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the beneficiary nor the administra- icate, so far as disciosed by the form tor of the member of the mutual of the question propounded by the benefit association is a proper party Court of Appeals. to bring suit against the association

All the Justices concur. for the benefit named in the certif

ANNOTATION.

Disposition of benefit fund in benefit society on failure of beneficiary in ab

sence of specific provision for such contingency.

I. In general, 762.
II. Estate of beneficiary, 762.
III. Estate of member, 764.
IV. Heirs of member, 767.

V. Wife and children of member, 770.
VI. Persons in eligible classes of bene-

ficiaries, 774.
VII. Reversion to society, 777.

1. In general.

of. Supreme Colony, U. 0. P. F. v. This annotation does not include Towne (1914) 87 Conn. 644, 89 Atl. cases where the distribution of the 264, Ann. Cas. 1916B, 181; Sovereign fund in a mutual benefit society in Camp, W. W. v. Muth (1920) 91 case of failure of a beneficiary is N. J. Eq. 460, 109 Atl. 853. governed by a specific provision of

II. Estate of beneficiary. the constitution or by by-laws of the society, as it is assumed that the con

It is a general rule that the benetract of membership is made with

ficiary designated in a benefit certifireference to the by-laws of the organ

cate has only a contingent interest ization, and that they have become

which is devested by his death bea part of the contract.

fore that of the insured, so that nothIt is difficult to align the cases on

ing passes to the beneficiary's estate this question with accuracy as to the

in such case, in the absence of an extheory on which the benefit fund is

press provision to that effect in the to be distributed in the absence of

laws of the order. a beneficiaryfor the disposition

California. - Supreme Council, A. thereof depends on, or rather is L. H. v. Gehrenbeck (1899) 124 Cal. affected by, the persons whom the

43, 56 Pac. 640. member left surviving him. The Colorado. Rollins V. McHatton aim, therefore, has been to classify (1891) 16 Colo. 203, 25 Am. St. Rep. with reference to the terms employed 260, 27 Pac. 254; Finnell v. Franklin by the court to describe the persons, (1913) 55 Colo. 156, 134 Pac. 122. or classes of persons, entitled in the Connecticut. — Supreme Lodge, N. particular instance; although it is not E. 0. P. v. Hine (1909) 82 Conn. 315, clear but that in many instances, as, 73 Atl. 791; Supreme Colony, U. 0. for example, where the fund is award- P. F. v. Towne (1914) 87 Conn. 644, ed to the “estate” or to the “heirs” of 89 Atl. 264, Ann. Cas. 1916B, 181; the member, the term used is an ac

Order of Scottish Clans v. Reich cident in the choice of words rather (1916) 90 Conn. 511, 97 Atl. 863. than intentional.

Iowa. Schmidt v. Northern Life It will be observed that in a num- Asso. (1900) 112 Iowa, 41, 51 L.R.A. ber of the cases set out herein the 141, 84 Am. St. Rep. 323, 83 N. W. association is not denying its liability 800; Cooper v. Order of Railway Confor the fund, as in the reported case, ductors (1912) 156 Iowa, 481, 137 N. but has expressed its willingness to W. 472; Bush v. Modern Woodmen pay the fund to the person to whom (1915) 182 Iowa, 515, 152 N. W. 31, the court directs it shall be paid. 162 N. W. 59.

And it has been said that under Kansas. Boice v. Shepard (1908) such circumstances the court will 78 Kan. 308, 96 Pac. 485. Pilcher v. make an equitable distribution there- Puckett (Modern Woodmen v. Puck

ett) (1908) 77 Kan. 284, 17 L.R.A. the member of a beneficiary conferred (N.S.) 1083, 94 Pac. 132.

upon the latter the beneficial interMassachusetts. Sargent v. Su- est and the proceeds of the policy preme Lodge, K. H. (1893) 158 Mass. when such became due, and the estate 557, 33 N. E. 650.

thus acquired, although liable to be Minnesota. Richmond v. Johnson defeated by the appointment of the (1881) 28 Minn. 447, 10 N. W. 596. new beneficiary, possessed the inher

Mississippi. - Carson v. Vicksburg ent qualities of an estate of a beneBank (1897) 75 Miss. 167, 37 L.R.A. ficiary under an ordinary policy of 559, 65 Am. St. Rep. 596, 22 So. 1; life insurance, and was a valuable Sykes v. Armstrong (1916) 111 Miss. asset, which at the death of the bene44, 71 So. 262.

ficiary devolved upon his administraNebraska. Warner v. Modern tor in whom the title remained unWoodmen (1903) 67 Neb. 233, 61 less devested by the member in his L.R.A. 603, 108 Am. St. Rep. 634, 93 lifetime by the designation of a new N. W. 397, 2 Ann. Cas. 660.

beneficiary in the manner prescribed New Jersey. Golden Star Frater- by the by-laws, and that neither the nity v. Martin (1896) 59 N. J. L. 207, children nor the grandchildren of the 35 Atl. 908.

deceased member were entitled to any Texas. Grand Lodge, C. K. P. v. interest in the fund in their own Mackey (1907) Tex. Civ. App. 2,

right. 104 S. W. 907.

