Wandell v. Mystic Toilers
| Decision Date | 16 December 1905 |
| Citation | 105 N.W. 448,130 Iowa 639 |
| Parties | GEO. WANDELL, Appellant, v. MYSTIC TOILERS, GEO. W. KEITH, Intervener |
| Court | Iowa Supreme Court |
Rehearing denied Thursday, May 24, 1906.
Appeal from Delaware District Court.--HON. FRANKLIN C. PLATT, Judge.
ACTION to recover on a benefit certificate issued to Mrs. Geo. Emma Wandell, now deceased; benefit payable to plaintiff, her husband. The association made no defense, but intervener, the father of Mrs. Wandell, asserted the right to the benefit by reason of an attempted change of beneficiary in his favor. Trial in equity. Judgment for intervener. Plaintiff appeals.
Affirmed.
R. E. & V. T. Price and Fred B. Blair, for appellant.
Yoran Arnold & Yoran and Dunham, Norris & Stiles, for appellee.
A benefit certificate for $ 1,000 was issued in 1900 to Mrs. Wandell as a member in the defendant association, benefit payable to plaintiff, her husband. On June 6, 1903, Mrs. Wandell, who was then sick at the home of her father, the intervener, living in the country about five miles from the town of Strawberry Point, signed the following indorsement on the back of this certificate:
I, Mrs. Geo. Emma Wandell, to whom the within certificate was issued, do hereby surrender the same, and request that a new one be issued in the amount of one thousand dollars, and that the payment of the benefit fund due at my death be made to George Keith, bearing relationship to myself of father.
Witness my hand this 6th day of June, 1903.
Mrs. Geo. Emma Wandell.
The certificate, with this indorsement upon it, was at once taken by the intervener to Strawberry Point, and delivered to the secretary of the subordinate council of defendant association, of which deceased was a member, and accepted by him, with the transfer fee of $ 1, for the purpose of forwarding the certificate and the proper portion of the fee to the secretary of the Grand Lodge at Des Moines for cancellation of the certificate and issuance of a new certificate, in which the intervener should be named as beneficiary. On the evening of the same day the local secretary, having signed his name as attesting witness to the indorsement by Mrs. Wandell directing a change of beneficiary, and having also procured the signature of the president of the subordinate council as attesting witness to such signature, mailed the certificate, with the indorsement thereon, to the office of the association at Des Moines. The secretary of the local council received the certificate about three o'clock in the afternoon of June 6th, and, if he had promptly deposited it in the mails, it would have been carried in the usual course of business on the train leaving Strawberry Point at five o'clock of the same afternoon (which was Saturday), and would have reached the principal office of defendant in Des Moines on Monday morning, the 8th. The certificate was not, however, mailed until after seven o'clock in the evening, and the next mail for Des Moines did not leave until Monday morning. The certificate in fact reached defendant's office at Des Moines on the morning of the 9th, and on that day an entry of cancellation and issuance of a new certificate in accordance with the indorsement was entered on the face of the certificate, and a new certificate, bearing the same number, and in the name of intervener, as beneficiary, was sent to the secretary of the lodge at Strawberry Point, and was delivered by the secretary to the intervener on June 10th. Mrs. Wandell died on June 8th, after the certificate, in due course of mail, had left Strawberry Point, and before it had reached the office of defendant in Des Moines. Notice of the death of Mrs. Wandell was received at the principal office in Des Moines on June 11th.
The sole controversy in this case is as to whether, under these facts which were stipulated by the parties, the attempted change of beneficiary had become effective before the death of Mrs. Wandell. The provisions of the constitution and laws of the defendant association relating to change of beneficiaries, which are by reference made a part of the certificate of membership and binding upon the member, are as follows:
Art. 12. Change of Beneficiaries. If a member in good standing at any time desires a change in the name of his or her beneficiary or beneficiaries, he or she shall pay to the secretary of the subordinate council the fee of one dollar, and deliver to him or her his or her benefit certificate, with the surrender clause on back thereof duly filled in and executed by him or her, designating therein the change desired in the name of the beneficiary or beneficiaries. The execution of such surrender clause by the member upon his or her benefit certificate shall be in the presence of, and attested by, the secretary of the subordinate council, and have the seal attached; provided, however, that, if the member be so situated that he or she cannot execute the surrender of the benefit certificate in the presence of the secretary of his or her council, the signature of the member thereto may be attested by a jurat or the acknowledgment of any person authorized by the law to administer oaths and take acknowledgments. The secretary of the subordinate council shall forward said certificate, with said surrender clause indorsed thereon, and one-half of said fee of one dollar to the supreme secretary, who shall thereupon issue a new benefit certificate payable to the beneficiary or beneficiaries named in said surrender clause--provided, further, that the new beneficiary or beneficiaries so named shall be within the description of beneficiary or beneficiaries contained in Art. 11 hereof. No change in the designation of the beneficiaries shall be of binding effect, unless made in compliance with these articles.
