author: COOK, J. LAUBIE, J.,

text:
    BENEVOLENT SOCIETIES — BENEFICIARIES—DEPENDENTS.
    [Mahoning (7th) Circuit Court,
    March Term, 1902.]
    Burrows, Uaubie and Cook, JJ.
    Anna Earley v. James M. Earley and the Supreme Tent, K. O. T. M.
    1. Beneficiary in the Knights of Macabees.
    Under the law of the Supreme Tent of the Knights of the Macabees of the World a father is a proper beneficiary, although not dependent upon the insured.
    > 2. Same — How Change of Beneficiaries Made.
    While' a change of beneficiaries in a mutual benefit society must be made in accordance with the laws of the society, yet when the change is made substantially as provided by the laws of the society to its satisfaction, arid that of the insured, a new certificate being issued to the new beneficiary, and the old certificate cancelled, although not delivered to the society, the first beneficiary cannot object to the manner of change because the change is made without her knowledge and not in strict conformity to the law of the society providing for the change of beneficiaries. [Laubie, J., dissents.]
    Heard on Error.
    Jones & Anderson, for plaintiff in error,
    cited;
    Where one is made a legal beneficiary in a certificate, that certificate is valid and in full force until another legal beneficiary has been substituted. Supreme Council C. B. Legion v. McGinness, 59 Ohio St. 531 [53 N. E. Rep. 54].

      Punctuation may aid in arriving at the meaning of a statute, but does not control. Albright v. Payne, 43 Ohio St. 8,14 [1 N. E. Rep. 16].
    Upon the question of who are “ dependents.” Supreme Council C. B. Region v. McGinness, supra.

    Waiver. Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408]; Bacon on Beneficial Soc., Sec. 307; Holland v. Taylor, 12 N. E. Rep. 116, 119 [111 Ind. 121].
    Contract violated for false representations. Supreme Council C. B. Region v. McGinness, supra.

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

This action in the common pleas court was by the Supreme Tent of the Knights of the Macabees 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 Macabees 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 case the certificate is lost or in the possession of another who refuses to deliver the same to the member, in such case 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 Macabees 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 supreme 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 delivered 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 cancelled 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 the 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 Macabees 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 Macabees 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 case of Supreme Council Cath. Benevolent Legion v. McGinness 59 Ohio St. 581 [53 N. E. Rep. 54], 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 be so ; that while the word “ family,” in its general significance, would include a brother, yet as used in the laws of the Benevolent Region, 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 Sec. 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 Sec. 174 signifies a class, and that the father was a proper beneficiary.

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

The statement in the written request for change of beneficiary by Lewis S. Barley 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 Ms wife to surrender tMs certificate. Under these circumstances we fail to see that any fraud was practiced upon the supreme tent. He set forth his in written request that the certificate was in the pcssession 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 cancelled 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 Sec. 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 thinks 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 this 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 keeper, who correspondió 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 cancelled 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 respect 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, Secs. 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 cannot 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 aré insurance companies, and the certificates issued by them are polices 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; 53 Am. Rep. 514]; 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; 1 New Eng. Rep. 856], the Supreme Court of New Hampshire says, p. 628:
“ The power of appointment is the one thing in the contract which is given to the member, and over that power nd 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 onlthe performance of the conditions of membership, agreed to pay the benefit to any person whose name might appear by his entry on the record book or tRe 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 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 appointment of other beneficiaries.”

In the case of the Swift Railway Company, etc., 96 Ill. 309, the Supreme Court of Illinois says:

“ 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 otherwise, 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 Region 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 Eathrop by a number of .cases 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 Sec. 806, 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 hypothe-cated ; 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 [49 N. E. Rep. 408]. In that case the court held:

“ Where a member of a beneficial association organized under Sec. 3630, Rev. Stat., has caused the beneficial certificate issued by the association upon his life to be made payable to his wife, such member cannot 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 beneficiar}' can be made only by surrender and issue of a new certificate, such change cannot 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 the bylaws 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 legabprinciple, that where a power is granted, that power can only be exercised in the manner provided for in the instrument creating the power and cannot 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 thej'- 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 case Sec. 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, Sec 308; Niblack Benefit Societies, Secs. 218 to 223, inclusive, and authorities therein referred to.

