Royal Neighbors of America v. Fletcher

• Decision Date: 30 March 1921
• Docket Number: (No. 1784.)
• Citation: 230 S.W. 476
• Parties: ROYAL NEIGHBORS OF AMERICA v. FLETCHER et al.
• Court: Texas Court of Appeals

Page 476

230 S.W. 476

ROYAL NEIGHBORS OF AMERICA v. FLETCHER et al.

(No. 1784.)

Court of Civil Appeals of Texas. Amarillo.

March 30, 1921.

Rehearing Denied May 4, 1921.

Appeal from District Court, Hale County; R. C. Joiner, Judge.

Action by Mrs. Dollie Fletcher and P. G. Fletcher, her husband, against the Royal Neighbors of America and another. From a judgment for plaintiffs, the named defendant appeals. Affirmed.

Kinder, Russell & Griffin, of Plainview, and Benj. D. Smith, of Mankato, Minn., for appellant.

Williams & Martin and P. B. Randolph, all of Plainview, for appellees.

HALL, J.

This is an action brought by the appellees, Mrs. Dollie Fletcher, joined by her husband, P. G. Fletcher, against the appellant, a fraternal benefit society, and Iona May Fletcher, an infant, to collect $2,000 due under a benefit certificate issued by appellant society to Porter G. Fletcher. The case was tried by the court without a jury, and judgment for $2,000, interest and costs, was rendered in favor of the appellee Mrs. Dollie Fletcher. The petition alleges, in substance, that Royal Neighbors of America is a fraternal beneficiary society organized under the laws of Illinois; that it is doing business in the state of Texas, under chapter 7, title 71, of the Revised Statutes of Texas, and that Iona May Fletcher is a minor residing at Duncan, Okl., and has no legal guardian representing her in the state of Texas; that on the 8th of March, 1911, the society issued to Porter G. Fletcher benefit certificate for $2,000, in which his wife was named as beneficiary; that thereafter the said beneficiary died, and on the 7th day of June, 1918, the said Royal Neighbors of America issued a substitute certificate to said Porter G. Fletcher, payable in the sum of $2,000, to Iona May Fletcher, as beneficiary; that the said certificate sued on is expressly payable to "Iona May Fletcher, related to said Neighbor as daughter"; that said benefit certificate further provides, in the event of the death or disqualification of the beneficiary named therein, then, as provided in the by-laws, if such member fails to have another beneficiary named, the amount to be paid under the certificate shall be payable to the husband or wife; if no husband or wife, to his or her children, including legally adopted children, and, in case there are deceased children or child, the children or child of such shall take the share of such deceased parent; if no children or child of the deceased children or child, to the mother, etc.; that the by-laws of the Royal Neighbors of America prescribe as follows:

"Sec. 201. Who may be Beneficiaries.—Benefit certificates shall be made payable only to the family, husband, wife, surviving children, including legally adopted children, as blood relations or to persons dependent upon the member whom the applicant shall specifically designate in the application."

