Supreme Council of Royal Arcanum v. Kacer

• Decision Date: 06 August 1902
• Citation: 96 Mo. App. 93,69 S.W. 671
• Parties: SUPREME COUNCIL OF ROYAL ARCANUM v. KACER et al.
• Court: Missouri Court of Appeals

69 S.W. 671

96 Mo. App. 93

SUPREME COUNCIL OF ROYAL ARCANUM v. KACER et al.

Court of Appeals at St. Louis, Missouri.

August 6, 1902.

DEATH — SURVIVORSHIP — PRESUMPTION — BURDEN OF PROOF — BENEFIT CERTIFICATES — RIGHT TO BENEFIT.

1. At common law there is no presumption that one of two persons perishing in the same disaster survived the other, so that a person claiming through one of them as survivor of the other has the burden of proof.

2. The named beneficiary in a benefit certificate has not a vested interest therein, it allowing substitution of beneficiaries at pleasure of insured; so that, though there was no substitution, one claiming the benefit through the beneficiary has the burden of proving she survived insured.

3. Under the by-laws of a beneficial association providing that, in case of the death of the designated beneficiary before that of insured, the benefit shall be paid insured's relatives in a certain order, and if a designation shall fail for illegality "or otherwise" the benefit shall be so payable to the relatives, the relatives take, where the beneficiary and insured perish in the same disaster, and there is no proof that the beneficiary was the survivor.

4. A by-law of a beneficial association providing no benefit shall be made payable to any foreign resident relates only to the designation of a beneficiary, and does not prevent such a person taking under the by-law making the

benefit payable to insured's relatives in case of the beneficiary dying before him.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Bill of interpleader by the Supreme Council of the Royal Arcanum against Martin V. Kacer, administrator of Florence L. Yocum, deceased, and Gertrude M. Harris and Nettie Scanavi. From judgment for Kacer, Harris and Scanavi appeal. Reversed.

The Royal Arcanum is a fraternal beneficial association incorporated under the laws of Massachusetts, and doing business in this state. On the 12th day of March, 1886, it issued a benefit certificate on the life of Harry C. Yocum, by which it promised to pay his daughter and only child, Florence, $3,000 upon satisfactory evidence of the death of said Harry C. Yocum and the surrender of the certificate, provided that said certificate had not previously been surrendered by him and another issued at his request.

Among the objects of the association declared in its constitution and by-laws is the following: "To establish a widows' and orphans' benefit fund, from which, on satisfactory evidence of the death of a member of the order who has complied with all its lawful requirements, a sum not exceeding three thousand dollars shall be paid to the wife, children, relatives of or persons dependent upon such member, as limited and described in the laws of said order relating to benefit certificates, as he may direct in accordance with said laws." One section of the by-laws (323) requires each applicant for insurance to enter on his application the name, residence, and relationship or dependence of the person to whom he desires the benefit paid, who must be either a person dependent on the insuring member for support, or a relative within one of the twelve gradations enumerated in the next section, which specifies two classes of persons who may be made beneficiaries, the first class consisting of the member's kindred in different degrees, and the second class of persons dependent on him for support. Said section, in so far as it need be quoted, is as follows:

"Sec. 324. A benefit may be made payable to any one or more persons of any of the following classes only: Class First: Grade 1st. Member's wife. Grade 2nd. Member's children and children of deceased children and member's children by legal adoption. Grade 3d. Member's grandchildren. Grade 4th. Member's parents and member's parents by legal adoption. Grade 5th. Member's brothers and sisters of the whole blood. Grade 6th. Member's brothers and sisters of the half blood. Grade 7th. Member's grandparents. Grade 8th. Member's nieces and nephews. Grade 9th. Member's cousins in the first degree. Grade 10th. Member's aunts. Grade 11th. Member's uncles. Grade 12th. Member's next of kin who would be distributees of the personal estate of such member upon his death intestate. Class Second: To an affianced wife or to any person who is dependent upon the member for maintenance (food, clothing, lodging, or education)."

Satisfactory proof of the dependency of the beneficiary on the member is required before a certificate will be issued in favor of a person not related to the insured, and further proof of dependency at the time of the member's death before payment will be made, and the issuance or assignment of certificates to secure the creditors of members is forbidden.

