Walsh v. Sovereign Camp of Woodmen of World

• Decision Date: 19 April 1910
• Citation: 127 S.W. 645,148 Mo.App. 179
• Parties: LIZZIE WALSH, Appellant, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, Defendant; ST. LOUIS UNION TRUST COMPANY, Respondent
• Court: Missouri Court of Appeals

127 S.W. 645

148 Mo.App. 179

LIZZIE WALSH, Appellant, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, Defendant;

ST. LOUIS UNION TRUST COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 19, 1910

Agrued and Submitted March 15, 1910. [Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster and Hon. Geo. H. Williams, Judges.

AFFIRMED.

STATEMENT.--One Patrick W. Walsh was a member of the Woodmen of the World and held a beneficiary certificate in that order which made the fund ($ 2000) payable at his death to his wife, Lizzie Walsh. Patrick Walsh died at the city of St. Louis on the 5th of December, 1907. He had been sick at intervals and a patient in hospitals in St. Louis at intervals prior to his death and the certificate showing his membership issued by the Sovereign Camp of Woodmen of the World and designating his wife Lizzie as beneficiary was kept in a bureau drawer in the home, apparently in the custody of the wife, but there is nothing in the record to show that she had ever refused to turn it over to her husband. Her testimony is to the effect that she kept it locked in the bureau drawer with her other papers to keep the children from getting at them and that the key of this drawer lay on the mantel of the room in which the bureau was kept. There was a blank form, apparently printed on the back of this certificate, to be filled up in case the owner of the certificate desired to change the beneficiary. About the end of November, 1907, Patrick Walsh was confined in the City Hospital in St. Louis, sick. On the 29th of November, a Mr. Schulenburg, who was clerk at the time of Sovereign Camp No. 242, Woodmen of the World, of which Patrick Walsh was a member, went to the city hospital with half a dozen friends, apparently to call on Walsh. The hospital authorities only allowed two of them to go up together and Mr. Schulenburg and Mr. Muntzel went up into Walsh's room. Asked what Walsh had said on that occasion as to this benefit certificate, Mr. Schulenburg testified that he didn't hardly know what he said as he was a little bit vindictive at the time, but he said he wanted to give all of the benefit to the child; appeared to be vindictive against his wife; wanted to make the change to his child. Walsh did not have the certificate with him and nothing was done about making a change in the beneficiary that night of the 29th. Schulenburg, answering the request of Walsh, told him that he would be down the next night to make the change that Walsh wanted. The next night Schulenburg telephoned to a notary to meet him at the hospital that night, that is, November 30th, and they met there. He testifies that he could not find any proper blank that the law required to fill out, so he went down to the hospital that night and had the notary there and they made out a blank form as near as they could make it. As made it is as follows:

"To the Sovereign Camp, Woodmen of the World:

"Whereas beneficiary certificate Number 47886, issued on the 16th day of December, 1904, payable to my wife, Lizzie Walsh, I hereby desire to change the same to my three children as follows Thomas W. Walsh, James H. Walsh and John P. Walsh.

"The original being withheld, I hereby take this means of relinquishing same and ask for a new certificate in the names of the above beneficiaries."

