text:
    BANKRUPTCY.
    [Circuit Court of Cuyahoga County.]
    Joshua K. Exline et al v. Jas. T. Sargent et al.
    Decided, November 6, 1901.

      Bar of a Discharge in — Does Not Include Judgment — For Alienation of Wife’s Affections — Purpose of the Exceptions in the Bankruptcy Act — Claims Not Subject to Release.

    The exception found in Section 17 of the Bankruptcy Act of 1898, providing that there shall he no release from a judgment “for willful and malicious injuries to the person or property of another,” includes a judgment for alienation of the affections of a wife, and a discharge in bankruptcy is not a bar to such a claim.
    Marvin, J.; Hale, J., and Caldwell, J., concur.
    Heard on error.
   This is a proceeding in error brought to reverse the judgment of the court of common pleas of this county in a case in which the plaintiffs in error were plaintiffs and the defendants in error were defendants.

The plaintiff, Exline, recovered a judgment in the sum of six thousand dollars against the defendant, Sargent, in the court of common pleas on or about June 26, 1900, an undivided one-half of which judgment he assigned to the plaintiff, Ong. Execution was issued upon such judgment, which was returned wholly unsatisfied; whereupon these plaintiffs brought their action against the defendant, Sargent, and numerous others, it being alleged in the petition that the other defendants had in their hands or under their control certain property of Sargent liable to be applied to the satisfaction of this judgment; the purpose of the proceeding being to have such property subjected to the payment of the judgment.

To this petition the defendant, Sargent, answered and among other defenses made in such answer is the averment that by proceedings duly had in the United States District Court for the Northern District of Ohio, the defendant, Sargent, was discharged in bankruptcy on November 3, 1900. And then this allegation is made:

“That the claim of plaintiff in his petition filed in the cause in which said judgment was rendered and entered, was as follows: ‘That while the said plaintiff and his wife were living happily together, all of which the defendant well knew, the defendant (James T. Sargent) wrongfully intended to injure plaintiff and deprive him of the society and services of his wife, and maliciously poishned the mind of his said wife against this said plaintiff * * * defendant maliciously enticed her away from plaintiff and caused said wife to lose the affection and love which she once sustained to plaintiff. That he so alienated the affections of said wife for this plaintiff that this plaintiff’s wife applied for legal separation and obtained it on October 10, 1898. ’ * * * That by reason of the premises above set forth, he has been wrongfully deprived of the affections, society and services of his wife.’ ”

This allegation of the answer was not denied by the plaintiffs and upon motion by the defendants for judgment on the pleading the court gave judgment in their favor.

On the part of the plaintiffs in error it is urged that the discharge in bankruptcy pleaded did not operate to relieve the bankrupt from liability upon the judgment upon which the claim in the present case is founded.

Section 17 of the bankruptcy act provides, so far as it applies to this ease, that — ■

“A discharge in bankruptcy shall release a bankrupt from all his provable debts except such * * * (2) Are judgments in actions * * * for willful and malicious injuries to the person or property of another.”

Unless the claim of the plaintiffs comes within the exception ’ contained in the foregoing quotation from the statute, the discharge in bankruptcy operated to release Sargent from liability thereon.

Numerous authorities are cited in support of the proposition that a husband may have an action against him who seduces his wife from him, and it is urged that because of this, one is injured in his property when the wife is so enticed away.

It is not always true that one has property in that for injury to which an action may be maintained; that is to say, one may have a right of action for an infringement of his rights where no property is involved. If this were not true, the language of the bankrupt act itself, where it excepts from the debts of which the bankrupt is relieved by his discharge malicious injuries to the property and to the person of another, would be tautological, because certainly one has a right of action against another for injuries to his person, and yet Congress after using the word “property” adds the word “person,” clearly showing that there might be injury to one’s person for which an action could be maintained which would not be an injury to his property.

On the other hand, it is urged that property can never be separated from things • that strictly the word “property” means only the ownership in things md not the things themselves, but that, in its true sense, i't includes no more than things; and it is, therefore, urged that there can be no property right invaded by the seduction of a wife.

An examination of the authorities, however, shows that many courts of last resort have held the word “property” to have a broader meaning.

In O’Hara v. Stack, 90 Pa. St., 477, it is held that the profession of a priest is property. This was in an action where a bishop of the Roman Catholic Church had, in violation of the laws of the church, prohibited a priest of the church from exercising his ministerial functions in the diocese.

In People v. Harry Cadman, 57 Cal., 562, it is held that the right to appeal to a higher court from the judgment of a lower court is property; and this was a criminal action, in a ease where Cadman was prosecuted for having sent a letter to one Clune which contained a threat to expose him to disgrace if he did not withdraw an appeal which he had taken in a ease which had been decided against him. The statute under which the prosecution was had, made it an offense to send a threatening letter “with intent to extort any money or other property from another.” And the court held, as already said, that this offense was committed by the sending of such letter with intent to prevent the party from taking his appeal.

The language used in the opinion, at page 564, is:

“Assuming, as we do, that the right to take and prosecute an appeal is property within the meaning of the code, it follows that a threat made for the purpose of inducing an appellant to dismiss an appeal is a threat made with intent to extort property from another.”

It is urged further on behalf of the defendant in error, that the judgment from the payment of which it is claimed that discharge in bankruptcy released Sargent, was not an injury to his person; and, strictly speaking, this is true; yet in Delamater v. Russell, 4 How. Pr., 234, it is held that an action for criminal conversation with the plaintiff’s wife was an injury to the person of the plaintiff. In the opinion, this language is used:

“Section 179 authorizes the arrest of a defendant ‘in an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of this state, or is about to remove therefrom, or where the action is for an injury to person or character,’ * * * I think the act complained of was an injury to the person of the plaintiff. It was an invasion of his personal rights. The action was brought for depriving the plaintiff of the comfort, society,' fellowship, aid and assistance of the wife.”

Again, this language is used:

“It is not supposed that it was the intention of the Legislature to excuse from imprisonment judgment debtors in actions for crim. con., seduction of a daughter, or beating of a servant; and subject defendants to imprisonment in all other actions for wrong; nor does the statute, in my opinion, demand any such construction. On the contrary, I think the language employed is used in its established legal signification, and though it might have been more explicit, covers the class of actions in question. ’ ’

In Tute v. James, 46 Ver., 60, 63, this language is used: “The person consists of both soul and body. ’ ’ It certainly may be well urged that one’s mind is subjected to great anguish and thereby injured by the seduction of his wife, and, if that which causes mental suffering is an injury to the person, then this judgment was clearly for an injury to the person of the plaintiff.

In re Freche, 109 Fed. Rep., 620, decided in the District Court of the United States for the District of New Jersey on Jnne 3, 1901, it was held that:

W. C. Ong, for plaintiffs in error.

E. J. Blandin and Ed. S. Meyer, for defendants in error.

“A judgment recovered in a court of New Jersey for seduction of the plaintiff’s minor daughter, which must be based on loss of services but also includes damages for personal injuries to the plaintiff through being subjected to mental anguish, disgrace, etc., is one for a ‘willful and malicious injury to the person or property of another/ within the meaning of the seventeeth section of the bankrupt act.”

See also the case of 4 Cush., 408.

It may be that it is a somewhat strained construction of words to say that the judgment sought to be enforced in this action was for a malicious injury to either the person or the property of the plaintiff, and yet it can hardly be supposed that it was the intention of Congress to except from the operation of the discharge in bankruptcy those judgments obtained for a malicious assault upon one’s person or a malicious destruction of one’s chattels, and not except such an injury as that for which this judgment was obtained. Doubtless the real purpose of the exception was not to relieve the bankrupt from those debts which were the result of his own malicious and willful wrongdoing; and the language used must have been .intended for that purpose, and intended to include all such debts. If the claim made by the defendant in error is sound, then the bankrupt would be relieved from any judgment obtained against him for the killing of the plaintiff’s wife, for it could be urged in that case with as much plausibility as in this, that no injury had been done either to the person or the property of the husband.

