit of the pestilence, nor did it appear of whom inquiry was made, or the extent thereof. Held, the facts proved were insufficient to raise the presumption of death, arising from an absence from home, unheard from, for a period of seven years.

In order that the presumption that a person once shown to have been alive continues to live may be overcome by the presumption of death, arising from seven years' unexplained absence from home or place of residence, there must be a lack of information concerning the absentee on the part of those likely to hear from him, after diligent inquiry.

The inquiry should extend to all those places where information is likely to be obtained, and to all those persons who in the ordinary course of events would be likely to receive tidings if the party were alive, whether members of his family or not; and, in general, the inquiry should exhaust all patent sources of information, and all others which the circumstances of the case suggest.

The presumption of death is one that generally is applied only to those who were absentees from their home; but does not authorize such absent person or persons to presume, therefore, that any one of those remaining at the place which he or they have left has died.

With even greater force should the rule last announced be confined in the case of those of tender years, such as the separation of two brothers during their boyhood days.

It is a presumption of law that a person dying intestate has left heirs capable of succeeding to his estate.

Commissioners' Opinion, Division No. 1. Error from District Court, Bryan County; Summers Hardy, Judge.

Action by Margaret Ghromley, administratrix of the estate of Christopher F. Green, deceased, against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error. Reversed.

Truman Plantz, of Rock Island, Ill., Geo. L. Bowman, of Kingfisher, and Geo. G. Perrin, of Rock Island, Ill., for plaintiff in error.

Utterback, Hayes & MacDonald, of Durant, for defendant in error.

SHARP C.

The benefit certificate, on which plaintiff's action was brought, was issued by defendant to Christopher F. Green, March 17, 1908, and was made payable, in case of his death while a beneficial member of said society in good standing, to his beneficiary or beneficiaries, to wit, his legal heirs. The assured died November 23, 1909, while in good standing in said society. Neither the plaintiff, Margaret Ghromley, nor her sisters, Louisa Halley and Mary Elizabeth Halley, were related to the assured other than it was claimed they were each members of the family of said Christopher F. Green, and had lived with him as members of his family for many years, and had been during said time, and were at the time of his death, each and all dependent upon him for a livelihood and support.

The by-laws of defendant society, among other provisions, contained the following: "Benefit certificates shall be made payable only to the wife, surviving children or some other person or persons specifically named in said benefit certificate as beneficiary, who are related to the member as heir, blood relative, or person dependent upon him, or member of his family, whom the applicant shall designate in his application." And further specifically provided that no payment should be made upon any benefit certificate to any person who did not bear to the assured, at the time of his death, the relationship, either of wife, surviving child, heir, blood relative, or person dependent upon, or member of, the family of the member. Thus it will be seen that while persons dependent upon a member of the society, or who were members of his family, were eligible as beneficiaries, the by-law named further provided that they must be specifically mentioned in the certificate as such beneficiaries. The controlling statute at the time governing beneficiary associations in this state (section 3889, Comp. Laws 1909) provided that payment of death benefits should be to the families, heirs, blood relatives, affianced husband or wife of, or to persons dependent upon, the member.

Plaintiff's action was predicated upon the theory that at the time of the death of Christopher F. Green he had no legal heirs, and that plaintiff and her two sisters, being persons dependent upon, and members of, the assured's family, were entitled to the proceeds of the beneficiary certificate, in pursuance of the by-law above quoted.

The three principal grounds upon which a reversal of the judgment below is urged, are: (1) That the administratrix was not entitled to sue; (2) that there was no sufficient evidence of the death of Christopher F. Green's brother; (3) that Margaret Ghromley and her sisters were not, in any event, legal beneficiaries under the beneficiary certificate. Our conclusions render unnecessary a determination of the first proposition, and the remaining questions will be considered together.

The application for membership and benefits in the defendant society, signed by the assured on February 20, 1908, as already observed, named as the beneficiaries the assured's legal heirs. In answer to numerous questions contained in the application, the assured stated that he had a living brother, age 39 years, whose then condition of health was good. It was not shown whether he had any living uncles or aunts, or more distant kindred, and the only proof offered as to the death of the brother was the testimony of Margaret Ghromley, concerning statements made to her by the deceased during his lifetime, and which testimony is both meager and unsatisfactory. From it we gather that when Christopher F. Green was about 21 years of age he came from somewhere in the state of Texas to the home of the plaintiff, her sisters, and then living brother, at the time residing in said state, and thereafter continued to make his home with them, first in Texas, and afterwards in what is now Oklahoma, until the day of his death 24 years thereafter; that Green had told her that when he left his home in Kentucky he left a younger brother in an orphans' home; that he went off and stayed until he was 18, when he returned and spent about three days trying to get word from his brother, but failed; that he found out the yellow fever had visited that locality the year before, and he guessed his brother had died, as many other persons had. Treating this testimony as competent, and though contradicted by Green's application, stating that his only brother was living and in good health, was it sufficient to raise the presumption of death arising from an absence of seven years? According to the signed application, the assured was 43 years of age at the time of the issuance of the beneficiary certificate; his brother 4 years younger. There is no evidence as to Green's age when he left home and went to Texas, but only that he went off and stayed until he was 18, when he returned. It is not shown that during his absence he ever wrote to or received letters from his younger brother, or that any form of communication, either between the brothers or others concerning them, passed during said absence. It does not appear that upon his return he made any inquiry as to whether his brother had left the orphans' home, and, if so, when, and to what place he had gone, though it may fairly be inferred that some such information was obtainable, for the testimony is that the yellow fever had visited that locality only the year before. In fact the extent of his inquiry does not appear to have been made the subject of inquiry further than stated. If living at the time, the younger brother would have been 14 years of age. Had it been shown that he continued to be an inmate of the orphans' home, and was such an inmate on the occasion of the pestilence named, the presumption of death would be greatly strengthened.

It is a rule of common law that a person shown not to be heard of for seven years by those, if any, who, if he had been living, would naturally have heard of him is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of, without assuming his death. Jones on Evidence, § 61.

The...