Simcoke v. Grand Lodge A. O. U. W. of Iowa

• Decision Date: 28 January 1892
• Citation: 84 Iowa 383,51 N.W. 8
• Parties: SIMCOKE v. GRAND LODGE A. O. U. W. OF IOWA ET AL.
• Court: Iowa Supreme Court

84 Iowa 383

51 N.W. 8

SIMCOKE

v.GRAND LODGE A. O. U. W. OF IOWA ET AL.

Supreme Court of Iowa.

Jan. 28, 1892.

Appeal from district court, Dallas county; O. B. AYRES, Judge.

Action on a beneficiary certificate issued by the defendant grand lodge to one Lawrence E. Maulsby, who was a member of the order, with the plaintiff named as beneficiary therein. The issues are of law, arising upon a demurrer to the answer of E. P. Maulsby, who was a brother of Lawrence E. Maulsby, and was the beneficiary named in a certificate that was surrendered to the grand lodge, and in lieu of which the present certificate was issued. The defendant grand lodge makes no issue as to its liability upon a certificate, but leaves the contention to the plaintiff and the defendant Maulsby as to the validity of plaintiff's certificate. The answer of Maulsby presents facts on which it is claimed that the latter certificate is not valid. A demurrer to the answer was sustained, and the defendant Maulsby appealed.Willard & Willard and T. R. North, for appellant.

White & Clark, for appellee.

GRANGER, J.

1. The constitution of the defendant order has the following provision: “Sec. 15. Any member, holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the recorder, with the seal of the lodge attached, and by payment to the grand lodge of the sum of fifty cents; but no change shall be valid, or have any binding force or effect, until said change shall have been reported to the grand recorder, the old certificate filed with him, and a new beneficiary certificate issued thereon,--said new certificate to be numbered the same as the old certificate: provided, however, should it be impracticable for the recorder to witness the change desired by the brother, attestation may be made by a notary public, or an officer of a court of record authorized to acknowledge deeds.” On the back of the certificate in lieu of which the present one was issued, was what purports to be the written authority of the member (Lawrence E. Maulsby) for a new certificate to issue, with plaintiff as beneficiary, to which was the attestation of the recorder of the lodge, with the seal of the lodge attached; but it is a fact that the recorder was not present to witness the signature of Maulsby, and because of such fact it is claimed that the second certificate is invalid. The contentions on this branch of the case arise on different views as to what amounts to a proper attestation, and the effect thereof.

We experience some difficulty in reaching a conclusion as to how far defendant Maulsby intends to admit by his answer that the attempt to change the certificate was done by Lawrence E. Maulsby. Taking the answer as a whole, we think the proper inference is that it admits that the indorsement on the back of the first certificate was signed by Maulsby, and that the defect consists only in the mode of attestation. We are warranted in resolving the doubts, in such a case, against the pleader. We have no question, then, but that the request for a change was in fact properly signed, and every requisite necessary for a change complied with, except that the recorder of the lodge did not in fact witness the execution by Maulsby, but affixed his seal and signature to the “attest” “many miles away.” The execution was such that, when the certificate was presented to the officers of the grand lodge, it was canceled, and a new certificate issued, with a new beneficiary, in accord with the wish and right of Lawrence E. Maulsby. The case is entirely free from fraud or imposition,--facts important to have in view in reaching a just conclusion. We do not find it necessary to determine whether or not, under a strict construction, the recorder, in order for a proper attestation, should have personally witnessed the execution. We give great weight to the fact that a new certificate did issue in harmony with the wish of Lawrence E. Maulsby, and the result was reached by the acts of the only parties then having an interest in the transaction. The attestation, in and of itself, was not, to our minds, indispensably necessary to a...