We conclude, therefore, that the judgment sought to be enforced in this action comes within the exception expressed in the words “willful and malicious injury to the person or property of another,” within the meaning of the bankrupt act; and the judgment of the court of common pleas is reversed.


source: Caselaw Access Project

license: Public Domain

text:
    BENEFICIAL ASSOCIATIONS.
    [Circuit Court of Mahoning County.]
    Anna Earley v. James M. Earley and the Supreme Tent, K. O. T. M.

    Decided, March Term, 1902.

      Knights of Maccabees — Benefit Certificates Issued by — Who May Become Beneficiaries — “Dependent” Signifies a Class- — Irregularities in Change of Beneficiary — Held, to Have Been Waived — Interest of Beneficiary in a Mutual Benefit Certificate Not Tested — And Not Ground for Complaint Where a Change is Made — Findings of Fact by the Court.

    1. The word “dependent” as used in the benefit certificates of the Knights of Maccabees signifies a class by itself, and does not qualify the words “mother, father, sister, brother” which follow.
    2. A change in the beneficiary under a policy in a mutual benefit association is not rendered invalid by reason of irregularities, where the change is made substantially as provided for in the laws of the association, and to its full satisfaction and that of the insured, and the highest officers of the association have knowledge of the irregularities.
    3. In a finding of facts relative to a change of beneficiary, the material fact to be found was that the second certificate changing the beneficiary was issued, and every intendment is in favor of its regularity.
    Cook, J.; Burrows, J., and Laubie, J., concur.

       Affirmed by the Supreme Court without report, December 15, 1903.

   This action in the common pleas court was by the Supreme Tent of the Knights of the Maccabees of the world against Anna Earley and James M. Earley. The court made special findings of fact and conclusions of law. No objection is made to the findings of fact, the complaint being by plaintiff in error that the court erred in its conclusions of law from the facts. The facts, as found by the court, that are material to the controversy. are substantially as follows:

Section 174 of the Supreme Tent of the Knights of the Maccabees is as follows:

“Section 174. No life benefit certificate shall be made payable to any person other than the wife, husband, children, dependent, mother, father, sister, brother, aunt, uncle, nephew, niece, cousin, step-child, step-parent, half-sister or half-brother of the member, nor can any such certificate be assigned, willed or in any manner transferred by a member to any other person than the above, and no transfer of a certificate will be binding on the order, unless the member shall make such change as hereinafter provided, and consent thereto is'given by indorsement thereon by the supreme record keeper. In case a member desires to change the beneficiary named in his certificate, or reduce the amount thereof, he shall make a written request therefor and deliver the same with his certificate and the sum of fifty cents to the record keeper of his tent. On receiving such written request and the fee therefor, the record keeper shall forward the same to the supreme record keeper, who shall thereupon issue a new certificate bearing the same number as the one surrendered, provided there shall be no law restricting such privilege. Provided, further, that in ease the certificate is lost or in the possession of another who refuses to deliver the same to the member, in such ease he shall make an affidavit setting forth the fact and forward the same with his request for change to the supreme record keeper.”

The principal officers of the corporation are supreme commander, supreme record keeper and supreme finance keeper, whose official positions shall correspond to that of president, secretary and treasurer, respectively. Members must pay assessments monthly, and failing to do so, shall stand suspended from all benefits of the order until regularly reinstated.

Lewis S. Earley, husband of Anna Earley, became a member of the Knights of Maccabees at Beloit, Mahoning county, Ohio, where the subordinate tent was located, February 18, 1893, and upon the same date, at his request, his life benefit certificate for the sum of $2,000 was made payable to his wife, Anna Earley, which was immediately delivered by him to her. That said Lewis S. Earley and Anna Earley lived together as husband and wife at Beloit aforesaid to May 30, 1900, and said certificate was kept in the bureau drawer at their residence, the location of which was known to both, and was the last place it was known to be. Afterwards, on March 27, ,1899, he made a written- request for a change of beneficiary from his said wife, Anna Earley, to his father, James M. Earley. This written request was made upon the regular blank of the tent, and in which written request he set forth, “That the certificate 'in favor of his wife is in the possession of his wife and' she would not return the same; that he wished to change the beneficiary on account of disagreement which will be followed by separation. You will understand this, as there are many things too delicate to mention here, and he therefore could .not surrender the same for cancellation.” This written request containing said statement, also setting forth that he was a member in good financial standing, was delivered to the record keeper of his tent, and was duly authenticated by the officers and seal of his tent and forwarded by the record keeper of his tent to the supreme record keeper. The supi .me record keeper received the same and issued a new certificate dated March 27, 1899, of the same number as the original one, designating the father, James M. Earley, as the beneficiary. The new certificate was signed by the supreme commander and supreme record keeper of the supreme tent, and the seal of the supreme tent attached in accordance with the law of the supreme tent, and sent by the supreme record keeper to the record keeper of the Beloit tent, and was countersigned by the commander and record keeper of his tent, and delivered to the said Lewis S. Earley, who deliyered it to his father. When the new certificate was issued by the supreme'record keeper he stamped upon the written request of Lewis S. Earley for a change of beneficiaries, “original canceled and new certificate issued March 31, 1899.” No affidavit of Lewis S. Earley was sent with the request in writing to the supreme record keeper that the certificate in favor of Anna Earley was in possession of another, neither was any such affidavit made by Lewis S. Earley. Lewis S. Earley and Anna Earley lived together until May 30, 1900, when they separated. At no time did the said Lewis S. Earley ask his wife to surrender such certificate, nor did he give her any information that he intended to change the beneficiary, nor did she have any information or knowledge of any change or intended change of the same until after the death of said Lewis S. Earley. Anna Earley, the wife, continued in possession of the certificate designating her as beneficiary until July or August, 1900, when she lost the same.

Lewis S. Earley died on November 16, 1900, when she, the said Anna Earley, made demand upon the Knights of Maccabees for the payment to her of the $2,000, the death benefit. The father, James M. Earley, also made demand for the payment to him of the death benefit, under the certificate designating him as beneficiary. Such is substantially the statement of fact as found by the court.

The action of the Supreme Tent of the Knights of Maccabees was in equity to determine who was entitled to the fund, and was in the nature of a bill of interpleader — it bringing the money into court and setting forth in its petition that it had no interest in the controversy farther than to protect itself and see that the proper party obtained the fund. The court of common pleas found that the father, James M. Earley, was entitled to the fund under the second certificate, and rendered judgment in his favor.

Three grounds of error are urged by counsel for plaintiff in error.

First. That the father could not be a beneficiary under the laws of the supreme tent.

Second. That defendant in error practiced a fraud upon the supreme tent in the statement that the certificate was in the possession of the wife and that he could not obtain it.

Third. That the change of beneficiary was not made in accordance with the laws of the supreme tent.

Could the father be a beneficiary?

Section 174 provides as to who may be beneficiaries — wife, husband, children, dependent, mother, father, sister, brother, etc.

It is contended that all the classes after dependent are qualified by the word dependent, and that the clause should be read, dependent mother, dependent father, etc., while on the other hand it is claimed that dependent signifies a class of itself. We think the latter is the correct construction. There is nothing whatever to indicate that the word should be read as an adjective or qualifying word. The comma after it, while not in any sense conclusive, very strongly shows that it was intended as a noun, the name of a class. The position of the word is significant. It follows immediately after the classes, wife, husband and children, showing, as we think, to intend a class of persons that would be connected with the immediate family or household, as foster children, grandchildren, or others adopted into the household as part of the immediate family and dependent upon the member for maintenance and support.

The ease of Supreme Council Cath. Benevolent Legion v. McGinness, 59 Ohio St., 531, has some bearing upon the case. The laws of the Benevolent Legion provided that its particular business, among other things, was “to afford moral and material aid to its members and their dependents, by establishing a fund for the relief of sick and disabled members and a benefit fund from which, on satisfactory evidence of the death of a member who shall have complied with all its lawful requirements, a sum not exceeding $5,000 shall be paid to the family or dependents of each member, as he shall have directed. ’ ’ In that case a brother was made a beneficiary, and it was claimed that he was included in the word ‘ ‘ family, ’ ’ it not being averred that he was a dependent, but the court held that could not b'e so; that while the word “family,” in its general significance, would include a brother, yet as used in the laws of the Benevolent Legion it was in a limited sense, and only included those who were the immediate, members of the family and dependent upon the member. So here the word “dependent” no doubt was intended"to signify a class in the family dependent upon the member, and the after designations enlarged the field as to beneficiaries.