In Supreme Council, C. K. A. v. Wisconsin. Given v. Wisconsin Densford (1900) 21 Ky. L. Rep. 1574, Odd Fellows Mut. L. Ins. Co. (1888) 49 L.R.A. 776, 56 S. W. 172, infra, it 71 Wis. 547, 37 N. W. 817.

was said that the beneficiary named in And see the reported case (DISTRICT a certificate of membership in a beneGRAND LODGE, G. U. 0. 0. F. V. fit association is vested with a definite COTHRAN, ante, 759).

interest in the benefit fund which will As a consequence of the right of be due on the certificate upon the a member of a mutual benefit associa- death of the member, which can only tion to change at will the beneficiary be defeated by the member making in the certificate held by him, the other or different disposition of that beneficiary, upon designation, ac- part secured to the original beneficiaquires merely an expectancy, revoca- ry. ble at any time during the life of the And in Johnson v. Hall (1891) 55 insured, which does not ripen into a Ark. 210, 17 S. W. 874, it was held property right until his death. Su- that as the benefit certificate constipreme Colony, U. O. P. F. v. Towne tuted an ordinary insurance policy, (1914) 87 Conn. 644, 89 Atl. 264, Ann. and as the member had no power to Cas. 1916B, 181.

change the beneficiary named therein But it has been held that the in- in the absence of an express authorterest in a benefit certificate in an ization by the policy or the by-laws association whose by-laws entitle a of the association, the beneficiary member to designate and change the acquired a vested interest in the cerbeneficiary at will goes to the bene- tificate upon its issuance, which deficiary's representatives, and not to scended to her heirs upon her death the representatives of the member, prior to the death of the holder of the upon the death of the member after certificate. that of the beneficiary, without hav- But under a statute providing that ing designated new beneficiary. when insurance is effected by any Thomas v. Cochran (1899) 89 Md. person on his life, in favor of some390, 46 L.R.A. 160, 43 Atl. 792; Ex- one other than himself having an inpressman's Mut. Ben. Asso. v. Hur- surable interest, “the lawful benelock (1900) 91 Md. 585, 80 Am. St. ficiary thereof other than himself, or Rep. 470, 46 Atl, 957.

his legal representatives, shall be enThe court in the Cochran Case (Md.) titled to its proceeds as against the supra, stated that the designation by creditors and representatives of the

a

persons effecting the same,” it has by-law of the society to the effect that been held that where the beneficiary the share of one of two beneficiaries, predeceased the insured, and no other who died during the life of the inbeneficiary was designated, the per- sured, should go to the other beneficisonal representatives of the benefici- ary pro rata, the court holding ary were entitled to the benefit, as that in the light of the statute above against the insured person's repre- referred to, the by-law must be consentatives. Neal v. Shirley (1910) strued to apply only when the de137 Ky. 818, 127 S. W. 471; Buckler ceased beneficiary left no issue. v. Supreme Council, C. K. A. (1911)

III. Estate of member. 143 Ky. 618, 136 S. W. 1006; Vaughan v. Modern Brotherhood (1912) 149 Ky.

It has been stated by a number of 587, 149 S. W. 937; Hall v. Ayer

courts that as a general rule a mem(1907) 32 Ky. L. Rep. 288, 105 S. W.

ber of a mutual benefit association 911. These decisions seem to be has no property rights in the fund based upon the ground that under

which the association undertakes to such statute the beneficiary has a vest

pay upon his death, but has only a ed interest in the benefit fund, which

power of appointing a beneficiary. can only be devested by the act of

United States. Worley v. Norththe member in his lifetime. And in

western Masonic Aid Asso. (1882) 3 Bright v. Supreme Council, C. K. L.

McCrary, 53, 10 Fed. 227. A. (1919) 183 Ky. 388, 209 S. W. 379,

Colorado. Finnell v. Franklin it was held that the Act of March 22,

(1913) 55 Colo. 156, 134 Pac. 122; 1916, chap. 27, 16, changing this

Rollins v. McHatton (1891) 16 Colo. rule to conform to the general rule

203, 25 Am. St. Rep. 260, 27 Pac. 254. that the beneficiary's interest in the

Connecticut. Order of Scottish fund is a contingent one, which does

Clans v. Reich (1916) 90 Conn. 511, not vest until the death of the mem

97 Atl. 863. ber, did not operate to bar the heirs of

District of Columbia. Masonic a beneficiary who died prior to the

Mut. Relief Asso. v. McAuley (1882) death of a member of a mutual benefit

2 Mackey, 70. association, from taking the bene

Georgia. DISTRICT GRAND LODGE, ficiary's interest, notwithstanding

G. U. 0. 0. F. v. COTHRAN (reported that the by-laws of the insurer were

herewith) ante, 759.

