Nat'l Mut. AID Ass'n v. Gonser

• Decision Date: 24 February 1885
• Citation: 43 Ohio St. 1,1 N.E. 11
• Parties: NATIONAL MUT. AID ASS'N v. GONSER.
• Court: Ohio Supreme Court

43 Ohio St. 1

1 N.E. 11

NATIONAL MUT. AID ASS'N

v.GONSER.

Supreme Court of Ohio.

Filed February 24, 1885.

Error to the district court of Holmes county.

The action below was by the defendant in error, Absalom B. Gonser, against the plaintiff in error, an association formed for the ‘mutual protection and relief of its members, and for the payment of stipulated sums of money to the families and heirs of the deceased members,’ under the authority of the legislation embodied in the Revised Statutes, § 3630, and having its principal office in the city of Columbus, Ohio.

On the thirtieth day of July, 1879, this association executed and delivered to one Wilhelm Kebaugh, a resident of Holmes county, in this state, a certificate of membership, whereby it undertook, upon sufficient consideration and in the following terms, to ‘assure the life of Wilhelm Kebaugh in the amount of such sum as will equal seventy-five per cent. of the amount collected of the assessments made for the payment thereof, but not to exceed $2,000. And the said association does hereby promise and agree to pay the amount of said claim, at its office in Columbus, Ohio, in conformity with the rules and regulations of the association, to Wilhelm Kebaugh, or any person designated by his will, or his heirs, if no person is designated herein, or by will, within ninety days after due notice and proof of death of said party whose life is hereby assured.’ This certificate was by its terms assignable, by the consent of the association indorsed thereon. Kebaugh accepted this certificate and remained a member of the association until his death.

On the twenty-sixth day of December, A. D. 1879, Kebaugh duly made and published his last will. On the sixteenth day of December, 1880, he died. On the twenty-seventh day of December, 1880, his will was duly probated in and by the probate court of Holmes county. By the third day of January, 1881, full proofs of the death of the assured were duly made to the association. The dispositive parts of the will are as follows:

‘Item 1. I, Wilhelm Kebaugh, of Millersburg, Holmes county, Ohio, being of sound mind and memory, do make and publish this, my last will and testament, hereby revoking all other wills or codicils made by me. And I further state that I have assigned to Absalom B. Gonser, of said county, my certificate of life insurance, No. 500, in the National Mutual Aid Association of Columbus, Ohio, issued the thirtieth day of July, 1879, for two thousand dollars, upon the valuable consideration that the said Gonser has often befriended me with kindness and kindly offices, without which it would have often been difficult for me to have lived in comfort, and also for money received from him from time to time, during the last ten years, aggregating the sum of over eight hundred dollars, all of which was fully released and canceled by him at the time of the assignment of said certificate. And now, for the purpose of fully complying with the rules and regulations of said association, with which I have been made acquainted by the agent thereof, and of the requirements of said certificate, and for the purpose of placing it beyond doubt that my said friend shall have the full benefit of said certificate and the proceeds thereof when payable according to its terms, I make this, my last will and testament, in reference only thereto, not intending, however, to make a disposition of any other property or means belonging to me; and if I should at any time hereafter dispose of my other property and means by will, it is my intention the same shall not, by general descriptive words, or otherwise, have any effect upon the bequest herein made.

‘Item 2. I do hereby bequeath to Absalom B. Gonser, of Millersburg, Ohio, who has long been my friend, all my right, title, and interest in and to certificate ‘No. 500,’ in the National Mutual Aid Association of Columbus, Ohio, certificate on the life of Wilhelm Kebaugh, of Millersburg, Ohio, in favor of himself, issued the thirtieth day of July, 1879, and all proceeds which may hereafter become due by the terms of said certificate, the application on which it is based, and by the rules and regulations of said association. Said certificate is issued for the sum not exceeding two thousand dollars. The said Absalom B. Gonser is to have the full benefit of said insurance, and I hereby designate him, to whom all the proceeds thereof are to be paid thereunder at my decease, and under the rules of said association, and said association relinquishing all and every claim thereto by the execution hereof and the assignment hereinbefore referred to.'

Kebaugh died solvent, requiring no part of the proceeds of his certificate to pay his debts, or costs of administering his estate. At the time of his death the association had outstanding and in force more than 6,000 certificates of membership, liable to be assessed by it in the sum of $6,000 for the payment of his certificate. No part of any claim under this certificate has been paid.

The petition of Gonser in the court below states the foregoing facts, has annexed thereto a copy of the will of Kebaugh, as a part of it, and concludes with a prayer that the amount due him on the certificate may be found, the liability of the defendant determined, and that he may have judgment against the defendant for the sum of $2,000, with interest, or for such sum as may be found due him on the certificate, with interest. The facts recited in the will are not substantially averred...