While Section 175 of the laws is not included in the findings of fact and is not considered by the court, yet it shows conclusively that that was the intention of the supreme tent in Section 174. It says:

“Section 175. In the event of the death of the. beneficiary or beneficiaries named in the certificate of membership before the death of such member, if no other designation be made, the benefit shall be paid first to the widow, or widower, if living; if no widow or widower, to the children; if no children, to the dependents; if no dependents, to the mother; if no mother, to the father; if no father, to the brothers and sisters, share and share alike.”

We all are, therefore, of opinion that the word “dependent” in Section 174 signifies a class, and that the father was a proper beneficiary.

Was the second certificate in which the charge was made, secured by a fraud practiced upon the supreme tent by Lewis S. Earley ?

The statement in the written request for change of beneficiary by Lewis S. Earley was that a disagreement had arisen between him and his wife which would be followed by separation. The court found that they did afterwards separate. It also found that Lewis S. Earley at no time asked his wife to surrender this certificate. Under these circumstances we fail to see that any fraud was practiced upon the supreme tent. He set forth in his written request that the certificate was in the possession of his wife, and that she would not return it to him. That all might be true without any request. A husband could be fully satisfied as to what his wife would do respecting such a matter, without a distinct request to return the certificate, and the supreme tent was fully informed by Lewis S. Earley as to all the facts in the written request. It seems to us, from the findings of the court, that he acted fairly and honestly in the matter, and that no fraud was committed.

Was the substitution of the father, as beneficiary, for the wife, legally made; that is, was the first certificate actually canceled by the issuing of a new certificate under the laws of the supreme tent and the law governing and controlling such cases ? In other words, which certificate, as between these contesting parties, at the death of Lewis S. Earley, legally existed — the one in which Anna Earley was beneficiary or the one in which James M. Earley was beneficiary?

The supreme tent, by the pleadings, has no interest in the matter. It takes sides with neither party. It is, a mere stakeholder, and says to the court, decide between the parties as to who is entitled to the fund.

It is claimed on behalf of the plaintiff in error, upon this branch of the case, that she is entitled to the fund for the reason that the second certificate was not issued in accordance with Section 174 of the laws of the supreme tent, in this, that no affidavit was made and forwarded by Lewis S. Earley to the supreme tent with the written request for a change of beneficiaries, setting forth that the original certificate was in the possession of another who refused to deliver the same to him, and furthermore, he did not deliver to the record keeper of his tent fifty cents with his written request for a change of beneficiary, to be forwarded to the supreme record keeper with his written request.

Was this indispensably necessary? Here we are divided; a majority of the court think it was not, while the other member thinks it was. At this point, however, one suggestion should be made, which will be referred to hereafter, and that is, there is nothing in the pleadings or findings of fact showing that the fifty cents was not delivered and forwarded.

It should be observed at the outset upon his proposition that the manner of the transfer was perfectly satisfactory to the highest officers of the corporation, the supreme tent, to-wit, the supreme commander and the supreme record beeper, who correspond to the offices of president and secretary of ordinary corporations. They received the written request for the change of beneficiary, with full knowledge that it was not verified and that, no affidavit accompanied it; also that the fifty cents was not paid (if as a fact it was not paid) and issued the new certificate and canceled the old one, and all through the litigation in the lower court made no objection, and are not now objecting to the validity of the new certificate.

This brings us to the question, what are the legal rights of the beneficiary under such certificates.

It is well settled that the distinction between certificates of beneficial societies and policies of life insurance, in request to changes of beneficiaries, is very marked. Indeed, the law respecting life insurance has very little, if any, application to beneficial societies, and especially, upon this particular question. State v. Protection Association of Ohio, 26 Ohio St., 19; State v. Life Association, 38 Ohio St., 281; Benefit Societies & Life Insurance by Bacon, Section 304, 305 and 306.

Whatever rights beneficiaries have in life policies they have by virtue of the contract between the insurance company and the assured. In the case of an ordinary insurance policy the right of the beneficiary in the policy and to the amount to be paid upon the death of the assured, is a vested right, vesting upon the taking effect of the policy. That right can not be defeated by the separate or the combined act of the insured and the company, without the consent of the beneficiary.” Harley v. Heist, 86 Ind., 195 (44 Am. Rep., 285); Damron v. Mutual Life Ins. Co., 99 Ind., 478.

The converse is the rule respecting beneficiaries in mutual benefit associations.

“For many, and indeed for most purposes, mutual benefit associations are insurance companies, and the certificates issued by them are policies of life insurance governed by the rules of law applicable to such policies. There are, however, some essential differences usually existing between the contract evidenced by such certificate and the ordinary contract of life insurance. The most usual difference is the power on the part of the assured in mutual benefit associations to change the beneficiary.” Presbyterian Mutual Benefit Association Fund v. Allen, 7 N. E. Rep., 317 (106 Ind. 593); Elkhart Mut. Aid Association v. Houghton, 2 N. E. Rep., 763 (103 Ind., 286); Bauer v. Sampson Lodge, 1 N. E. Rep., 571 (102 Ind., 262); Bacon Benefit Societies, Sec. 304.

In Richmond v. Johnson, 10 N. W. Rep., 596 (28 Minn., 449), the court said:

“Here is not an ordinary contract of insurance made between an insurance company and another person, the rights of the parties to be determined exclusively by the policy. The right of Charles H. Richmond and of any one claiming through him, depend not on the certificate alone, but rather on his membership in the association; and such rights were defined and controlled by its constitution and by-laws. *
“In Barton v. The Providence Relief Association, 3 Atl. Rep., 627 (63 N. H., 535); the Supreme Court of New Hampshire says, p. 628:
“The power of appointment is the one thing in the contract which was given to the member, and over that power no other person has any control. The right of its free exercise requires its continuance until death. The appointment by Barton of the plaintiff his wife, to the benefit, at the time he became a member was no bar to his right to appoint another or others by a subsequent change. She was no party to the contract, and acquired no vested right in the benefit. The contract was between Barton, her husband, and the defendant, which on the performance of the conditions of membership, agreed to pay the benefit to any person whose name might appear by his entry on the record boolr or the face of the certificate at his death. The power of appointment being free and continuous, no right to the benefit could vest in the plaintiff until it became certain that her name remained in the certificate, as the beneficiary, at her husband’s death. If by the entry of her name as beneficiary the plaintiff acquired any interest whatever in the benefit, it was only a contingent interest which her husband had the power to defeat, and which he has defeated by exercising the power of substitution in the apppintment of other beneficiaries. ’ ’
“It is strenuously insisted that the contract was of such a character that it could not be assigned even equitably by Clark Swift. We think otherwise. Neither the wife nor children had any vested interest, conditional or othetwise, in this insurance money so long as Clark Swift lived and owned and controlled this contract. The contract was between the association and himself. The children paid nothing for their supposed interest. It was a contract which was capable of being rescinded by Clark Swift with the assent of the association. ’ ’

In the case of Anthony v. Massachusetts Benefit Association, 33 N. E. Rep., 577, 578 (158 Mass. 322, 324), it is said:

“The distinction between a policy of insurance and a certificate of a beneficiary association was pointed out by Mr. Justice Devens in Marsh v. American Legion of Honor, 21 N. E. Rep., 1070 (149 Mass., 512, 515), and it was said: ‘All that a beneficiary has during the lifetime of the member who holds the certificate is a mere expectancy which gives no vested rights in the anticipated benefit, and is not property, as, owing to his right of revocation, it is dependent upon the will and pleasure of the holder.’”

The opinion in this last case is sustained by Mr. Justice Lathrop by a number of eases cited in the report. It is unnecessary to quote further from the authorities to sustain this proposition. Mr. Bacon, in his work already referred to, in a note to Section 306, gives a large number from nearly all the states of the union.

