Supreme Lodge of The Knights of Pythias v. Ferrell

• Decision Date: 10 December 1910
• Docket Number: 16,701
• Citation: 83 Kan. 491,112 P. 155
• Parties: THE SUPREME LODGE OF THE KNIGHTS OF PYTHIAS v. LLOYD B. FERRELL, Appellant, and EDITH M. STANLEY (formerly Edith M. Ferrell), Appellee
• Court: Kansas Supreme Court

112 P. 155

83 Kan. 491

THE SUPREME LODGE OF THE KNIGHTS OF PYTHIAS v. LLOYD B. FERRELL, Appellant, and EDITH M. STANLEY (formerly Edith M. Ferrell), Appellee

No. 16,701

Supreme Court of Kansas

December 10, 1910

Decided July, 1910.

Appeal from Sedgwick district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTE OF FRAUDS--Executed Parol Antenuptial Contract. In an action by a widow to maintain her rights derived through the execution of a parol antenuptial contract, the contract having been executed by both parties thereto, the statute of frauds has no application. Such executed contract is valid.

2. FRATERNAL INSURANCE--Change of Beneficiary--Antenuptial Agreement. Where in the part performance of an antenuptial contract a husband procures a change in a certificate of insurance, in which his children were the sole beneficiaries, so as to make his wife an equal beneficiary with the children, and where she has fully executed the antenuptial contract on her part, she thereby obtains an equitable interest in the certificate; and he can not thereafter, without her consent, surrender the certificate and obtain the issuance of a new one in which a third party is named as the sole beneficiary, and thus devest her of her interest in the certificate which was procured pursuant to such contract.

3. FRATERNAL INSURANCE--Possession of Beneficiary Certificate. The rights of a beneficiary named in a certificate of insurance in nowise depend upon the possession thereof by the beneficiary.

Kos Harris, and V. Harris, for the appellant.

Walter T. Matson, and Dempster O. Potts, for the appellee.

OPINION

SMITH, J.:

The Supreme Lodge of the Knights of Pythias, a fraternal insurance corporation, commenced this action and in its petition alleged that one George Ferrell, deceased, was at the time of his death a member in good standing of the organization; that he had a benefit certificate for $ 3000; that the amount was due upon the certificate, and that the corporation was ready to pay, but that there was a dispute as to who among the. parties whom it made defendants in the action, namely, Lloyd B. Ferrell, Edith M. Stanley (formerly Ferrell), Adele C. Ferrell and Paul H. Ferrell, was entitled to receive payment. Lloyd B. Ferrell answered and alleged that he was entitled to the entire sum of $ 3000 under the certificate. Edith M. Stanley answered and alleged that she was entitled to the sum of $ 1000 of the amount of the certificate. Defendants Adele C. Ferrell and Paul H. Ferrell did not appear.

The undisputed facts are that about May, 1885, George Ferrell became a member of the association and took out a certificate for $ 3000, payable to his wife, Mary E. Ferrell; that sometime prior to the 14th day of June, 1899, Mary E. Ferrell died, leaving two children, Adele C. Ferrell and Paul H. Ferrell; that on. June 14, 1899, George Ferrell surrendered the certificate and took out a new one, naming his two children as the beneficiaries; that on the 10th day of January, 1901, he surrendered the second certificate and took out a new one for the same amount, payable to Edith M. Ferrell, his then wife, and to his two children, in the sum of $ 1000 to each; that the last-named certificate remained in force until about the 5th of December, 1907, when George Ferrell surrendered it and took out a new certificate for the same amount, making Lloyd B. Ferrell, his brother, the sole beneficiary; and that shortly thereafter, and before the commencement of this action, George Ferrell died.

In her answer Edith M. Stanley alleged that prior to her marriage to George Ferrell, and at a time when his two children stood as the beneficiaries of the certificate, George Ferrell proposed to her that if she would marry him and care for his children he would provide her a home and care for her, and would have the certificate changed so that she should receive $ 1000 from the benefit certificate and each of the children $ 1000 in case of his death before her death; that in consideration of such promise she consented to marry him, and did marry him, and that he executed the antenuptial contract by surrendering the old certificate and procuring a new one to be issued in accordance with the terms of his agreement; and that the subsequent change of the certificate, making it payable entirely to Lloyd B. Ferrell, was without her consent and in violation of her rights under the contract.

This claim Lloyd B. Ferrell denied, and a trial of the issue thus formed was had to the court and a jury until Edith M. Stanley had offered her evidence, Lloyd B. Ferrell had demurred thereto and the court had overruled the demurrer, whereupon the parties agreed that the jury should be discharged and the case decided by the court, Lloyd B. Ferrell reserving his exceptions to the ruling on the demurrer to the evidence. The court rendered judgment in favor of Edith M. Stanley as to the amount claimed. To reverse this judgment Lloyd B. Ferrell brings the case here.

Edith M. Stanley, being called as a witness in her own behalf, was asked to relate the conversation by which the alleged antenuptial contract was made. An objection was made thereto on the grounds that the contract, not being in writing, was void. The objection was overruled, and the ruling is assigned as an error. Section 3838 of the General Statutes of 1909 (Laws 1905, ch. 266, § 1), being a portion of the statutes to prevent frauds and perjuries, reads in part "No action shall be brought whereby . . . to charge any person upon any agreement made upon consideration of marriage, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing." It is urged that this provision makes the contract absolutely void, and for that...