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shortly after it was made, was delivered by the insured to the plaintiff, as claimed by her, under an oral agreement that she was to pay from her own funds the annual premiums upon the policy, and at the death of the insured she was to receive the amount of the insurance, either as owner of the policy or as the beneficiary named therein, and that she fully performed her part of this agreement. The fact that plaintiff was afterwards divorced from the insured does not defeat her right to the insurance. "White v. Brotherhood of Yeoman, 124 Iowa, 293, 295, 99 N. W. 1071, 66 L. R. A. 164, 104 Am. St. Rep. 323; Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457–462, 24 L. Ed. 251.

The defendant is a life insurance company organized under the laws of Iowa, and is therein conducting such an insurance business, and is not a fraternal or mutual benefit association. This distinction between these two classes of insurance is fundamental, and should be observed in the determination of these questions. In Carpenter v. Knapp, 101 Iowa, 712, at page 724, 70 N. W. 764, at page 766, 38 L. R. A. 128, this distinction and the rule in Iowa are clearly stated as follows:

“It is the general rule that a beneficiary under an ordinary life policy takes a rested interest therein at the moment the policy is executed and delivered, which cannot be impaired or defeated by any act of the assured, or of the assured and the company, to which said beneficiary does not assent" (citing many authorities).

To the same effect are Bliss on Life Insurance (2d Ed.) § 517; Wilmaser, Ex'r, v. Continental Life Ins. Co., 66 Iowa, 417, 23 N. W. 903, 55 Am. Rep. 277; Ricker v. Charter Oak Life Ins. Co., 27 Minn. 193, 6 N. W. 771, 38 Am. Rep. 289; Central Bank v. Hume, 128 U. S. 195, 206, 9 Sup. Ct. 41, 32 L. Ed. 370; Indiana National Life Ins. Co. v. McGinnis, 180 Ind. 9, 101 N. E. 289, 293, 45 L. R. A. (N. S.) 192: 3 A. & E. Enc. Law (2d Ed.) 980; Washington Life Ins. Co. v. Berwald, 97 Tex. 111, 76 S. W. 443, 1 Ann. Cas. 682, and note; Freund v. Freund, 218 I11. 189, 75 N. E. 925, 109 Am. St. Rep. 283; Thomas v. Thomas, 131 N. Y. 205, 30 N. E. 61, 27 Am. St. Rep. 582; Strong v. Supreme Lodge, 189 N. Y. 346, 82 N. E. 433, 12 L. R. A. (N. S.) 1206, 121 Am. St. Rep. 902, 12 Ann. Cas. 941; Perry v. Tweedy, 128 Ga. 402, 57 S. E. 50, 119 Am. St. Rep. 393, 11 Ann. Cas. 46; Savage v. Modern Woodmen of America, 84 Kan. 63, 113 Pac. 802, 33 L. R. A. (N. S.) 773; 25 Cyc. 889-894.

And it follows that such policies are assignable, unless that be forbidden by statute, the company's charter, or the terms of the policy itself. Carpenter v. Knapp, above. The only exceptions to this rule are some early cases in Wisconsin, Clark v. Durand, 12 Wis. 223, which seems to have been modified in Ellison v. Straw, 116 Wis. 207, 92 N. W. 1094, and some later cases. 25 Cyc. 890. But as to mutual benefit associations the rule is different, and it is generally held in such cases, wherever the question has arisen, that the member may change the beneficiary named in the certificate or policy, unless the contract itself, its charter, or the statute provides to the contrary. Carpenter v. Knapp, above, and the authorities there cited. But this must be done in strict compliance with the contract, where that prescribes how the change shall be made. Wendt v. Iowa Legion of Honor, 72