It is further alleged that the said Iona May Fletcher was not and has never been one of the persons mentioned or included within the said section 201; that she was not a member of his family, husband, wife, surviving child, or legally adopted child, nor heir, nor blood relation, nor a person dependent upon the said Porter G. Fletcher; that the said Porter G. Fletcher is dead; that he left no widow, or children, or adopted children, or grandchildren surviving him; that the plaintiff Dollie Fletcher is his mother and next of kin, and entitled to receive the proceeds from the benefit certificate; that the Royal Neighbors of America had acknowledged its liability under the said benefit certificate, but had not made payment because it was unwilling to determine whether the said Dollie Fletcher or the said Iona May Fletcher was legally entitled to said fund; that the said Iona May Fletcher was setting up a claim to the proceeds of the benefit certificate. In its answer, the defendant, Royal Neighbors of America, admitted: That it was a fraternal beneficiary society organized under the laws of Illinois, and under said laws was organized and carried on for the sole benefit of its members and their beneficiaries and not for profit, making payment of death benefits only to the families, heirs, blood relations, affianced husband or affianced wife, of or to persons dependent upon the members. That the articles of incorporation of the society provide that "the object for which this corporation is formed is to encourage and disseminate moral principles, to promote fraternal love, to comfort the sick in time of need, and to bestow substantial benefits upon the family, heirs, blood relations, or to persons dependent upon the member." That the defendant was organized and carried on for the sole benefit of its members and their beneficiaries, and not for profit, having a lodge system with ritualistic form of work and representative form of government, and making provision for payment of death benefits, subject to compliance by its members with the contract, rules, and laws of the society. That the fund from which death benefits are defrayed is derived from assessments collected from the members, and that payment of death benefits is made to beneficiaries coming within the classes prescribed in the statutes, articles of association, and by-laws aforesaid. That the original certificate had indorsed thereon the following request for change of beneficiary: "I, Porter G. Fletcher, the Neighbor to whom this benefit certificate was issued, do hereby surrender and request the cancellation of this benefit certificate and order that a new one shall be issued as a part of my contract with the society, in the amount of $2,000, and shall be made payable to Iona May Fletcher, related to me as daughter. [Signed.] Porter G. Fletcher. Signed in my presence at Texline, state of Texas, this 3d day of June, 1918. Stella Steward, Recorder of Camp No. 4765, R. N. of A." That in compliance with said request for change of beneficiary the society did, on the 7th of June, 1918, issue to said Porter G. Fletcher a second benefit certificate, which is the one herein sued on and which recites that "Royal Neighbor Porter G. Fletcher, a beneficial member of Sunflower Camp No. 4765, at Texline, Tex., while in good standing in the fraternity, is entitled to the privileges of this society and the beneficiary or beneficiaries herein named to participate in its benefit fund in the amount of $2,000, which shall be paid after death of said Neighbor, without interest, to Iona May Fletcher, related to said Neighbor as daughter." The defendant Iona May Fletcher, through her guardian ad litem, filed a plea to the jurisdiction of the court and an answer, consisting of a general demurrer and general denial. The court found, among other facts, that Iona May Fletcher was not the legally adopted child of the said Porter G. Fletcher, and was disqualified from taking the benefits under said benefit certificate; was not dependent upon the said Porter G. Fletcher and was not a member of his family at the time said policy was issued, nor at the time of his death, and had no insurable interest in the life of Porter G. Fletcher; that Dollie Fletcher, his mother, was his next of kin. The evidence discloses that in 1915 Porter G. Fletcher and his wife, having no children of their own, procured an infant child three days old at Fort Worth, Tex., and that soon after the following instrument was filed with the county clerk of Dallam county, and duly recorded in the deed records of said county:

"File No. 10478.

"Adoption.

                             "Texline, Texas, Feb. 27, 1915
                

"To Whom it may Concern: This is to certify that I, the undersigned, have adopted a child, said child being named Iona May Milton. The said child to have all the rights and privileges of one that should be of blood relation. This is to be extended in the way of education, inheritance or any other way advantageous to the said child.

                  "Given under my hand this the 27th day of
                February, 1915.           P. G. Fletcher
                

"Subscribed and sworn to before me this 27th day of February, 1915. Johnson Allen, Justice of the Peace and ex Officio Notary Public, Dallam county, Texas. [Seal.]"

This instrument is indorsed:

"Filed for record March 1, 1915, at 8:00 o'clock, a. m., and recorded March 1, 1915, at 4:00 o'clock, p. m.

                         "Roy W. Thompson, County Clerk."
                

It is shown that Porter G. Fletcher and his wife separated about two years before his death, and that the wife had given the child to her sister, Mrs. Tucker, in Oklahoma, before the separation, because she was not able to take care of it. At the time the certificate was issued Fletcher was at San Antonio in Y. M. C. A. work with the army, and the child was then and had for more than a year been with Mrs. Tucker in Oklahoma. That about a year before the death of the wife she had a paralytic stroke and went to the home of her sister, Mrs. Tucker, and took the child, Iona May, who was then about two years old, with her, so that Mrs. Tucker could care for her and the child. Porter G. Fletcher died in June, 1918. The last eight months before his death he lived with his father and mother as one of their family, at Plainview, and died at their home. P. G. Fletcher, the father of Porter G. Fletcher, testified that at the time the certificate was issued he had his son's word for it that the son was not contributing anything to Iona May's support; that he had looked over the statements and checks left by his son and found no evidence in them that he had ever contributed anything to the support of Iona May during the time he lived with his parents. Mrs. Fletcher, the plaintiff, said that after her son came to her home she could not see where he had contributed anything to the child's support; that he told her about most of his affairs.

The first question to be considered is, Was Iona May Milton the legally adopted daughter of Porter G. Fletcher? It is said in Jordan v. Abney, 97 Tex. 296, 78 S. W. 489:

"The mere contract ...