The foregoing citations show the distinction, in the law, respecting life insurance policies and beneficiary certificates and establish, as we think, beyond controversy, that the beneficiary named in a certificate of a beneficial society has no vested right in the anticipated benefit; it is not property, but a mere expectancy which may or may not ripen into property. This arises from the fact that the member, under the law of such societies, may change the beneficiary at any time by and with the consent of the society; therefore, during the life of the member, the expectancy may at any time be destroyed and the expectation blighted. It is a mere gratuity on the part of the member to be enjoyed at his death, provided he does not change his mind. It could not be hypothecated; it would not be assets in a bankrupt court; it has no value in the market; it could not be subjected to the payment of the debts of the beneficiary; indeed, it has no value whatever until the death of the member, for the reason, as we have said, it may be entirely annulled at any time during his life, by the member, with the consent of the society. We do not mean by this that the beneficiary has no interest. An' expectancy is an interest which can only be taken away in a lawful manner. A beneficiary under a will has an interest which continues until it is revoked in a manner provided by law. Such, we understand, to be the holding in Charch v. Charch, 57 Ohio St., 561. In that ease the court held:

“Where a member of a beneficial association organized under Section 3630, Revised Statutes, has caused the beneficial certificate issued by the association upon his life to be made payable to his wife, such member can not change the beneficiary except in the mode pointed out by the by-laws of the association. And where such by-laws provide that a change of beneficiary can be made only by surrender and issue of a new certificate, such change can not be made (the wife being in life) by will.”

Spear, J., in the opinion on page 578, says:

“By the undisputed facts it is established that the certificates in question were issued to the wife and so remained. Under the law, her interest in them, while not a vested one during the husband’s life, was such as he could not change, by testamentary disposition. When these laws provide, as those of these two orders do, a method by which the beneficiary may be changed, that method must be pursued, and where no change is thus made, the company’s promise to pay runs only to the person named in the certificate.”

This is but the statement of a familiar legal principle, that where a power is granted, that power can only, be exercised in the manner provided for in the instrument creating the power and can not be exercised in any other manner. There are a few cases that hold to a different rule and decide that the member may change the beneficiary at his will and in any manner, irrespective of the laws of the association. That is the holding of the cases in Texas and of the cases that follow the Texas rule, but they are few in number and not founded on reason. Such a rule would be almost subversive of beneficial insurance. The society would never know until the death of the member, who were its beneficiaries, if the member could change the beneficiary without the concurrent act of the society.

This provision, however, is for the benefit of the society and not of the beneficiary, and the manner of its enforcement is for it alone to determine. The beneficiary is in no manner a party to the contract; the agreement respecting the manner of change is between the society and the member. All the interest or right the beneficiary has is that the change shall be made according to the laws of the society, to the satisfaction of the society and member, and not contrary to the law of the land, and the organic law of the society. The insured could surrender the benefit certificate at any time.

How much of the rule shall be insisted upon and how much waived is a matter alone for the determination of the society. No notice whatever is required to the beneficiary of the intended change; he or she has no right to be heard or offer any objection. In this ease, Section 174 of the laws of the supreme tent shows that conclusively. The whole theory of the system of insurance by beneficial societies establishes this proposition; it is the poor man’s system by which he provides a gift for the benefit of those depending upon him to go to them at his or her death. This is not only in accordance with principle, but is supported by an almost unbroken line of authorities. Bacon Benefit Societies, Section 308; Niblaek Benefit Societies, Sections 218 to 223, inclusive, and authorities therein referred to.

I will refer to but a few. In Section 308, at the outset, Mr. Bacon says:

“Although the rule is settled that change of beneficiary must be made in the manner prescribed by the laws of the society with some exceptions, it is also now equally well settled that the society may waive compliance with the required formalities.”

In Manning v. Ancient Order of United Workmen, 5 S. W. Rep., 385, 386 (86 Ky., 136), the laws of the order provided that a member might at any time change the beneficiary by revoking the first designation and designating a new beneficiary in a form given on the back of the certificate, having the same attested by the recorder of the subordinate lodge with its seal thereto attached, and paying a fee of fifty cents for a new certificate, which was thereupon to be issued by the supreme lodge upon receipt from the local lodge of this old certificate and attested revocation, and the fee. In this case the member had left the certificate in charge of the local lodge. Subsequently he married and wrote the lodge, enclosing his dues and requesting the officers to send him the certificate made out to his wife. No fee was sent, and the officer of the lodge wrote to him for it. Nothing was done until after the death of the member, when the recorder of the lodge certified the letter to the supreme lodge, which issued the new certificate as requested and afterwards paid it. The suit was by the first beneficiary; judgment was given by the lower court for the defendant, and, in affirming this, the court of appeals said:

‘ ‘ The appellant had but a contingent right to the benefit; not a vested and absolute one. It was subject to be defeated at the will of the assured. The law of ,the order, as above cited, provides how this shall be done. The regulation is a reasonable one; bpt the question arises whether it shall govern as between the claimants to the benefit, if the order has seen fit to waive it. ¥e think not. Its object, beyond doubt, was to prevent the appellee from becoming involved in litigation with outside claimants. * * * The direction by the insured to change the benefit was, in the case now under consideration, given through the proper channel. The subordinate lodge referred it to the proper authority, and it saw fit to waive the regulations intended for its benefit and comply with the direction, although made in an informal manner and without the payment of the fee. The intention of the assured was to change the benefit. He so directed in writing; and now because he did not do so in the formal manner prescribed by the law for the benefit of the order, it is asked by a third party, whose interest in the insurance was liable to end at any time at the will of the assured, that his intention shall be defeated, although the party for whose benefit the form was prescribed has seen proper to- waive it. Such a rule would sacrific substantial justice to mere form; it would tend to defeat the benevolent aim and purpose of the organization and the desire and intention of the insured. Members of the order may be remote from their lodge; they may not have their certificates with them, and therefore be unable to make the indorsement thereon as directed, or to have it attested by the recorder of their lodge or its seal attached thereto. If the appellee chooses to waive these formalities it does not lie in the mouth of a third party to complain. The order is entitled to know who is entitled to the benefit fund; and the formal mode of changing its directions is for its benefit; while upon the other hand, the right of the beneficiary rests in the mere will of the assured.” See to the same effect, Titsworth v. Titsworth, 20 Pac. Rep., 213 (40 Kan., 571); Marsh v. Legion of Honor, 21 N. E. Rep., 1070 (149 Mass., 512); Martin v. Stubbings, 18 N. E. Rep., 657 (126 Ill., 387); Knights of Honor v. Watson, 15 Atl. Rep., 125 (64 N. H., 517); Beatty’s Appeal, Supreme Court of Pennsylvania, 15 Atl. Rep., 861 (122 Pa, St., 428).

Niblack on Benefit Societies and Accident Insurance, in Section 219, after referring to the fact that where' the mode of changing the beneficiary is specified in the contract it must be substantially followed, says:

‘ ‘ It seems clear, however, that this rule should be held to apply only to those cases in which the original contract is in existence, and where an attempt was made by the member to change the beneficiary of that contract. Where the original contract has been surrendered by the member and abandoned by both parties to it, the member and the society, it is difficult to see what rights remain to the beneficiary under it. The member and the society have a right to change the terms of the contract by passing new by-laws or otherwise, without the consent of the beneficiary, and it is certainly competent for them to agree to abandon the contract and substitute a new one on substantially the same terms. They are the contracting parties, and the beneficiary has no vested interest until the moment of the death of the member during the continuance of the contract. Wliere the contract in which he had an expectant interest has been abandoned,, and a new one has been taken out in its stead, payable to another, he has no legal ground of complaint. There is no longer a contract in which he is even contingently interested. In most of the cases where the original certificate had been surrendered, and a new one issued, payable to another person, the court considered the question raised by the first beneficiary, whether the change of beneficiaries had been made substantially according to the terms provided in the original contract. It would seem, however, that the first beneficiary, having had no vested interest in the original contract, had no legal right to urge that question; and it would also seem in those eases that the real question for the court to decide was whether there had been an abandonment of the original contract, and not whether there had been an abandonment of one contract and the substitution of another in the manner provided in the contract for the change of beneficiaries. The member and the society are the parties to a contract of mutual benefit insurance, and they may during the life of the member agree upon a change of beneficiaries in any manner which is satisfactory to both parties. When they have agreed upon a new beneficiary, a new contract is in force, and, to the extent of the modification made, the old contract is abandoned and superseded.
“When a society has accepted the surrender of a certificate from the member and issued a new one payable to a new beneficiary, or when a society has actually changed the beneficiary at the request of a member, all questions as to whether the manner and mode of-changing beneficiaries provided in the contract have been followed are concluded and absolutely disposed of. But where the society and the member did not, during the life of the member, agree upon a change of beneficiaries, where the original contract is in existence, and a right under it has accrued to some one, the original beneficiary will be heard to insist that he is entitled to the proceeds of it because the power of appointment of another person in his stead was not made by the member, one of the parties to it, according to its provisions. To this extent and no further does the rule apply that when the mode of changing the beneficiary is specified in the contract, it must be substantially followed. ’ ’

