Stemler v. Stemler
| Decision Date | 24 May 1913 |
| Citation | 31 S.D. 595,141 N.W. 780 |
| Parties | MAUDE STEMLER, A Minor, by Anna Streeck, Her Guardian, Plaintiff and appellant, v. JOHN D. STEMLER, Defendant and respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Davison County, SD
Reversed
A. E. Hitchcock
Attorney for Appellant.
Fellows & Fellows
Attorneys for Respondent.
Opinion filed May 24, 1913; Rehearing denied July 19, 1913
Based upon an agreed statement of facts, findings and judgment were in favor of defendant. Plaintiff appeals.
One Jacob Stemler died on the 28th day of January, 1911. Twelve years prior thereto he had become a member of the Modern Woodmen of America, and there had been issued to him a benefit certificate in the sum of $2,000, payable to Mollie Stemler, his wife, the beneficiary therein named, and which certificate in effect provided that, in case of the death of said Mollie Stemler prior to the death of said Jacob Stemler, then, and in that event, the said sum should be payable to the heirs of said Jacob Stemler. The said certificate also contained the further provision that the by-laws of said Modern Woodmen form a party of the contract between the said Modern Woodmen and said Jacob Stemler, and said by-laws provide that, if a member at any time desires to change his beneficiary and obtain a new certificate, he shall deliver to the local camp clerk his benefit certificate, with the surrender clause on the back thereof duly filled out and executed by him, designating therein the change desired in the beneficiary, which surrender clause shall be executed in the presence of and attested by the local camp clerk, or any person authorized by law to administer oaths and take acknowledgments; and that the local clerk shall thereupon forward said certificate with said surrender clause, to the head clerk, who shall thereupon issue a new certificate payable to the beneficiary named in said surrender clause, and no change in the designation of beneficiary shall be effective until the old certificate shall have been delivered to the head clerk and a new certificate issued during the lifetime of the member, and until such time the old certificate shall remain in force. On the 26th day of January, two days before his death, Jacob Stemler executed the surrender clause on the back of his original certificate, before a notary public, and therein requested the issuance of a new certificate wherein the defendant, John D. Stemler, a brother, should be named as beneficiary. On the 28th day of January, the day of the death of Jacob Stemler, the said original certificate, with the surrender clause and request for change of beneficiary indorsed thereon, was delivered to the local camp clerk, at Plankinton, S. D., and the same was on said day, by said local camp clerk, by mail, forwarded to the head clerk of the Modern Woodmen of America, at Rock Island, Ill., and the same was received by said head clerk at his office on January 30th, and thereupon, without any knowledge or notice of the death of said Jacob Stemler, the said head clerk issued to said Jacob Stemler a new benefit certificate wherein the said John D. Stemler was named as beneficiary, and which new certificate was immediately forwarded to said local camp clerk, who did not deliver the same to any person, but on the 4th day of February following returned the said new certificate to said head clerk, at Rock Island, pursuant to directions from said head clerk, who had in the meantime been notified of the death and time thereof of Jacob Stemler. Both Maude Stemler, the minor daughter, and John D. Stemler, brother of said Jacob Stemler, made claim against the Modern Woodmen for the payment of said $2,000; the said Maude Stemler basing her claim upon the old original certificate, and John D. Stemler basing his claim upon the new certificate. Plaintiff, Maude Stemler, originally commenced this action against the Modern Woodmen, and thereafter the Modern Woodmen appeared and stated that it was ready and willing to pay said sum to plaintiff, except for the claim of John D. Stemler thereto. Thereafter, by stipulation, the said John D. Stemler was substituted as defendant in place of the Modern Woodmen. Prior to decision plaintiff requested the court to find that the original certificate issued to said Jacob Stemler was in force at the time of his death and fixed the liability of said association and the rights of the parties to the benefits of said certificate, and that plaintiff was entitled to judgment awarding her the proceeds of said original certificate, and which requested finding was refused by the court. Thereafter the court made the finding that the insured, Jacob Stemler, in his lifetime did everything on his part to be done and performed in order to effect a change of beneficiary in strict accordance with the terms of the contract between him and said Modern Woodmen and the by-laws of said association; and, as between the parties to this action, a change of beneficiary was there by effected; and that defendant, John D. Stemler, is the equitable owner of the avails of said certificate and entitled to judgment therefor. Plaintiff, the appellant, assigns as error the refusal of the trial court to make the findings and render judgment as requested by plaintiff, and also assigns as error the making of the findings and rendition of judgment in favor of defendant.
We are of the opinion that upon the facts judgment should have been rendered in favor of plaintiff. Whether the plaintiff or whether the defendant was the beneficiary under the benefit certificate of Jacob Stemler, deceased, depended upon the contract in existence between the Modern Woodmen of America and said Jacob Stemler at the time of his death. The decisive question is, Who was the beneficiary at the time of the death of the insured? After the death of Mollie Stemler, the wife, and up until the 26th day of January, 1911, there was no dispute but what Maude Stemler, the minor daughter, was the beneficiary under the original certificate. Did the insured on or after the said 26th day of January take such steps and do the things, under the terms and conditions of his contract, that were necessary and essential to effect a change of beneficiary? The only evidence is a surrender clause and request for change of beneficiary, indorsed on the back of the original certificate, appearing to have been executed, signed, and acknowledged by Jacob Stemler, the insured, on the 26th day of January, 1911. The record is silent as to what were, the attending circumstances surrounding the execution of this seemingly unnatural execution of surrender clause and request for change of beneficiary. Did Jacob Stemler deliver the same to any one, and, if so, to whom, and what were the circumstances and conditions of such delivery? Who delivered this original certificate and said indorsement thereon to the local camp clerk on the 28th day of January, and was such delivery to said local camp clerk mate before or after the time of the death of the insured? On these pertinent questions the record is silent.
The respondent is resting alone on the fact of the appearance of said signed and acknowledged indorsement on the back of the original certificate requesting the change of beneficiary, and the further fact that the head clerk two days after the death of the insured, and without notice of such death, issued a new certificate to Jacob Stemler, with respondent named therein as beneficiary. The bare execution and acknowledgment of such a surrender clause and request for change of beneficiary would certainly be ineffectual for any purpose if no delivery or other steps were taken towards carrying the said execution thereof into effect. Such an insured might, we apprehend, duly sign and acknowledge such a surrender clause and still retain the same for years in his own possession and control, without any effort or attempt to deliver the same or carry the same into effect, and his death occur with the same still in his possession and under his control undelivered, and under such circumstances alone it could not be successfully contended that there had been a change of beneficiary. This is substantially the situation here present, so far as disclosed by the record. What part Jacob Stemler took in getting said signed and acknowledged surrender clause into the hands of the head clerk does not appear. After the death of Jacob Stemler, the Modern Woodmen Association, or its head clerk, was powerless to enter into any new contract with him, or change any old contractual relation existing between them; it was beyond their power to in any manner contract with such deceased member, whether they had notice of his death or not; hence, under the circumstances of this case, whatever action in relation to the contract of Jacob Stemler was taken on the part of the Modern Woodmen after his death was wholly ineffectual for any purpose whatsoever, and this case must he determined upon the contractual relations existing between Jacob Stemler and the Modern Woodmen at the instant of his death. It will be observed that the contract, as evidenced by the original certificate and by-laws, between said insured and...
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