Schardt v. Schardt

• Citation: 45 S.W. 340,100 Tenn. 276
• Parties: SCHARDT v. SCHARDT et al.
• Decision Date: 25 January 1898
• Court: Supreme Court of Tennessee

45 S.W. 340

100 Tenn. 276

SCHARDT v. SCHARDT et al.

Supreme Court of Tennessee.

January 25, 1898

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Bill by Wilhelmine Luise Schardt against Henry Schardt and others. From a decree of the court of chancery appeals affirming a decree dismissing the bill, complainant appeals. Affirmed.

John Ruhm & Son, for appellant.

Wilkin & Chamberlain and Stokes & Stokes, for appellees M. H. Meeks and Ed. L. Gregory.

WILKES J.

This is a contest between the widow and children of Henry Schardt deceased, over the proceeds of a certain insurance policy in the Knights of Honor, of which order Henry Schardt died a member. The deceased first took out a policy in the order October 25, 1881, for the benefit of his first wife Magdalena. She subsequently died, and the assured remarried and on April 12, 1888, he surrendered the first policy, and took out another in favor of his second wife, Wilhelmine Luise. Subsequently, and only a short time before he died, he surrendered this certificate, and took out another on April 8, 1896, in which his children, the defendants in this case, were named as beneficiaries. The present bill is filed by the widow, beneficiary under the second policy, against the children, beneficiaries under the third or last policy, to enjoin the payment of the benefit to them as the last policy provides. The chancellor, on final hearing, refused the relief prayed, and dismissed the bill, and on appeal the court of chancery appeals has affirmed the decree of the chancellor, and the complainants have appealed to this court.

While the relief prayed for in the original bill was predicated on several different grounds, only one is insisted upon in this court, and that is, in substance, that the second policy was surrendered and the third policy issued in a mode not in conformity with the rules and by-laws of the order, and hence the substitution of the third for the second policy was irregular, unauthorized, and conferred no rights upon the children, but left the widow entitled to the proceeds of the insurance, as the second policy provided. The objection to the manner in which the surrender of the second and the issuance of the third policy were made is that the surrender certificate authorizing the former to be delivered and the latter to issue was not signed in the presence of the reporter of the lodge, though it was attested by him upon information he received from the dictator, in whose presence it was signed; nor were the acceptance and delivery and the witnessing of the same made in the presence of the reporter as the by-laws contemplate. Several sections of the by-laws and rules of the order are referred to as requiring these formalities to be observed; but, in the view we take of the case, it is not necessary to set them out in detail. The court of chancery appeals was of opinion that the word "attest," as used in these sections, is not confined to its ordinary meaning of witnessing, but means to certify, and that, in order to make such certificate or attestation, it was not imperatively necessary that the signature be made in the actual presence of the reporter, the object being simply to certify to the supreme officers the genuineness of the certificate and its execution,--citing Simcoke v. Grand Lodge, 84 Iowa, 383, 51 N.W. 8; Hirschl v. Clark, 81 Iowa, 200, 47 N.W. 78; 3 Am. & Eng. Enc. Law, 997. We think we need not pass upon the correctness of this view in this case,...