Mr. Niblack sustains his text by numerous authorities, and in note 2 says:

‘ ‘.In most of these cases it was held that there had been a substantial compliance with the terms of the contract relative to changing beneficiaries, but the logic of the cases sustains the doctrine as laid down in the text. In Coleman v. Supreme Lodge, 18 Mo. App., 189, it was held that the beneficiary named in the old certificate was not deprived of her rights, and that the society was not made liable by the issue of a new certificate in place of the old one, when the change of beneficiaries had not been made according to the prescribed manner. But this decision is against the fundamental principle of mutual benefit insurance, that the contract is between the member and the society, and that the beneficiary has no vested interest in the contract during the life of the member. This ease, though an early one, has never been followed.”

We will refer to but two other, authorities on this question.

In the case of Supreme Conclave Royal Adelphia v. Capella, 41 Fed. Rep. 1 (U. S. Circuit Court, E. D. Michigan), Hon. Henry B. Brown, now one of the judges of the Supreme Court of t'he United States and of eminent ability, in an exhaustive review of the cases, in the second paragraph of the syllabus lays down the following rule:

“The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions. (1) If the society has waived a strict compliance with its own rules, and in pursuance of a request of the insured to change his beneficiary, has issued a new certificate, the original beneficiary will not be heard to complain that the course indicated by the regulations was not pursued. (2) If it be beyond the power of the insured to comply literally with the regulations, a court of equity will treat the change as having been legally made. (3) If the insured has pursued the course pointed out by the laws of the association, and has done all in his power to change the beneficiary, but before the new certificate is actually issued he dies, a court of equity will treat such certificate as having been issued.”

In the opinion upon the first exception he says, p. 4:

“If the society has waived a strict compliance with its own . rules, and, in pursuance of a request of the insured to change his beneficiary has issued a new certificate to him, the original beneficiary will not be heard to complain that the course indicated by the regulations was not pursued. This naturally follows from the fact that, having no vested interest in the certificate during the lifetime of the assured, he has no right to require that the rules of the association, which are framed alone for its own protection and guidance, are not complied with. ’ ’

Mr. Bacon, in speaking of this decision of Judge Henry B. Brown in Section 310 of his work, says:

“This statement of the principles involved will probably 'always be followed. ’ ’

In the case of Anthony v. Benefit Association, supra, it is said, p. 578:

“The remaining question relates to the manner in which the assignment was assented to. The fifth condition requiring an alteration of a contract to be in writing and signed by the treasurer, and the rule of the association requiring both the member insured and the present beneficiary to sign the form of assignment, we regard as merely regulations framed for the protection of the association, which it may dispense with if it sees fit (see Supreme Conclave v. Capella, 41 Fed. Rep., 1, 4, and cases cited). If the original beneficiary had not a vested interest in the certificate, the member could assign it without their assent. The assent of the association was sufficiently manifested by the signing of the treasurer’s name by the clerk who acted in so doing under the general authority of the treasurer. ’ ’

Does the decision of Charch v. Charch, supra, in any Manner conflict with this line of authorities? We think not. In that ease the insured attempted to change the beneficiary by will, when the laws of the Legion of Honor provided as to the manner, and the only manner in which the change could be made, which did not include by will, and the court held that the change could not be made by will, but must be made in accordance with the by-laws of the society. The society did not act at all. The insured undertook to act entirely independent of the society, and make the change in direct opposition to the laws of the society.

No question of waiver by the society was involved. Furthermore, the will did not speak until the death of the member. The legatee had no vested right until his death, and at his death the beneficiary, his wife, under the certificate, had a vested right which could not be divested without her consent. The case is in no respect analogous to the ease under consideration and should have no effect upon it.

Did the supreme tent waive the literal performance of the requirements of Section 174? As we have,stated before, it received the written request will full knowledge of what had been done. It knew no affidavit had been made, as required. It knew the fifty cents had not been sent with the written request — if it was not sent: With this full knowledge it canceled the old certificate and issued the new one, changing the beneficiary. All this was done by the very highest officers of the society — the supreme commander, and the supreme keeper of records — who had, under the laws of the society entire authority and control over the change of beneficiaries and the society is still satisfied with what it did.

A pertinent inquiry here is, was not the change of beneficiaries made in accordance with the laws of the supreme tent? It could not be claimed that anything more was required than that the rules as laid down in Section 174 should be substantially followed. Niblaek on Benefit Societies, Section 218.

All the irregularity that is claimed is that the statement of the assured was not verified and the fifty cent fee was not sent to the supreme record keeper. Everything else was perfectly regular to the letter of the,law. The statements in the written request for change of beneficiaries were full and complete. There was nothing in it that was not absolutely true and is so conceded, but the statement was not sworn to'. What was there substantial in that omission? No one was misled; no one was injured; and so as to the failure to remit the fifty cents — if it was not remitted. If the supreme tent saw fit to charge the assured with it, or even waive it, certainly it was a trifling matter. If the will, intention and expectation of the insured are to be baffled and frittered away upon such a flimsy pretext, then truly this most popular form of insurance that goes into the homes of the masses would indeed be a snare and a delusion. Mr. Niblaek in Section 218, supra, says:

“This rule should not be applied with too much particularity and exactness in matters of detail but should be substantially followed. ’ ’

But it is claimed that the supreme officers of the tent had no authority to issue the new certificate, and that the new certificate is, for that reason, invalid.

It is said that this is a mutual insurance society; that each member is a stockholder and presumed to know the laws of the society, therefore, that the supreme officers had no authority whatever to change the beneficiaries by issuing a new certificate until the rules had been literally complied with; that each member has a right to demand this strictness, and the society or original beneficiary is not estopped by their, acts. Such is-not the law. In the first place, as we have seen, the law governing beneficial societies in changing beneficiaries is entirely different from the law controlling ordinary mutual insurance companies. They are not organized for profit at all, but are benevolent societies.

Every case heretofore referred to are eases in which the officers acted in waiving the provisions of the rules of the society in making transfers of beneficiaries and in cancelling old and issuing new certificates without strict performance of the rules of the society respecting transfers of beneficiaries, and without any special authority delegated for the purpose. Indeed, such is not the law governing life insurance generally. Nearly all life insurance companies are mutual companies. The policy holder has an'interest in the funds of the companies for . the payment of dividends. Frequently he is a stockholder. He gives premium notes and is liable to assessment upon the same, and yet it has always been held that the company is estopped from denying the authority of its general agents for acts done in the line of their agency.- No authorities are needed for the support of such a familiar rule of law.

These supreme officers received the written request and statement of the insured with full knowledge of all that had been done and all that was left undone. They deliberately canceled the old certificate and issued the new with all the formalities of the laws of the supreme tent.

The assured received the new certificate and acted upon it for twenty months, until his death. He paid his death assessment regularly every month. He died in full belief that his father was his beneficiary. Can it now be said the certificate was invalid by reason of the want of authority on the part of the supreme officers? We think not.