I will refer to but a few. In Sec. 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; but the question arises whether it shall govern as between the claimants to the benefit, if the order has seen fit to waive it. We 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 sacrifice 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 hot 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; 4 L. R. A. 382]; Martin v. Stubbings, 18 N. E. Rep. 657 [126 Ill. 387; 9 Am. St. Rep. 620]; 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-Sec. 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. Where 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 considéred 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 cases that the real' question for the court to decide was whether there had been an abandonment of the original contract, and not whéther there had been an abandonment of one co.ntract and the substitution of another in the manner provided in the contract for the chánge of beneficiaries. ' Thé' 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 absolute^ 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 uith 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 Bodge, 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 case, 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 the 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 Sec. 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. Cappella, 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 case the insured attempted to change the beneficiary by will, when the laws of the Region 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 case under consideration and should have no effect upon it.

Did the supreme tent waive the literal performance of the requirements of Sec. 174? As we have stated before, it received the written request with 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 cancelled 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 Sec. 174 should be substantially followed. Niblack on Benefit Societies, Sec. 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 injuredand so as to the failure to remit the fifty cents — if it was not remitted.. If the 0 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 anda delusion. Mr.,Niblack in Sec.. 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 cases 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 assessments 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 cancelled 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, Secs. 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 transmitted 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 cannot subscribe to this being the law. In this case the second certificate was issued by the supreme tent, ánd 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 case 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 separatelj', and no objection is made at the time to the sufficiency of the facts found, a party cannot avail himself of a defect in the findings in a court of error, but must submit to such judgment as the facts found require.”

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 [18 Am. Rep. 298], 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 [46 N. E. Rep. 894], 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 cannot 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 facts 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.

LAUBIE, J.,

dissenting:

My principal objection is that the opinion of the majority of the court aims to establish the rule, that in cases of this character a beneficiary is not a party to the contract of insurance, and has no right to question or contest any change of beneficiary made by the insured which is satisfactory to the society or its officers. That the laws of the society prescribing the mode and manner of such change, are solely for the benefit of the society, and may be waived by its officers without question on the part of the prior beneficiary.

Cases affirming and denying this doctrine are numerous, but I believe the better opinion, founded upon the general principles and analogies of the law, is upon the negative side.

In this discussion it must be remembered that it is not the society that is here asserting and relying upon this claim to uphold the validity of the change in this case, nor is it here affirming the validity of the acts of its officers in regard thereto. It washes its hands of everything, and leaves the question to be fought out by the beneficiaries under their own rights. Under such circumstances, “ the party who would succeed as against the other must make a case that would entitle him to recover against the society in a suit on the contract.” Niblack on Ben. Societies, Secs. 222, 254.

The affirmative of this doctrine, as maintained in the majority opinion, as I view it, is opposed to general principles and analogous cases in at least four respects.

1. It is opposed to the doctrine governing the execution of powers.

2. It is opposed to the rule applied to such change in policies of all other life insurance companies.

3. It is opposed to the general rule which prohibits the waiver of the charter or by-laws of benevolent societies by the society or its officers.

4. It is opposed to the rule that a contract made for the benefit of a third person, for a valuable consideration, makes such person a party to the contract after assent thereto and acceptance by him, with the right to enforce a literal performance cf its terms and conditions.

As to the first. It is undoubted that the execution of a power, which is the substantial question involved here, must be strictly in accordance with the provisions authorizing it, when it involves the revocation of an appointment, or the vesting or divesting of certain specified rights or privileges. In many instances such rights are as clearly in expectancy only as those of a beneficiary can possibly be said to be. That these are strictly analogous cases is admitted, and no solid reason can be given why a different rule should be applied to the one case that is not applied to the others. Where an instrument provides for one method of execution, it necessarily excludes all other methods.