Kansas. changed to conform to the statute,

Boice v. Shepard (1908) and provided that the entire proceeds

78 Kan. 308, 96 Pac. 485.

Nebraska. were to go to the surviving benefici

Warner v. Modern ary upon the death of one, since

Woodmen (1903) 67 Neb. 233, 61 neither the statute nor the by-laws

L.R.A. 603, 108 Am. St. Rep. 634, 93 could devest a vested right of the

N. W. 397, 2 Ann. Cas. 660. beneficiaries in such certificates, al

New Hampshire.-Eastman v. Prov. though they were applicable to con

ident Mut. Relief Asso. (1883) 62 tracts thereafter made.

N. H. 555. In Supreme Council, C. K. A. v.

New York. Alexander V. Page Densford (Ky.) supra, it was held

(1914) 150 N. Y. Supp. 104. But see that the share of one of the three

Simon v. O'Brien (1895) 87 Hun, 160, beneficiaries in a benefit certificate,

33 N. Y. Supp. 815. who died during the life of the in- Pennsylvania. - Dickerson v. Midsured, leaving issue, was in the nature vale Beneficial Asso. (1919) 264 Pa. of a testamentary gift, and would 415, 107 Atl. 778. pass to such issue in accordance with Virginia. - Smith v. Hatke (1913) the rule as to devises or legacies pre- 115 Va. 230, 78 S. E. 584. scribed by the Kentucky statute But other

have held that providing that, in case of the prede- where a member of a mutual benefit cease of the devisee or legatee, his society dies without leaving an eligi. share should pass to the issue of such ble beneficiary the benefit fund in devisee or legatee, notwithstanding a such circumstances goes to the estate

cases

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of the insured, or to his personal rep- he can dispose of by contract or will, resentatives.

nor does such benefit descend to his Arkansas. Henry v. Knights & heirs; and, as the estate is not Daughters of Tabor (1922) 156 Ark. among the 'classes of beneficiaries 165, 246 S. W. 17.

named in the statute, he cannot desIllinois. Kaemmerer v. Kaem- ignate his estate as a beneficiary. merer (1907) 231 Ill. 154, 83 N. E. Supreme Colony, U. O. P. F. v. Towne 133.

(1914) 87 Conn. 644, 89 Atl. 264, Ann. Iowa. Smith v. Supreme Tent, K. Cas. 1916B, 181, supra. M. (1905) 127 Iowa, 115, 69 L.R.A. Where the beneficiary's right to the 174, 102 N. W. 830; Mueller v. Wood- funds on a certificate issued by a mumen of World (1909) 144 Iowa, 228, tual benefit society is forfeited because 122 N. W. 903; Weiditschka V. Su- she murdered the insured, the society preme Tent, K. M. (1919) 188 Iowa, cannot escape liability on the cer183, 170 N. W. 300, 175 N. W. 835. tificate, but the same may be enforced

New York. Simon v. O'Brien by the insured's administrator for the (1895) 87 Hun, 160, 33 N. Y. Supp. benefit of his estate, on the ground 815; Re Smith (1904) 42 Misc. 639, of a resulting trust created in favor 87 N. Y. Supp. 725.

of the estate by the forfeiture of the North Carolina. Little v. Caldwell rights of the beneficiary named. (1912) 158 N. C. 351, 39 L.R.A. (N.S.) Schmidt v. Northern Life Asso. 450, 74 S. E. 10.

(Iowa) supra. The court in reaching Pennsylvania. - Jennings v. Grand this conclusion followed the doctrine Fraternity (1917) 67 Pa. Super. Ct. that where there has been no desig139.

nation, or the designated beneficiary England. Cleaver v. Mutual Re

dies or

was ineligible, the associaserve Fund Life Asso. (1892] 1 Q. B. tion holds the money in trust for the 147, 61 L. J. Q. B. N. S. 128, 66 L. benefit of the estate of the insured, T. N. S. 220, 40 Week. Rep. 230, 56 stating that, as the defendant had J. P. 180-C. A.

obligated itself to pay on the death And it has been held that upon

of the insured, the rule of public the death of the insured, in the ab- policy denying the beneficiary in such sence of an eligible beneficiary, a re- case the right to recover on the policy sulting trust in favor of the insured's should not be extended to defeat all estate is created. Schmidt v. North- claims thereon. And it was further ern Life Asso. (1900) 112 Iowa, 41, stated that if the designation of the 51 L.R.A. 141, 84 Am. St. Rep. 323, beneficiary was treated as a bequest 83 N. W. 300, supra, II.; Haskins v. the same result would follow, for a Kendall (1893) 158 Mass. 224, 35 Am. lapsed legacy descends to the heirs St. Rep. 490, 33 N. E. 495; Cleaver of the testator. v. Mutual Reserve Fund Life Asso. And under similar facts

a like (Eng.) supra.

conclusion was reached in Cleaver v. But this view has been expressly Mutual Reserve Fund Life Asso. repudiated by other cases.