In the case of Ball v. Mutual Aid Association, 9 Atl. Rep., 103 (64 N. H., 291), the insured represented to the society in his application for a benefit certificate that he did not have catarrh and never had it, yet the medical examiner’s certificate showed he did have catarrh. Suit was brought upon the certificate by the beneficiary after the death of the insured. The company defended upon the ground of the misstatement in the application, but the Supreme Court of New Hampshire held the society was bound, its supreme officers having knowledge that the insured did have catarrh when he made his application and that, having accepted the monthly assessments from the insured, it was estopped from making the defense. To the same effect see Bacon on Benefit Societies, Sections 95 and 225.

But one other question remains for consideration. In the discussion of the case we have treated it as if the fifty cents required to be deposited with the record keeper, and by him transmittéd to the supreme record keeper, had not been so deposited and transmitted. The findings of fact by the court does not show such to be the fact; neither do the pleadings admit it. It is claimed by the plaintiff in error that every fact must be distinctly found by the court necessary to sustain the judgment of the court, and that every fact not so' affirmatively specially found is presumed not to exist. In other words, that the fifty cents fee is presumed not to have been paid if the findings of fact do not distinctly show it. We can not subscribe to this being the law. In this case the second certificate was issued by the supreme tent, and the presumption would be that everything was done required to be done under the laws of the supreme tent, if the findings of fact do not show to the contrary. The material fact to be found was that the second certificate changing the beneficiary was issued, and every intendment is in favor of its regularity.

In the ease of Carpenter v. Warner, 38 Ohio St., 416, the court held:

“ Where a court is requested under the statute to find and state the facts and law separately, and no objection is made at 'the time to the sufficiency of the facts found, a party can not avail himself of a defect in the findings in a court of error, but must submit to such judgment as the facts found require. ’ ’ '

Jones & Anderson, for plaintiff in error.

Jared Huxley, R. B. Murray and D. D. Autkin, for defendants in error.

If the facts as found by the court were not sufficiently definite, the defendant in error should have had the defect rectified in the court below. In the case of Jack v. Hudnall, 25 Ohio St., 255, the. court held:

“"Where the finding of facts by the court fairly admits of a construction which will support the judgment, that construction will be adopted rather than a different one which would render the judgment erroneous. ’ ’

In Peter v. Manufacturing Co., 56 Ohio St., 181, 186, 207, it is said:

“In reviewing a judgment based upon a finding of fact, a reviewing court should steadily lean towards that construction of the finding which would support the judgment; but where, after applying this principle to its fullest extent nevertheless, the reviewing court finds itself in great doubt concerning the grounds upon which the judgment was founded, it, in the exercise of a sound discretion, should require the court rendering the judgment to find the facts more specifically.”

It is true that if the judgment can not be sustained upon the facts as found by the court it must be reversed, or if any material fact is not found by the court which is necessary to support the judgment it must be reversed for the reason that it will be presumed that all facts were found that the evidence justified. Springer v. Avondale, 35 Ohio St., 620-623.

That is not this case, for the reason that a fair construction of the fact found by the court, to-wit, the issuing of a certificate in favor of defendant in error, James M. Earley, raises the presumption, as we have said, that the fee of fifty cents was deposited and remitted.

Judgment of common pleas court affirmed.


text:
    CONSTRUCTION OF WILL.
    [Circuit Court of Cuyahoga County.]
    James Silk, Administrator, v. John S. Merry et al.
    Decided, November 18, 1901.

      Wills — Bequests—Fee Simple and Life Estates — Significance of the Connectives "And” and "And Also” — Presumption as to Intention of Testator — General Legacies to he Paid Out of Personal Property —Consumption of Personal Property — Section 5970,Providing That an Estate Shall Pass in Fee, Unless.

      1. A bequest of specific real estate, out of which no debt or legacy shall be paid, “and the rest and residue of my real property to have and hold during the term of his natural life,” is a bequest of a fee simple estate in- the property first mentioned, and of a life estate in the remainder.
    2. In determining the extent of the estate devised; the word “and” will not be regarded as equivalent to “and also”; and a presumption as to the intention of the testator will be considered.
    3. A bequest of “so much of my personal property as he may desire to use absolutely,” conveys the right to consume as well as to use.
    4. Unless otherwise directed by the will, general legacies are to be paid out of the personal property, before resort is had to the real estate.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
   This cause comes into this court by appeal from an order of the court of common pleas.

The petition was filed under favor of Section 6202, Revised Statutes, and was apparently tried in the court of common pleas without any question being raised, either by the court or counsel, as to the jurisdiction of the court to determine the questions sought to be determined in the action, and except as suggested by the court, no question has been made in this court as to such jurisdiction.

As all the parties interested in.the matter are in court and no question is made as to the jurisdiction, we proceed to dispose of the case upon the assumption that we have such jurisdiction, though the question is by no means free from doubt.

Sarah Silk, who was a resident of this county, died testate on January 6, 1899. Her will, which consisted of an original will and codicil, was duly admitted to probate, and James Silk, who is the surviving husband of the testatrix, was duly appointed and qualified as administrator with the will annexed of the estate of the decedent, and files his petition in that capacity. A copy of the will, including the codicil, is annexed to the petition, and the prayer is that the court determine the true intent and meaning of such will and the proper construction thereof.

The date of the original will is uncertain; the language of the will as to the Rate, is, “In witness whereof I hereunto set my hand and seal this first day of July, 1893, A. D. 1892.” And such date is left uncertain by the codicil. The codicil, however, is dated April 27, 1898. It is immaterial, however, whether the original will was executed in 1892 or 1893.

The will and codicil read as follows:

“I, Sarah Silk, of the village of West Cleveland, Cuyahoga county, state of Ohio, being of sound mind and memory, do make and publish this my last will and testament hereby revoking all other wills by me heretofore made.
“Item 1. I direct all my just and lawful debts and funeral and testamentary expenses to be paid out of my estate.
“Item 2. I give and devise to my beloved husband James Silk my real property fronting on Detroit street in the village aforesaid out of which I direct that no debt, legacy or other charge herein provided for shall be paid or taken and the rest and residue of my real property to have and to hold during the term Of his natural life.
“Item 3. I give and bequeath to John S. Merry, of 67 Hack-man street, Cleveland, Ohio, son of my deceased sister Eliza, two thousand dollars, to be paid out of the residue of my estate.
“Item 4. I give, bequeath and devise the rest and residue of my estate to the heirs of my deceased husband, William Sheppard, the children of such of his heirs as may die prior to my decease to take their parents’ share.
“Item 5. If under any circumstances the property conveyed to my husband, James Silk, aforesaid, by his mother, Maria Silk, by deed dated April 1, 1879, and recorded Vol. 300, page 268 of the record of deeds of said Cuyahoga county, should become my property by descent, then and in that case I give and devise the same to the heirs of said Maria Silk.
“In witness whereof I hereunto set my hand and seal this first day of July, 1893, A. D. 1892.
[seal.] “Sarah Silk.
“Subscribed by testatrix in our presence who acknowledged to us the foregoing instrument to be her last will and testament and by us subscribed as witnesses in her presence at her request and in the presence of each other the day and date last above written.
“10 Johnson street, West Cleveland,
“Mary A. Willows,
‘1 Julia Wilks,
“22 Courtland street, Cleveland, Ohio.
“Whereas, I, Sarah Silk, have made my foregoing will dated the first day of July, 1893, A. D. 1892, I make this my codicil to the same.
“Item first. I give and bequeath to my beloved husband so much of my personal property as he may desire to use absolutely in addition to the provision made for him in item second of my said will.
“Item second. I reduce the amount of the legacy given in item third of my said will to John S. Merry from two thousand to one thousand dollars.
“Item third. I give and devise.to the West Madison Avenue Church of Christ in the city of Cleveland, Cuyahoga county, Ohio, sub-lot No. 13 in my subdivision on Sheppard (Shepherd) street now in said city.
‘ ‘ In witness whereof I hereunto subscribe my name this twenty-seventh day of April, A. D. 1898.
“Sarah Silk.
“Subscribed by testatrix in our presence, who acknowledged to us the foregoing instrument to be her codicil to her last will and testament, and by us subscribed as witnesses in her presence at her request, and in the presence of each other, the day and date last above written.
‘ ‘ Hugh Thow, “Edward Merry,
‘ ‘ Cleveland, Ohio. ’

The facts are, that the estate left by the testatrix consisted of both real and personal property; that there remains of the personal property, after the payment of all debts and expenses of administration, something more than two thousand dollars in money; that the real estate consists of the property spoken of in the second item of the will as fronting on Detroit street, in the village of West Cleveland, and several vacant lots in the same village. This village has now been annexed to the city of Cleveland. The Detroit street property consists of a modest dwelling-house and a lot, the net income of which in its present condition is practically nothing; that is, the taxes, assessments, repairs and insurance would very nearly, if not quite, equal all the income which could be obtained from it in its present condition, and this is substantially true as to the balance of the real estate.