As to the second class. In ordinary insurance policies the right of the beneficiary in the fund is a vested right, and, consequently, a change of beneficiary cannot be made without the beneficiary’s consent. In benevolent societies certificates, which are admitted to- be policies of insurance, ordinarily there is a provision authorizing such change, and that is substantially the only difference between them and a mutual life insurance policy as to the beneficiary’s rights. In each case the benefit conferred (the right to the fund) is usually a mere gratuity on the part of the insured — a provision for the future support of a wife or other member of his family or dependent, — and no sufficient reason can be given why the beneficiary’s interest should be a vested one in the one case and not in the other, for a vested interest may be conditional — to be defeated on the happening of some future event — which is the case at bar.

Indeed, in the ordinary life policy, the right of the beneficiary to the fund is conditional also, being dependent upon the performance of a subsequent condition on the part of the insured, the regular payment of the premiums or assessments. The insured may of his own will, under the terms of the contract, divest the right of the beneficiary to the fund without notice to, consent of, or knowledge of such beneficiary, by with holding payment of the premiums or assessments.

If the fact be that the beneficiary’s interest is not a- vested' one because the insured may of his own will divest the right of the beneficiary to the fund by substituting another as beneficiary, why does the same result not follow when he may of his own will divest the beneficiary of such right by withholding payment of the assessments ? Is it because the insured has the right to do this that makes such interest a mere expectancy, or is it because of the way he may do it ?

As to the third class. Such a contract is not like that of an ordinary stock company; it is a contract between members of one family, and they are all obliged to know what the provisions of the by-laws are, and aie mutually bound to respect and obey them. The officers and managers, as is generally held, cannot waive them; they are obligatory upon all, and must be obeyed. They must either waive them as to all and abolish the law., or they cannot waive them as to any.

Why should a different rule prevail as to a change of beneficiary, when the change involves a matter of substance, and substantially is the substitution of one contract for another ?

As to the fourth class. From what I have said already, it is, I think, apparent that the beneficiary is as much a party to the contract made for his benefit in this class of insurance as in any other, but I shall discuss this question further when I come to treat of the law of Ohio as applicable to such contracts.

While the text books of Bacon and Niblack are largely relied upon to sustain the holding in this case, it will be noticed that each author upholds somewhat both sides of the question; mainly and more forcibly, however, the negative side, in consonance with general principles and analogous cases; as will be seen from the following extracts:

“ Benefit societies in law are mutual insurance companies.” Bacon, Sec. 146.
“ This doctrine (Mass.), that officers of a mutual company cannot waive the by-laws of the company, has been approved in other cases on the ground that if the officers have discretionary powers as to the terms of the contract, the principle of mutuality would be completely abrogated.” Bacon, Sec. 147.
“ It has been held that defects or irregularities in the form or manner of the designation may be waived by the society, but this is against the weight of authority which is in favor of the rule that the required formalities in the laws of the society relating to designation of beneficiary are part of the contract.” Bacon, Sec. 239, and in a note the author refers to Sec. 307, from which I quote. (The italics are mostly my own.)
“ Section 307. Change of beneficiary must be in way prescribed by the law of the society. Although the member of a benefit society is thus generally left free to revoke his designation of beneficiary and appoint a new one, he me't do sp in the wav pointed out by the laws .of the organization. It is but carrying out the rule laid down in regard to powers, that if a method of revocation of an appointment is created by the instrument conferring such power, this direction must be complied with. If the laws of the society prescribe certain formalities to be observed in the change of beneficiary, or if the assent of the society to the transfer is required, all of the requirements must be obeyed.
“ The Supreme Court of Indiana [Holland v. Taylor, 12 N. E. Rep. 116; 111 Ind. 127] says that the same contract that permits the change ‘ fixed the mode and manner in which the change might be made, and we think that, taking the by-laws and the certificate together, the mode and manner of changing the beneficiary was fixed as definitely, and was as binding upon the assured as was the right to make such change binding upon the association and the beneficiary. In other words, under the contract, the assured had a right to change the beneficiary, provided he made the change in the manner provided in the contract. So, the Supreme Court of Iowa says: ‘ The contract between the association and Robert Stephenson was that the former should pay the insurance to the persons named in the certificate of membership, unless he should change the name of the beneficiaries; and the manner in which this should be done formed a part of the contract of insurance. * * * * It was perfectly competent for the parties to contract as they did, and the mode of executing the reserved power provided in the contract cannot be regarded as an idle ceremony, because substantially a nezv contract was made upon its being complied with, and thereby all doubt upon the part of the association as to who was the beneficiary was removed. Because such inode was not adopted in this case, creates the doubt we are called upon to solve. We, therefore, think the mode agreed upon in the contract, whereby the name of the beneficiary should be changed, was made a matter of substance, and should be complied with.’ * ■* * The rule above laid down has been generally accepted. The mention of one method of change has been held to impliedly or expressly exclude all others on the ground that expressio unius est exclusio alle-rius.”