Iowa, 682, 34 N. W. 470; Stephenson v. Stephenson, 64 Iowa, 534, 21 N. W. 19; Shuman v. A. O. U. W., 110 Iowa, 642, 82 N. W. 331; Modern Woodmen v. Little, 114 Iowa, 109, 86 N: W. 216; and see Wandell v. Mystic Toilers, 130 Iowa, 639, 105 N. W. 448; also Bauer v. Samson Lodge, 102 Ind. 262, 1 N. E. 571; Assurance Fund v. Allen, 106 Ind. 593, 7 N. E. 317; Freund v. Freund, 218 111. 189, 75 N. E. 925; American Legion of Honor v. Smith, 45 N. J. Eq. 466, 17 Atl. 770; Grand Lodge v. Connolly, 58 N. J. Eq. 180, 43 Atl

. 286. Many other authorities may be cited to the same effect, and it may be admitted that authorities to the contrary might be cited. But the authorities to the contrary are mostly based upon, or assumed to be, certificates issued by mutual benefit or fraternal associations. Thus in Wandell v. Mystic Toilers, 130 Iowa, 639, 105 N. W. 448, above, the contract in suit was upon a benefit certificate issued by the Mystic Toilers, a purely fraternal association, to a Mrs. Wandell, payable to the plaintiff who was her husband as beneficiary. The association made no defense, but the father of Mrs. Wandell intervened, and claimed the right to the insurance upon the ground that his daughter, the insured, prior to her death had changed the beneficiary from her husband to her father. The only question for determination was whether or not the change was effected in the manner prescribed in the certificate. Some members of the court were of opinion that the change had been so effected, and that the intervener was entitled to recover upon that ground. Others of the court were of opinion that the recovery should be upon the principles of equity. The previous cases in Iowa are reviewed, and Wendt v. Legion of Honor, 72 Iowa, 682, 34 N. W. 470, Stephenson v. Stephenson, 64 Iowa, 534, 21 N. W. 19, Modern Woodmen v. Little, 114 Iowa, 109, 86 N. W. 216, and Carpenter v. Knapp, 101 Iowa, 712, 70 N. W. 764, 38 L. R. A. 128, are approved.

In Central Bank v. Hume, 128 U. S. 195, at page 206, 9 Sup. Ct. 41, at page 44, 32 L. Ed. 370 (1915), there is a full review of the authorities, and it is said by Mr. Chief Justice Fuller:

"It is indeed the general rule that a policy of insurance (ordinary life) and the money to become due under it belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and there is no power in the person procuring the insurance, by any act of his, by deed or by will, to transfer to any other person the interest of the person named without his or their consent" (citing authorities, including Ricker v. Charter Oak Ins. Co., 27 Minn. 193, 6 N. W. 771 [38 Am. Rep. 289), and other cases before cited).

In Modern Woodmen v. Little, 114 Iowa, 109, 86 N. W. 216, where it was contended that a change of beneficiary in a fraternal association) by the insured in a manner other than as provided in the policy effected such change, the Supreme Court said:

"We cannot agree with the reasoning or the conclusions in these cases. Surely it is not correct to say that the provisions of the contract as to the mode in which beneficiaries may be changed are solely for the benefit of the insurer. They are for the benefit of all concerned, to the end that it may at all times be certain who is the beneficiary.

We think it entirely clear, upon reason and authority, that where the parties have agreed upon a mode by which a change of beneficiaries may be effected the change can only be made in that mode, unless by subsequent agreement

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a different mode is agreed upon."

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To the same effect are Stephenson v. Stephenson, 64 Iowa, 534, 21 V. W. 19; Wendt v. Legion of Honor, 72 Iowa, 682, 34 N. W. 470; Hainer v. Legion of Honor, 78 Iowa, 245, 43 N. W. 185; Shuman v. Ancient Order of United Workmen, 110 Iowa, 642, 82 N. W. 331.