Cook v.

(Eng.) supra. Supreme Conclave, I. 0. H. (1909) In Weiditschka v. Supreme Tent, 202 Mass. 85, 88 N. E. 584; Warner K. M. (1919) 188 Iowa, 183, 170 N. W. v. Modern Woodmen (1903) 67 Neb. 300, 175 N. W. 835, where the by-law 233, 61 L.R.A. 603, 108 Am. St. Rep. which provided that, in case an ineli634, 93 N. W. 397, 2 Ann. Cas. 660, 'gible beneficiary was named, the fund supra, II.

should revert to the association, was A member of a benefit society who, held invalid, the estate of the deunder its laws, has the power to

ceased member was held to be entitled designate the person to whom the to the benefit fund where the beneficibenefits shall be paid and to designate ary designated by the member was a new beneficiary, does not have, ineligible. in consequence of such power, a Where the certificate of memberproperty interest in the benefit which ship directed that the proceeds there

of should be paid to the member's incapable of taking the proceeds unestate, and the general purpose of the der the law, the administrator of the statute under which the order was deceased could recover as if no beneorganized, and of the constitution of ficiary had been named. the order, was to make suitable provi- The personal representative of the sion for the welfare of its members assured, as against his widow, who during their lifetime in cases of sick- was not designated as a beneficiary, ness or distress, and to provide for and as against the personal reprethe legal and proper beneficiary after sentative of a beneficiary who had death, the word “estate," as thus used, predeceased the insured, has been will be construed to mean that the held entitled to the benefit, where the member designed the proceeds to go by-laws, in providing for the mode of to such person, being a competent paying the benefit, direct that they beneficiary, as would take under his shall be paid by check payable to the personal estate under the Statute of beneficiary or the legal representative Distribution, so that the fund will not of the deceased member, the society become a part of the general estate having disclaimed all right to the of the member to the extent that it fund, which it stood ready to pay will be liable for his debts or the pay- as the court should direct. Order ment of bequests under his will. Re of Scottish Clans v. Reich (1916) 30 Smith (1904) 42 Misc. 639, 87 N. Y. Conn. 511, 97 Atl. 863. Supp. 725, holding that the father, The by-laws of a mutual benefit who was alive at the time of the death association, which state that the purof the member, was, under the Statute pose of the order is to provide a fund of Distribution, entitled to the pro- to be paid to the widow, orphans, or ceeds, and directing that the funds legal representatives of a member, should be paid to his administrator should be given a liberal construction, to be disposed of among his next of and, when so construed, in a case kin, he having died after the death where the beneficiary had predeceased of the son.

the member and no other beneficiary And in Henry v. Knights & Daugh- had been designated, the proceeds go ters of Tabor (1922) 156 Ark. 165, to the member's administrator, upon 246 S. W. 17, where the beneficiary, his death, for the benefit of the surwho had murdered the assured, was viving wife and child, who are enby reason of public policy forbidden titled to the amount they would into collect the benefit, it was held

herit from the decedent in case of his that the insurer would not be ab- intestacy, as if the fund were a part solved from payment, but would be of his estate. Sykes v. Armstrong required to pay the benefit to the (1916) 111 Miss. 44, 71 So. 262. And estate of the insured.

the court further held that in no case In Smith v. Supreme Tent, K. M. where there are any of the class liv. (1905) 127 Iowa, 115, 69 L.R.A. 174, ing who were designated as probable 102 N. W. 830, in a action by the beneficiaries in the policy does the beneficiary named, who by statute insurance entirely lapse, or is it un. was ineligible, against the insurance collectable. company, the proceeds were awarded A certificate of membership in a to the father of the deceased, who was mutual aid society, which designates also the administrator of his estate, the member's wife as beneficiary, is where the father had intervened and payable only to the wife in case of her the insurance company did not resist surviving the husband, and where the the payment of the sum. And while wife dies prior to the death of the the court stated that it had no husband, a resulting trust in favor casion to elaborate on the question as of his estate is created upon his to who was entitled to the proceeds, death. Haskins v. Kendall (1893) 158 inasmuch as the association did not Mass. 224, 35 Am. St. Rep. 490, 33 N. resist payment, yet it was well set- E. 495, so holding notwithstanding tied that where the beneficiary was a by-law of the society provided that

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