In Holland v. Taylor, supra, the latest Indiana case, there is this more expressive language, p. 119, which Bacon fails to quote :

“ In that contract Anna Eaura, the beneficiary, had such an interest as that she had, and has the right to insist that, in order to cut her out, the change of the beneficiary should be made in the manner provided in the contract.”

Section 808 of Bacon is devoted to the “ opposing view. ” He says;

“ The courts of Texas and Kentucky take a different view,” auc cites Spleen v. Chew, (Texas) and Manning v. A. O. of U. W., 86 Ky. and say : “ The reasons given and conclusions reached as to the law ” in those cases “ are in direct conflict with the weight of authority.”

A few other cases are cited, but he says of them, “ a careful examination shows that under the terms of the contract in such cases there was room for this construction, as where the charter gave the right to dispose of the fund by will.”

Niblack Ben. Soc., Sec. 97, says:

“ Mutual benefit societies and stock companies are essentially different in +heir plans of carrying on the business of life insurance. Societies have many by-laws which are a part ol the contract of insurance, and which are binding on all members, whether officers or not. They are conducted on principle of mutuality, and should give insurance to each member on the same terms, conditions and restrictions. It would be destructive of this equality in the contracts of insurance to give to an officer the power to waive the provisions of a by-law which relates to the substance of the contract. * * * An officer of a mutual benefit society has no authority, as a general rule, to waive a strict compliance, on the part of a member, with its by-laws. This rule, however, does not extend to those by-laws which relate to the clerical transaction of its business, or to the mode of establishing its liability (that is, after liability accrues). By-laws in regard to proof of death of a member, for instance, may be waived. But it is well settled that the officers of such a society have no authority to waive those of its by-laws which relate to the substance of the contract between it and a member, determine the relations of the members to each other, or in any manner fix the rights and liabilities of the parties.”

Again, in Niblack Ben. Soc., Sec. 218, is this :

“ When a mutual benefit society has, under the powers and within the limits of its charter, provided in its by-laws a particular method of changing a beneficiary, or has set forth in its certificate a way by which the change may be made, no change of beneficiary may be made in any other mode or manner. The reason for this rule is not difficult to discover. It is based upon the familiar maxim that the expression of one thing excludes other and different things. When a society frames a set of rules providing for the distribution of a fund, and for the rights of beneficiaries and members, it must be assumed that it excludes every other mode and manner. Any other conclusion would lead to the most interminable confusion in the law applicable to the distribution of the insurance money, and fritter away, m the expenses of uncertain litigation, funds created for the benefit of widows, orphans and heirs.
“ But there is still another reason. It cannot be said that a beneficiary named in a certain certificate has no rights therein because he has no vested rights. The beneficiary has a right to the proceeds, of the certificate of insurance, subject to the right of the member to change the beneficiary according to the terms of the by-laws and regulations of the society, which are a part of the contract of insurance, and the right of ■the beneficiary to have this contract carried out in the manner provided for is as binding upon the member as his right to change the beneficiary is binding upon the beneficiary and the society. * * *
“ It cannot truly be said that the interests of a beneficiary may be brought to an end at any time at the will of a member. * * * it requires some affirmative act on the part of the member to change the designation ; his will and intention will not work the change. All tendency to confusion and uncertainty is avoided by requiring this change to be made in conformity with the terms of the contract.
“As has been said, the power to appoint new beneficiaries is reserved to the member of a mutual benefit society, unless it is taken away by the express provision of the contract of insurance. Where no mode of executing this power is provided, it may be executed in any manner which the member may choose to adopt. But where the mode of executing the power is set forth in the contract, it is made a matter of substance, and by every analogy to the law of general or special powers, it should be complied with. The authorities on this point are conflicting, but this seems to be the better rule.”