The last-named case was a suit by the plaintiff upon a certificate of the Ancient Order of United Workmen, a purely fraternal association, issued to Phillip J. Shuman, in which the plaintiff, his widow, was named as beneficiary. The defendant Gruver filed an answer and crosspetition, in which it was admitted that plaintiff was the beneficiary named in the certificate, but alleged that by written indorsement upon said certificate the insured surrendered the same to the order and directed a new certificate to issue, in which Gruver should be named as beneficiary. The order admitted its liability on the certificate to some one, and paid the amount due thereon into court, to await the final determination of the matter. The trial resulted in a judgment in favor of defendant Gruver. The constitution of the order provided for a change of beneficiary in the following language:

“Any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in a form prescribed ; * * but no change shall be valid, or have any binding force or effect, until such change shall have been reported to the grand recorder, the old certificate filed with him, and new beneficiary certificate issued thereon:

Provided, however, should it be impracticable for the recorder to witness the signature of the brother, attestation of his signature may be made by a notary public, or an officer authorized to acknowledge deeds, and a change made in any other manner shall not be valid."

On the back of the certificate was the following indorsement: "I, P. J. Shuman, to whom the within certificate was issued, do hereby revoke my former direction as to the payment of the beneficiary fund due at my death, and now authorize and direct such payment to be made to John Wesley Gruver, bearing the relationship to myself of nephew. Witness my band and seal this 27th day of May, 1897. P. J. Shuman. Witnesses to sig. nature: J. G. Graves, I. W. Scott. Attest: A. Campbell, Recorder."

The recorder, Campbell, was not present when this indorsement was signed by P. J. Shuman, nor did he see Shuman after he signed it and before his death. His attestation was made some time after Shuman died, but on the same day. No fee was paid for the change. Shuman died on the next day, May 28th. The certificate, with the indorsement thereon, was mailed to the grand lodge the same day that Shuman died, and was received at its office in Des Moines the next day; but no new or other certificate was issued by the grand lodge. Judge Sherwin, speaking for the Supreme Court, said:

"That the constitution of the Ancient Order of United Workmen entered into and became a part of the certificate of insurance issued to Phillip J. Shuman cannot be questioned. The constitution gave him the right to change beneficiaries, but explicitly pointed out the manner in which such change should be made. This method was fixed, and was binding upon the assured. It was the method he had agreed to, and he had no absolute legal right to effect a change of beneficiaries in any other manner [citing Stephenson v. Stephenson, 64 Iowa, 534, 21 N. W. 19, Wendt v. Legion of Honor, 72 Iowa, 682, 34 N. W. 470, and other cases). The appellee Gruver contends that this case, having been tried in equity, falls within certain exceptions, which have been recognized by the

courts in some cases involving a change of beneficiaries"-which exceptions are named in Supreme Conclave v. Cappella (C. C.) 41 Fed. 1.

Continuing, Judge Sherwin said: "This case is not within

the exceptions named. The attempted change of beneficiaries was void, under the circumstances, and did not vest any right in John W. Gruver. This conclusion is not in conflict with Supreme Conclave v. Cappella (C. C.) 41 Fed. 1, relied upon by appellee, nor with the other cases cited by him which we have been able to examine. The plaintiff is entitled to the proceeds of the certificate issued by the Ancient Order of United Workmen to Phillip J. Shuman, her husband, and the custodian of said fund is directed to pay the same to her."

The only apparent difference between that case and this is that in this case a duplicate policy of insurance was issued upon the affidavit of the insured that the policy was lost, which was not true, and that the mother of the insured was named upon the duplicate policy as the beneficiary in lieu of the plaintiff; but this difference is deemed immaterial, and not sufficient to warrant a ruling different from that held in the Shuman Case.