A mere intention on the part of the member to change the beneficiary, not acted upon in the manner required by the constitution of the association during the lifetime of the member, is ineffectual, and the first beneficiary, on the death of the member without the required steps having been taken to effect a change, acquires a vested right. Modern Woodmen v. Little, 114 Iowa 109, 86 N.W. 216; Shuman v. A. O. U. W., 110 Iowa 642, 82 N.W. 331. But, if those acts which are required by the constitution of the association to be done in order to effect the change have been done, then the change is effectual, even though some purely ministerial act remains to be done by the officers of the association, such as the making of a proper record, and the issuance of a substituted certificate. Waldum v. Homstad, 119 Wis. 312 (96 N.W. 806); Counsman v. Modern Woodmen (Neb.) 69 Neb. 710, 96 N.W. 672; Luhrs v. Luhrs, 123 N.Y. 367 (25 N.E. 388, 9 L.R.A. 534, 20 Am. St. Rep. 754). The beneficiary in a certificate of insurance in a mutual benefit association does not have a vested interest in the benefit provided for by the certificate, but is subject to the provisions of the constitution and laws of the association with reference to changing beneficiaries, and if, by such change, he is deprived of the prospective benefit, he cannot complain. Carpenter v. Knapp, 101 Iowa 712, 70 N.W. 764; Brown v. Grand Lodge, 80 Iowa 287, 45 N.W. 884; Simcoke v. Grand Lodge, 84 Iowa 383, 51 N.W. 8; Martin v. Stubbings, 126 Ill. 387, 404 (18 N.E. 657, 9 Am. St. Rep. 620). And the beneficiary, not being a party to the contract, has no standing to object to a change which has been actually consummated, nor to the failure of the member to comply with formalities required by the contract, provided the application has been in fact made and acted upon by the association during the lifetime of the member. Manning v. A. O. U. W., 86 Ky. 136 (5 S.W. 385, 9 Am. St. Rep. 270); Schmidt v. Iowa Knights of Pythias Ins. Co., 82 Iowa 304, 47 N.W. 1032.
These propositions are not controverted by counsel for appellant but they insist that the change of beneficiary was not effected by Mrs. Wandell during her lifetime, because her indorsement on the certificate was not signed in the presence of the secretary of the local council, nor attested by a jurat or acknowledgment, as required by the provisions of the constitution; that the secretary of the local council had no authority to waive this requirement; and that the new certificate was not issued by the general office of the association at Des Moines until after Mrs. Wandell's death, and therefore not until the rights of appellant had become vested. With reference to the sufficiency of Mrs. Wandell's acts, some facts are to be considered which do not appear from the agreed statement, but were established by the testimony of witnesses on the trial. It thus appears that, before Mrs. Wandell signed the indorsement on the policy directing a change of beneficiary, she had some discussion with her attending physician as to how the desired change should be made, and that he expressed doubt as to whether her signature to the indorsement would be sufficient, in the absence of attestation of the secretary of the local council as having been made in his presence, or a jurat or acknowledgment by a person authorized to administer oaths or take acknowledgments, and the physician advised her that she could ascertain the sufficiency of such indorsement only by application to the secretary himself. That some question might properly be entertained as to the necessity for attestation by the secretary of the signature in his personal presence is indicated by the language of this court in Simcoke v. Grand Lodge, 84 Iowa 383, 51 N.W. 8, where the court refrained from deciding that under a similar provision a personal witnessing of the signature by the local officer is necessary. Thereupon the intervener, at Mrs. Wandell's request, took the...
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