Niblack then proceeds to give the numerous cases wherein the rule has been qualified and exceptions have been grafted on it, with the reasons therefor, and among them the case so largely relied upon and quoted from in the case at bar, of Supreme Conclave Royal Adelphia v. Capella, 41 Fed. Rep. 1, decided by Judge Brown, now of the Supreme Court of the United States. Niblack’s criticism of it, in Sec. 219, pp. 419, 420, n. 4, shows that the case is not entitled to the credit claimed for it upon this question. He states that the point involved in the case was one of estoppel — that the original beneficiary was held to be estopped by his own misconduct from alleging that the insured had not complied with the contract in making the change; that the second and third exceptions to the rule laid down by the learned judge, were not exceptions to the rule at all, but matters of equity jurisprudence, and that as to his first exception (the one involved in the case at bar) not over one or two of the eight cases cited in support of it by Judge Brown bore directly upon the point; that “Of the authorities cited in support of the exception, Martin v. Stubbings, 18 N. E. Rep. 657 [126 Ill. 387; 9 Am. St. Rep. 620] ; National Mut. Aid Soc. v. Lupold, 101 Pa. St. 111, and Brown v. Mansur, 64 N. H, 39, relate to the assignment of certificates which is entirely different from appointing a new beneficiary. See sections 166, 167, 169,173, and they are treated of in their proper place. In Byrne v. Casey, 8 S. W. Rep. 38 [70 Texas, 247], the right to make the change, not the manner in which it was made, was in question. In Knights of Honor v. Watson, 15 Atl. Rep. 125 [64 N. H. 517], the controversy was as to whether the new beneficiary was a proper one under the charter. Titsworth v. Titsworth, 20 Pac. Rep. 213 [40 Kan. 571], sustains the exception.”

Niblack thus refers to six of the eight cases; the seventh is Manning v. Ancient Order of United Workmen, 5 S. W. Rep. 385 [86 Ky. 136], quoted from at length in the majority opinion herein, which is contrary to almost every authority on the question. In that case the insured neither complied with the by-laws as to the manner of making the change, nor in paying the fee, and the officers would not issue the new certificates, and did not until after his death, and consent or waiver by the society was too late, according to the great weight of authority and the doctrine established in Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408].

The eighth case is Splawn v. Chew, 60 Tex. 532, where it was held that the change might be made by will, which is also contrary to the authorities generally as well as to Ohio authority.

As four of these eight cases are relied upon by the majority in their opinion herein in support of their adoption of this exception to the general rule, it is well to examine them a little more closely. As to Manning v. Ancient O. of U. W., supra, I have already commented upon it.

The Kansas case, Titsworth v. Titsworth, supra, was decided upon the strength of the Texas case, Splawn v. Chew, supra, instead of following the prior decision of its own court. In Olmstead v. Society, 14 Pac. Rep. 449, 451 [37 Kas. 93], substantially a contrary doctrine was held, and it was declared:

“We think the maxim, expressio unius est exclusio alterius, applies; ■ and, as the prescribed mode has not been followed, no change was actually made, and therefore the benefit must be paid according to the terms - of the contract.”