Other regulations pertinent to the questions arising in this cause are the following:

"Sec. 330. If Designation Fails. If, at the time of the death of a member who has designated as beneficiary a person of class second, the dependency required by the laws of the order shall have ceased, or shall be found not to have existed, or if the designated beneficiary is his wife, and they shall be divorced upon the application of either party, or if any designation shall fail for illegality or otherwise, then the benefit shall be payable to the person or persons mentioned in class first, sec. No. 324, if living, in the shares and order of precedence by grades as therein enumerated, the persons living of each precedent grade, taking in equal shares per capita, to the exclusion of all persons living of subsequent enumerated grades, except that, in the distribution among persons of grade second, the children of deceased children shall take by representation the share the parent would have received if living. If no one of said class first shall be living at the death of the member, the benefit shall revert to the widows' and orphans' benefit fund.

"Sec. 331. Death of One or More Beneficiaries. In the event of the death, before the decease of a member, of one or more of the beneficiaries, designated by him in accordance with the laws of the order, if he shall have made no other or further disposition thereof, as provided in the laws of the order upon his death, that part of the benefit made payable to the deceased beneficiary or beneficiaries shall be paid to the surviving beneficiary or the surviving beneficiaries equally.

"Sec. 332. Death of All Beneficiaries. In the event of the death of all the beneficiaries designated by the member in accordance with the laws of the order, before the decease of such member, if he shall have made no other or further disposition thereof, as provided in the laws of the order, the benefit shall be disposed of as provided in section 330; excepting that, if in such event the member shall leave surviving him his wife and a minor child or children of a marriage prior to that with such wife, the benefit shall be payable as follows: One-third thereof to such wife, and two-thirds thereof to all the minor children of said member equally."

Mr. Yocum and his daughter were aboard a naphtha launch, the Paul Jones, which left New Orleans on the 28th day of December, 1898, for a cruise, in search of health and pleasure, around the coast of the Gulf of Mexico to Belleair, Fla. Eight persons were on the launch, none of whom was seen alive after it reached the waters of the Gulf. The boat was destroyed by some unknown cause, and all on board must have perished. Portions of the boat itself and of the garments of its passengers and crew were afterwards found on the beaches of small islands near the coast, and not far east of the mouth of the Mississippi river, as were the bodies of the pilot and one young lady, but the remains of Mr. Yocum and his daughter were never found.

The administrator of the daughter claimed the money due on the benefit certificate issued on her father's life, and so did Gertrude M. Harris and Nettie Scanavi, who are his nieces and next of kin, the former of them residing in St. Louis and the latter in Vienna, Austria. On account of these conflicting claims, the Supreme Council of the Royal Arcanum filed a petition against the claimants, paid the money into court, and asked that they be compelled to interplead for it, which was ordered.

Much evidence was introduced about the comparative health and strength of Mr. Yocum and his daughter when they started on their cruise, for the purpose of showing who was likely to survive longest in a disaster to the boat; but a rehearsal of it would be useless, for it made no impression on us as tending to prove which survived. Nothing in the record throws the faintest light on the causes or incidents of the catastrophe, and it will probably remain forever one of many mysterious tragedies of the sea. Judgment was given below for the administrator of Florence Yocum's estate, and the nieces appealed.

Wm. F. Woerner, for appellant. W. H. Clopton and W. S. Anthony, for respondent.

GOODE, J. (after stating the facts).

One feels the need of the repudiated presumptions of the civilians in dealing with this case, in which there is an utter lack of either positive or circumstantial evidence concerning the occurrences necessary to be known in order to render an indubitably correct judgment. The wisdom of the common law in never indulging a presumption as to which of several persons who perished in the same disaster survived longest has been unduly vaunted; for the civil law has recourse to that means of settling disputes concerning ownership of property only in instances where there is no proof, and then it becomes absolutely necessary to determine the ownership by some rule more or less arbitrary. The presumptions of those continental codes which follow the Roman law are more apt to hit the truth than others, because they are based on attributes of age and sex which fix the average strength of individuals, and their ability to prolong their lives in shipwrecks or...