Walsh could not write and it was written by the notary. Walsh made his mark, the notary writing his name, and Schulenburg signed as a witness, and thereupon the certificate of the notary that it had been subscribed and sworn to before him as notary on the 30th of November, 1907, by Patrick W. Walsh was attached, the notary affixing his official seal. The reason this was not on a blank provided by the order was, as stated by Mr. Schulenburg, that he had no blanks outside of the certificate and Walsh did not have the certificate there, so that it could not be filled out on the back of the certificate. At the time Walsh said nothing about where the certificate was. The sentence in this affidavit, "the original being withheld," was written in by the notary as what Walsh said at the time. They asked him why he didn't have the certificate but he did not say anything further about it being withheld. Mr. Schulenburg testified that they had tried to fix the paper up in about the same form as the regular one, and that the expression in the affidavit, that the certificate was withheld, was put in because Walsh did not have it there with him. Asked if he, as secretary, did not know that the change of beneficiary had to be on the back of the certificate, he answered, "It should be done, otherwise--no, it can be done in a different way, on a blank form under oath. We issue oftentimes certificates that are lost or destroyed or stolen, or something else." Didn't have the form with him at the time they wrote this, so they had to make up this form. Asked by the court why he had stated that Walsh appeared to be vindictive toward his wife, he stated that his reason for saying that was that the night before or ten days or so before he (Walsh) had attempted to change the certificate. This was when Walsh and Mr. Schulenburg were at Walsh's house, and he said to Schulenburg, "I want to give her (referring to his wife) fifteen hundred dollars and five hundred dollars to the baby," and that he had done all he could or something of that kind. Schulenburg was asked by the court as to what Walsh had said as to why he changed now from that division of the money, five hundred dollars to the baby and fifteen hundred dollars to his wife, and now wanted to change it by giving all to his three sons and not give his wife anything, and witness answered that he didn't remember that he said anything particular about that; he didn't say anything about it to the notary, no more than that he wanted to make the change; all the notary knew about it was that he wanted to make the change; that he wanted to make it all over to the children, but he did not give any reason for making it to the three children. After the paper had been executed on this night of the 30th of November, Schulenburg, as clerk of the Sovereign Camp, sent it to the Sovereign Camp, Woodmen of the World, at Omaha, Neb. November 30, 1907, the night on which this paper was executed, was Saturday night, but witness was not certain whether he sent it Sunday or Monday. He sent it to the Sovereign Camp at Omaha; put it in an envelope and stamped the envelope and mailed it to head-quarters. The notary, Mr. Kredell, testified that when Mr. Schulenburg telephoned him to meet him at the city hospital at 7:30 on the evening of November 30th, he got there about that time, taking his seal with him, and Mr. Schulenburg took him up to Walsh's room, saying Walsh wanted to change his beneficiary. Mr. Kredell then testified as follows in answer to the direction of the court that he tell everything that happened:

"I asked Mr. Walsh what he wanted done, and he told me he wanted to give each one of his children one-third, I think it was; and then I got out a piece of paper, and began to give me the names of the three children who he wanted to have this money in case of his death. And he give me the names, I wrote them down on a piece of paper, and walked out in the hall, and asked one of the nurses if she would give me a piece of paper to write, to make an affidavit. In the meantime, I asked Mr. Schulenburg if he didn't have one of the forms from the head camp, etc. He didn't have any with him. So I told him we would have to do the best we could without it. I walked out in the hall, asked the nurse for a piece of paper, she got me a piece of paper. We sat down and wrote up this affidavit. After we had written it up we went back to the room; I told Mr. Walsh I was ready, read it off to him, and asked him if he could sign. 'No,' he says, he thinks he is a little too weak. I said, you can make a mark? He says, 'Yes.' So he laid in bed, I made the cross and he touched my pen. After that we walked out in the hall. There was no desk in the room. I therefore had to go back in the hall to get something to write on. Went back into the hall, I put my seal on and signed it. Mr. Schulenburg signed it as a witness. I think that was all there was to it."

He further testified that he swore Walsh to the paper. Walsh held up his hand and swore to it after he had read it over to him. Walsh did not say anything and after he had sworn to it, the notary attached his seal and signed his name; heard no other conversation and had no other conversation. When the notary went in and understood what was to be done, as he testified, he asked Walsh where the certificate was and he said he didn't have it; that was all he said about it, except that witness thought he said that his wife had it; had no recollection of Walsh saying anything about why he did not have it or why he did not get it from his wife. Asked by the court why he had put in the words "certificate withheld," he answered that was because Walsh didn't have it in his possession.

To repeat, Patrick Walsh died on the night of the 5th of December. On the 7th, Mr. Schulenburg received a letter from the sovereign clerk of the defendant order, of date December 5, 1907, addressed to him at St. Louis, as follows:

"I return you herewith the statement of P. W. Walsh for duplicate certificate. It is necessary that same be filled out on the official blank of the order, a copy of which is herewith enclosed. This blank should be signed, attested and sworn to and forwarded to this office when the duplicate certificate will be promptly issued.

"Fraternally,

"J. T. YATES, Sovereign Clerk."

This letter was received by Schulenburg December 7, 1907, it being stipulated by counsel at the trial that...