The Illinois case, Martin v. Stubbings, supra, was a case of assignment of a certificate to a creditor, as security for a loan of money, which presents an entirely different question than a change of beneficiary. The general doctrine is that in societies of this kind the member has no own-' ership or control over the fund itself, and he cannot assign it ór transfer it to a creditor in payment of his debts, nor can he make á creditor the" beneficiary who is not of the class named in the charter.' Where the right to assign exists, it must be because of some Special provision of the by-laws. ■ ■

In the Illinois case the facts were essentially different from this case, and peculiar. In that case the husband kept the certificate-himself, and the wife, the beneficiary, united with him in the assignment of it to the creditor; and the charter of the society provided that a member might change his beneficiary “ at his pleasure, without notice to or consent of the beneficiary, and all persons accepting any interest in this policy or company do so upon these express termsand the fund was to be paid, to “the widow, orphans, heirs or relatives by consanguinity or affinity devisees or legatees of a deceased member.”

If the creditor could be considered a devisee or legatee, no one probably would say he was not entitled to the fund under such circumstances. But at all events it was a case of estoppel.

All of the subsequent cases in that state simply follow this case of Martin v. Stubbings, supra.

In the New Hampshire case, Knights of Honor v. Watson, supra, every single requirement of the by-laws was strictly complied with, but the additional beneficiary was not of the class provided for in the charter ; but the court held that the original beneficiaries, although beneficiaries in the new certificate also, could not be heard to allege or take advantage of the fact that the added beneficiary was not of the class named in the charter, that it was none of their business, and that they were entitled to the amount given in the new certificate only; which is in conflict with the authorities generally, and with the holding in McGinness v. Benevolent Legion, 59 Ohio St. 531 [53 N. E. Rep. 54], on the same state of facts.

In Marsh v. Legion of Honor, 21 N. E. Rep. 1070 [149 Mass. 512; 4 L. R. A. 382], cited in the majority opinion, the charter provided that “ the fund should be paid to such member of his, the insured’s, family or dependents as he may direct, without restriction,” and the by-laws provided that he “ may surrender his certificate and have a new one issued to such of his family or dependents as he may direct.” He did surrender the certificate, and directed a new one to issue to the mother, but by the fraud and conspiracy of the wife (original beneficiary) and the secretary of the lodge, it was prevented and not done, and he soon thereafter died.

On equity principles the wife was estopped from claiming the fund, by reason of her fraud, and not because the case was an exception to the general rule, or that the by-law had been substantially complied with. Indeed, the law' of Massachusetts on the question presented in the case at bar;- as déclared. in Clark v. Royal Arcanum, 57 N. E. Rep. 787, 788 [176 Mass. 471], is apparently on the negative side of the question, viz.:

“Yet it is well settled law in this commonwealth that in such cases a benefit certificate cannot be transferred except in the manner pointed out by the by-laws of the society. Elsey v. Relief Association, 7 N. E. Rep. 844 [142 Mass. 224] ; Daniels v. Pratt, 10 N. E. Rep. 166 [148 Mass. 216] ; McCarthy v. Order of Protection, 26 N. E. Rep. 866 [153 Mass. 314; 11 L. R. A. 144]. Where, however, the society does not object, and the transfer is prevented by the fraud of the beneficiary named in the certificate already issued, equity may afford relief. Marsh v. Legion of Honor, 21 N. E. Rep. 1070 [149 Mass. 512; 4 L. R. A. 382].”

The other Massachusetts case referred to, Anthony v. Beneficiary Assn., 33 N. E. Rep. 577 [158 Mass. 322], was a case of assignment, and the court, in Clark v. Royal Arcanum, supra, did not refer to it in its citation of authorities on the question of change of beneficiary.

In another case cited, Beatty’s Appeal, 15 Atl. Rep. 861 [122 Pa. St. 428], a Pennsylvania case, the question involved was as to the right to make the change, and not as to non-compliance with the by-laws.

In a later case in that state, Masonic Mutual Association v. Jones, 26 Atl. Rep. 255 [154 Pa. St. 107, 108], which the court said, was a Cleveland, Ohio, association, it was declared:

“ As the association has prescribed the form for changing the beneficiaries, that form must be pursued, otherwise, no change can take •place.”