At the time of the execution of the original will, whether in 1892 or 1893, the health of James Silk, the husband of the testatrix, was good; he was then about sixty-two or sixty-three years _ of age, and was able to earn a comfortable support for himself. Before the execution of the codicil, Mr. Silk had met with an accident which has ever since rendered him unable to do any laborious work and practically unable to earn anything toward his support. Aside from the property bequeathed to him by the testatrix, he has very little, if any, means.

All the property of which the testatrix died seized, came to her under the will of a former husband, William Shepherd.

The items which the court is especially asked to construe, are first, the second iteimof the original will, which reads:

“Item 2. I give and devise to my beloved husband James Silk my real property fronting on Detroit street in the village aforesaid out of which I direct that no debt legacy or other charge herein provided for shall be paid or taken and the rest and residue of my real property to have and to hold during the term of his natural life. ”

The copy of the will attached to the petition is without any mark of punctuation after the period following the figure 2 until the end of the item, where there is a period. It is said that the original will is in the same condition, and it is urged on the part of the plaintiff that by this item the surviving husband takes a fee simple title to the Detroit street property and a life estate in the balance; while on the part of the defendants it is urged that the qualifying words “to have and to hold during the term of his natural life,” apply as well to the Detroit street property as to the balance of the real estate.

Section 5970, Revised Statutes, reads:

“Every devise of lands, tenements, or hereditaments, in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it. shall clearly appear by the will that the devisor intended to convey a less estate.”

We are of opinion and so hold, that it does not clearly appear by this item of the will that the testatrix intended to convey to the devisee less than the fee-simple.

The words immediately following the devise of the Detroit street property, to-wit, “out of which I direct that no debt legacy or other charge herein provided for shall be paid or taken,” indicate clearly a distinction to be made between the devise of the Detroit street property and the balance of the real estate. Except for such, there seems to be no reason why the Detroit street property should have been specifically mentioned at all, because if he was to take a life estate and a life estate only, in the Detroit street property, as well as in the balance of the real estate, then a devise of “all my real estate to my beloved husband James Silk to have and to hold during the term of his natural life,” would have expressed exactly the meaning of the testatrix.

It is said, however, that these words, above quoted, following the devise of the Detroit street property, indicate exactly the distinction that was to be made between the two; but without these words the life estate could not have been subjected to the payment of any of the debts or legacies until the personal property had all been exhausted and th.e remainder in the real estate after the determination of the life estate had also been exhausted.

It will be observed that the language is stronger than simply that no debts or legacies are to be paid, because after the word “paid” follow the words “or taken?” It will further be observed that the two clauses of Item 2, to-wit, the clause by which the Detroit street property is devised, and the clause by which the balance of the real estate is devised, are connected by the word “and” alone.

In Noble v. Ayers, 61 Ohio St., 491, it is held that where certain described real estate is devised to one, followed by the words “and also,” another described parcel of real estate to the same devisee and that followed by the words “for and during her natural lifetime,” created an estate in the devisee for life only in each parcel so devised. An examination of the opinion, however, shows that stress is laid upon the use of the words “and also,” saying that these words are equivalent to “in like manner. ’ ’

To the same effect is Morgan v. Morgan, 41 N. J. Eq., 235, and numerous other authorities which are found in 2 Am. & Eng. Enc. Law (2d Ed.), 177.

We are cited to one authority, and one only — nor have we found any other after a somewhat diligent search — where in a will the word “and” is construed as being equivalent to the words “and also.” This is Spirt v. Bence, 4 Croke, 368. The case is an old one, adjudged in the reign of Charles I, and, so far as we have been able to ascertain has never been followed on this point.

Our construction is strengthened by the fact that it is to be presumed that this testatrix intended to give to her husband something which should be of substantial value to him, which the devise of the Detroit street property for life only would not have been, or, if it would have been of any value, it would have been very little. The nature of the property is such that the natural thing to do with it is something other than one would do who has but a life estate in it.

The other items which need to be considered are the third item of the original will, and the first and second items of the codicil.

By the first item of the original will a bequest is made to John S. Merry of two thousand dollars.

The first item of the codicil reads:

“I give and bequeath to my beloved husband so much of my personal property as he may desire to use absolutely in addition to the provision made for him in item 2d of my said will.”

The second item of the codicil reads:

“I reduce the amount of the legacy given in item 3rd of my said will to John S. Merry from two thousand to one thousand dollars.”

This second item of the codicil has the effect of making the bequest to John S. Merry the same as though the third item' of the original will gave to him one thousand dollars, and the will is to be taken as a whole as though the third item so read. This being true, the rights of John S. Merry are to be treated as though the sum to which he is entitled were fixed in the third item of the original will at one thousand dollars. It follows that this sum of one thousand dollars is to be paid as any other bequest would be paid, which is, out of the personal property.

All general legacies are to be satisfied out of personal property before a resort can be had to real estate, unless otherwise directed by the will.

It will not be contended that the surviving husband is entitled either to the entire personal property or to the use of the entire personal property, in preference to the payment of the debts, so that resort should be had to the real estate for the payment of such debts; and the rule as to legacies is the same as the rule as to the payment of debts and expenses; that is, that unless some other property is designated as that out of which debts and legacies are to be paid, they must be paid from the personal property. See Raff’s Guide (6th Ed.), page 153.

Suppose this administrator were to file a petition either in the probate court or the court of common pleas for the sale of real estate to pay the legacy to Merry, and it should appear from such petition that there was abundance of personal prop-1 erty with which to pay such legacy, it could hardly be contended that the court would be authorized to order a sale of the real estate.

It will be the order of the court, therefore, that this legacy be paid by the administrator out of the money remaining in his hands.

We think it clear as to the first item of the codicil, that it was the intention of the testatrix that her surviving husband should have the use of all her personal property after the payment of the debts, costs and expenses and the legacy to John S. Merry during the period of his natural life, and that he should have the right, not only to the income of this personal property, but to consume of the principal so much as should be necessary for his reasonable and comfortable support, considering his circumstances and condition in life, and the order will be made accordingly.

Gus. Schmidt and J. S. Grannis, for plaintiff.

Johnson & Hackney, for defendants.


text:
    PARTIAL ASSIGNMENTS.
    [Circuit Court of Licking County.]
    James W. Owens, Trustee, et al v. Waldo Taylor, Assignee.

    Decided, October Term, 1899.

      Assignment for the Benefit of Creditors — Deed Covers Specific and Scheduled Property — Executed Prior to Amendment of Section 6343 — Chose in Action Not Included in the Deed — Subsequently Reduced to Judgment in Favor of the Assignor — Then Transferred to One Not a Creditor.

    1. An assignment for the benefit of creditors of specific real estate and scheduled securities, executed prior to the amendment of Section 6343, and without any intention to prefer one creditor over another, does not convey title to the assignee of property not included in the deed.
    2. A chose in action, which did not pass to the assignee, but subsequent to the assignment was reduced to judgment in favor of the assignor, is not affected by the assignment, and having been transferred by the assignor can not afterward be recovered by the assignee, though the transfer was to one not a creditor.
    Voorhees, J.; Adams, J., and Douglass, J., concur.

       Affirmed by the Supreme Court without report, April 16, 1901 (64 Ohio State, 577).

   The case is in this court on appeal, and is a controversy arising between Waldo Taylor, assignee of William Shields, and Margaret J. Shields and Lucius B. Wing.