The defendant relies upon Townsend v. Fidelity & Casualty Co., 163 Iowa, 713, 144 N. W. 574, L. R. A. 1915A, 109, as sustaining its contention. That was a suit upon two accident insurance policies wherein the insured a single man had named as beneficiaries a brother in one of the policies and a sister in the second. After his injury he made a will, in which he bequeathed to the plaintiff the proceeds of the first of the policies and certain other personal property, and to one Ellis in trust for his creditors, the proceeds of the second policy. Two days after his death, notice thereof, and of the will, and the attempted change of beneficiaries therein was given to the defendant Casualty Company. The company, holding to the view that no change of beneficiaries had been effected, declined to recognize the alleged rights of the legatees under the will, and they brought these actions to recover upon the policies. The person named as beneficiary in each of the policies intervened and asked to be adjudged entitled to receive the fund. The trial resulted in judgments in their favor, from which the plaintiff legatees under the will appealed. The defendant answered, admitting the issuance of the policies, the death of the insured, and that they were in force at the time of his death, but alleged that, according to the terms of the policies, the matter of changing the beneficiaries of such insurance is governed by rules indorsed upon the policies, which are:

"Sec. 20. The consent of the beneficiary shall not be required to the surrender or assignment of this policy, or to the change of beneficiary, or to any other change in the policy. No assignment of interest under this policy shall bind the company, unless the written consent of the company is indorsed hereon by the president, vice president, or one of the secretaries of the company.

It was held that under these rules there were no restrictions upon the right of the insured to change the beneficiaries in such manner as he might elect, and that such a change was effected by his will; that the assignment of the policy only was restricted, but, as no assignment thereof was attempted, the insured was at liberty to dispose of the pro

ceeds of the policies in any way that he deemed advisable. That no departure from any prior decisions of the court was intended appears from the fact that Stephenson v. Stephenson, 64 Iowa, 534, 21 N. W. 19, Modern Woodmen v. Little, 114 Iowa, 109, 86 N. W. 216, and some other cases are reaffirmed. The case upon its facts seems inapplicable to any question involved in this controversy.

[4] The policy in suit was prepared by the defendant, and in plain, unambiguous terms provides :

“If the right of revocation has been reserved, or in case of the death of the designated beneficiary, the insured may at any time while the policy is in force, and subject to any existing assignment thereof, designate a new beneficiary (with or without the right of revocation) by filing written request therefor at the home office, together with this policy; such change to take effect on the indorsement thereof on the policy by the company."

These terms, if complied with, would have protected all of the parties to this controversy. The defendant knew that plaintiff was named as beneficiary in the policy, and should have known that upon its issuance and delivery she acquired an interest therein that could only be divested by a strict compliance with the terms it had so written. Instead of such compliance, it accepted from the insured his affidavit that the policy was lost (when in fact it had not been) and his agreement of indemnity therein, and issued in lieu thereof a duplicate, upon which it indorsed the name of his mother as beneficiary, in lieu of the plaintiff, in plain violation of the terms of the policy. If it shall suffer because of such attempted change, it will be because of its own disregard of the contract it had so written.

The conclusion therefore is that the second division of defendant's answer, praying equitable relief against the plaintiff, should be dismissed, for want of equity, at defendant's cost.

Upon plaintiff's petition and the first division of the defendant's answer thereto, a jury trial having been waived, the plaintiff is entitled to judgment against the defendant for $5,000, with interest thereon from the date of the delivery of plaintiff's proofs under the policy upon the defendant, with costs.

It is ordered accordingly.

M. HOHENBERG & CO. v. MOBILE LINERS, Inc.

(District Court, S. D. Alabama. July 24, 1917.)

No. 574. REMOVAL OF CAUSES 12—RIGHT OF REMOVAL-CONSTRUCTION OF STATUTE.

Where a federal District Court has jurisdiction of a suit by reason of diversity of citizenship and the amount in controversy, and such suit is brought in a state court of a state of which defendant is not a resident, his right to remove the cause into the federal court for that district given by section 28 of Judicial Code (Act March 3, 1911, c. 231, § 28, 36 Stat. 1091 [Comp. St. 1916, $ 1010]) is absolute, and cannot be contested by plaintiff on the ground that he could not have brought the suit in that court over defendant's objection.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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