Whiteman v. Heinzman
| Decision Date | 17 February 1920 |
| Docket Number | No. 9886.,9886. |
| Parties | WHITEMAN v. HEINZMAN et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.
For majority opinion, see 124 N. E. 405.
Clifford V. Du Comb, Floyd A. Deahl and Louis M. Hammerschmidt, all of South Bend, for appellant.
P. C. Fergus and Van Fleet, Hubbell & Dinnen, all of South Bend, for appellees.
In order that my position may be understood, I deem it advisable to make an additional statement concerning the pleadings.
(1) Appellant is the administrator of the estate of W. T. Sherman Lammedee, deceased, and in his capacity as such administrator he instituted this action against the Supreme Tribe of Ben Hur, a fraternal beneficiary association, to recover on a certificate issued to Lammedee as a member of the association. The certificate recites, in addition to other things, that Lammedee “is entitled to all the rights, benefits and privileges of beneficial membership in the Tribe of Ben Hur, and to designate as his beneficiary under this certificate Laura Lammedee, bearing to him the relationship of wife”; also that “this certificate is issued subject to, and to be construed and controlled by, the laws, rules and regulations of the order, now in force or which may hereafter be adopted.” It is averred in the complaint that section 121 of the by-laws of the association provides:
“In the event of the death of a designated beneficiary prior to the death of the member and the member dies without having made disposition of said portion or all of his certificate, the same shall be paid to the legal representative of said deceased member for the use and benefit of the deceased member's heirs, if any survive.”
It is further averred in the complaint that on the death of Laura Lammedee the member designated as beneficiary his stepmother, Jane Lammedee, and that Jane died prior to the death of the member; that the member died without having designated any other beneficiary; and that by reason of the premises the association “is indebted to this plaintiff, and this plaintiff is entitled to recover from said defendant the sum of $1,500.”
(2) The association filed a bill of interpleader, in which it recited the history of its dealings with Lammedee. Of the averments of the bill the following will serve to show the attitude of the association:
That after the death of Jane Lammedee the member expressed a desire to the association to designate new beneficiaries, and paid the usual fee for making the change; that he signed and executed a change of beneficiary in the following words:
“I, William T. S. Lammedee, to whom the within certificate was issued, do hereby revoke my former direction as to the payment from the benefit fund due at my death, and now authorize and direct such payment to be made to Louis Heinzman, Jr., George Heinzman, Jr., and Glen A. Heinzman, bearing relation to me of nephews.
That the association received said change of beneficiary together with the following letter:
“South Bend, Indiana, Nov. 29, '14.
“Dear Sir and Brother: It is my desire to have these nephews named as beneficiaries to my certificate as they are partially dependent and their ages are from 5 months to 7 years old; they are children of my wife's brother, as I have no other beneficiary kindly transfer and oblige.
“Yours in T. B. H.
“William T. S. Lammedee.”
That said certificate, change of beneficiary, and letter were mailed to the association by one Orpha A. Elliot, local representative of the association at South Bend, Ind., who transmitted therewith the following letter written by herself:
“South Bend, Ind. Dec. 4, 1914.
“Yours fraternally,
“Orpha A. Elliot, Scribe.”
That the association attached to the certificate a modified form of change of beneficiary in blank, which form is still attached to said certificate and reads as follows:
“I, William T. S. Lammedee, to whom the within certificate was issued, do hereby revoke my former direction as to the payment from the benefit fund at my death, and now authorize and direct such payment to be made to Louis Heinzman, Jr., George Heinzman, Jr., and Glen A. Heinzman, nephews, children of my wife's brother, and dependent on me, bearing relation to me of children of my wife's brother and dependent on me.
“Dated at South Bend, Ind. this _______ day of December, 1914.
_________.
“Attest: _________, Scribe.
“The Supreme Tribe of Ben Hur hereby consents to the above change of beneficiary.
“Dated at Crawfordsville, Indiana, this ______ day of ______, 191-.
“[Seal of Supreme Scribe.]
“_________, Supreme Scribe.”
That the association then transmitted, not directly to Lammedee, but to its local representative, the certificate with the change of beneficiary attached, together with the following letter:
“Fraternally yours, Supreme Scribe.”
That the association is informed and believes that Lammedee died before he was able to comply with the suggestions contained in said letter. That the Heinzman children by their guardian are claiming the amount due on said certificate as the beneficiaries of Lammedee. That the association ...
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Heinzman v. Whiteman, 11553.
...resulted in a judgment in favor of appellant, which was reversed on appeal. Whiteman v. Heinzman (1920) 72 Ind. App. 385, 124 N. E. 405, 126 N. E. 245. After the cause was remanded for further proceedings, appellant filed a second amended cross-complaint, which alleged, in substance, among ......
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