The contention grows out of a deed of assignment made by-William Shields to Alonzo P. Taylor on November 23, 1878, and by Alonzo P. Taylor and William Shields to John H. and Benjamin Franklin, on December 4, 1878. In these deeds of assignment the property is described as all the lands and tenements, with their appurtenances, including all city and town lots, situated in the county of Licking; also, the real estate owned by Shields in the city of Columbus, Ohio, particularly described; also, 1,130 shares of the capital stock of the Newark Coal Company, which was hypothecated to different parties as collateral security; also, 200 shares of the capital stock of the Licking Iron Company, which was hypothecated as collateral security to Nicholas Duper & Company, of Boston, excepting and reserving from the deed the homestead rights.

Alonzo P. Taylor, on December 3, 1878, resigned said trust, and the probate court appointed John H. Franklin and Benjamin Franklin trustees instead of said Taylor; and Taylor and Shields, by deed of that date, granted, sold and conveyed to the Franklins all the lands, tenements, and all the right and title in said Taylor vested by virtue of said deed, as expressed and described therein, reference being had to said deed for a more particular description of the property.

So it will be observed that the Franklins, as trustees, got no more property, nor any different property, than what was originally transferred to Alonzo P. Taylor, in trust for Shields.

The instrument of writing, under which Margaret J. Shields and Lucius B. Wing claim the fund in controversy, was executed March 9, 1890. After the assignment Charles W. Snider took from William Shields an assignment of the claim involved in this action.

The date of the assignment was sometime after March 22, 1886. This assignment was for the benefit of Snider and was to secure him for $427.64, with eight per cent, interest from March 9, 1890. On that day he agreed to pay over to Shields all the money other than the $427.64 and interest realized from the judgment in favor of Gibson Atherton, trustee, against the Newark, Somerset & Straitsville Railroad Company, in which Shields was entitled to a distributive share. On the same day William Shields assigned this money to Charles R. Shields, who, on July 25, 1893, assigned it, one-half to Margaret J. Shields .and one-half to Lucius B. Wing.

The question we are called upon to determine in this ease is: Does the deed of assignment originally to Alonzo P. Taylor, carry with it this chose in action which is now in controversy, and claimed by the defendant, Waldo Taylor, assignee, as being assets which were assigned originally to the assignee Alonzo P. Taylor, who was succeeded by the Franklins, and, by virtue of that assignment, it passed in trust from William Shields, and therefore William Shields’ later assignment could have no effect upon the trust fund?

That is the only controversy now before us for determination; and it is the single question, whether or not the deed of assignment in this case is broad enough to carry and cover all the property then owned by Shields.

Attention has been directed to Section 6343, Revised Statutes, as amended April 26,1898 (93 O. L. 290), and it is contended by counsel for defendant that under the section as amended, the property in controversy is to be controlled and the rights of the parties thereto are to be determined by the statute as amended.

Section 6343, Revised Statutes, before it was amended was as follows (56 O. L., 231, Section 16).

“All assignments in trust to a trustee or trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the equal, benefit of all creditors in proportion to the amount of their respective claims; and the trusts arising under the same shall be administered in conformity with the provisions of this act. ’ ’

It will be observed that an assignment to come within the provisions of the statute must be made with intent to prefer one or more creditors of the assignor. This was not the expressed intention, at least, of this deed of assignment made by William Shields to Alonzo P. Taylor. There was no purpose, so far as the deed of assignment was concerned, indicating that the intention was to prefer any special or particular creditor. It was for the creditors generally, so far as the property therein assigned was concerned.

The amendment is somewhat broader. As amended (93 O. L., 290), it reads as follows:

“Every sale, conveyance, transfer, mortgage or assignment, whether made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them, and every act or device done or resorted to by him or them, in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, conveyance, transfer, mortgage, or assignment made, or judgment suffered by a debtor or debtors, or procured by him or them to be made, in any manner, with intent to hinder, delay or defraud creditors, shall be declared void as to creditors of such debtor or debtors, at the suit of any creditor or creditors, as hereinafter provided, and shall operate as an assignment and transfer of all property and effects of such debtor or debtors, and shall inure to the equal benefit of all creditors of such debtor or debtors in proportion to the amount of their respective demands,” etc.

The section as amended is broader and would seem to cover all the property of the debtor. But can it be made applicable to this case ? If the statute is broad enough to cover such a case as this, yet it could not affect rights of- these parties, because this amendment was passed long after the accruing of the rights of the parties in this action. It could not affect any vested rights of the parties, and the question must be determined as the law was under Section 6343, Revised Statutes, before this amendment; and it is very clear that it could not reach or control this case.

The question then is, whether, under the general law of assignments, regardless of the statute, this deed of assignment is broad enough to cover this property which is not specifically named in the deed of assignment.

This deed of assignment does not transfer to the assignee all of the property of the assignor. There is no such comprehensive language in the deed of trust, but it is limited to specific real estate named in the deed and also specific personal property designated in the same instrument. There are no terms of the deed of assignment broad enough to reach all of the property that Shields owned at that time. What is the effect of this? Can this deed be construed as including property not described in the deed when it has specifically named some of the property ?

In Burrill on Assignments, at page 142, the author says :

“It is a leading rule in the construction of assignments by debtors, that no more property will pass to the assignee than is embraced in the terms of the instrument; and, even where all the debtor’s property is assigned in terms, if there be subsequent words of description, or a reference to a schedule, as setting it forth particularly, the contents of such 'clause or schedule will operate to limit the general clause of the transfer, and nothing will pass that is not set forth or specified.” Burrill on Assignments (6th Ed.), Sec. 286, p. 386; also Section 100 on page 142, and note 4 and authorities there cited.

In this case there is a clear setting forth of the property specifically, which was intended to be assigned to Taylor. It designates the real estate, and describes it. It specifically names and schedulizes the personal property which was intended to be transferred.

Burrill on Assignments (6th Ed.), Sec. 119, at page 157, in note 2 says:

“If an assignment in trust does not, on its face, purport to be of all the assignor’s property, it will be treated as a partial assignment. ”

A partial assignment, of course, then would be of the particular property described in the instrument.

Burrill on Assignments (6th Ed.), See. 119, at p. 157, m. 3, says:

“An assignment which, on its face, purports to convey all the assignor’s property, when in fact he has other property not disclosed in the assignment, is void as against creditors; but if it does not so purport, it is valid, notwithstanding property may remain in the hands of the assignor unassigned. Pearce v. Jackson, 2 R. I., 35.”

This deed of assignment does not purport to convey and transfer all of the property from the assignor. In 1 Am. & Eng. Enc. Law (1st Ed.), 852, 853; also 3 Am. & Eng. Enc. Law (2d Ed.) 36, the author says:

“A general assignment of all the debtor’s property will pass to the assignee everything which is by its nature assignable, except property specially exempted by law, or excepted by the terms of the deed or the schedule annexed, where the law allowed an exception.

Kibler & Kibler, for Lucius B. Wing and Margaret J. Shields.

Waldo Taylor, for Catherine Snider, executrix; also as assignee of William Shields.

“Only such property will pass, however, as is embraced in the terms of the instrument, and the effects of an assignment purporting to be general will be modified by descriptive clauses, or a schedule, which operate to limit the property assigned to that described in them. ’ ’

We think this deed of assignment, designating as it does this specific property assigned to Taylor, did not cover this chose in action which was afterwards passed into a judgment in favor of the assignor; and, it being his property, it would be subject, of course, to the action of general creditors. But there are no general creditors contending for it, so far as the question is now presented for our consideration. It was, then, his property, unaffected by the deed of assignment. It was property that might be transferred or assigned; and, having been assigned by him to these claimants, we think they are entitled to that fund, so far as the assignee, Waldo Taylor, is concerned. He could get nothing by virtue of the deed of assignment, or by virtue of his office, excepting the property which was assigned originally to Alonzo P. Taylor, because Alonzo P. Taylor’s rights fixed those of the trustees, Franklin, and also fixed the rights of the assignee, Waldo Taylor, defendant herein.

That being so, the answer and cross-petition of Waldo Taylor, assignee, will be dismissed. There will be a decree in favor of Margaret J. Shields and Lucius B. Wing for the fund that is in the hands of Owens as trustee, awaiting the order of the court as to distribution, and this is the decree of this court.,