If the organic law, the charter, provides for the mode and manner of making such change, either expressly or by implication, the rule that the member cannot make it in any other manner, even with the assent of the society, is made still more imperative.

“ Where the charter of a society specifies the manner and mode of designating or changing the beneficiary, and the extent to which such changes may be made, these provisions must- be strictly complied with, on the familiar ground that a corporation is the creature of its charter, and it is not within the power of the corporation or its members, or both, to waive a strict compliance with all such provisions.” Niblack Ben. Soc. (2 ed.), Sec. 215, p. 413.

And this prohibition “ is as effective when it is implied from the terms of the charter as when it is contained in its express language.” Bacon Ben. Soc., Sec. 260.

The charter of this society, as found by the court below, contains the following provisions:

It is formed to create a fund for the relief of sick and distressed members, and to provide for the living and bury the dead. * * * To establish a benefit fund or funds, from which, on satisfactory _evidence of the death of a beneficiary member of the order who has complied with all its lawful requirements, a sum not exceeding $8,000 shall be paid to the widow, children, dependent’s mother, father, sister, brother, aunt, uncle, niece or nephew of such member, as he shall direct, and as the laws of the order shall provide.”

The charter thus directs that the order shall, by its by-laws, provide how the members shall designate their beneficiaries, the mode and. manner of payment by the order, and the person to whom alone payment should be made by the order. And by-laws made in accordance therewith are as much a part of the charter as if inserted in the charter itself in express terms.

The order, therefore, is thus prohibited by by-laws, which, in effect, are part of the charter itself, from paying the fund to any one but the person designated by the member in'the mode and manner pointed out by such by-laws, and in the certificates the attention of the members is specifically called to these by-laws as constituting a material part of the contract.

In this case, it is conceded that the by-laws were not observed; that instead of filing an affidavit as required by the by-laws, the decedent filed a certificate only, and it must be assumed that he did not pay the fee; and the by-laws, therefore, by force of being the organic law, prohibit the order from paying the fund to such claimed new beneficiary.

The burden of proof was upon the defendant in error, to show that the affidavit had been made and filed and the fee paid, as provided in the by-laws, by reason of the character of his petition, and the agreement of the parties made in the submission of the case to the trial court.

Instead of merely setting up his own certificate, and letting the other claimant attack its validity, which would be the ordinary course in such cases, he took the initiative — filed a petition alleging therein that in 1898, Lewis Early, the decedent, had become a member of this society, obtained a certificate payable to his wife, Anna, who held the same, and was the beneficiary named therein, until 1899, when said Lewis, by filing a certificate in the words heretofore given, obtained a new certificate of membership and had him, the said James M. Earley, named as the beneficiary, and that by reason thereof the original certificate was rendered null and void, and that he was entitled to the fund as beneficiary instead of said defendant, Anna Earley, the latter of which allegations were denied by Mrs. Earley.

He thus not only assumed the burden of proof, but in the submission of the case, as shown by the record, it was agreed that the court should award the fund to Mrs. Earley, if the plaintiff, James M. Earley, should fail to show that such change was legally made and he legally substituted as beneficiary in place of said widow.

This he clearly failed to do. On the contrary, the finding of facts shows that said assured not only did not comply with the provisions of the by-laws in making snch change, but it shows conclusively that he did not intend to comply with them, that he deliberately evaded them and deceived the record keepers, and his wife, for some ulterior purpose of his own.

It appears that he never asked her for the certificate, or told her of the proposed change; she never knew of the change until after his death; that before and at the time of such change, he contemplated a separation from his wife; that such separation took place the year following such change; that in the certificate filed to obtain such change he referred to disagreement with his wife which would be followed by separation, but did not place the blame on her. The by-laws required the certificate of insurance to be surrendered, “ or if lost or in the posses siou of another who refuses to deliver the same to the member, he shall make an affidavit settingforth the fact,'', etc., and pay a fee of fifty cents• but he did not say in the certificate he filed to obtain such change that his wile had refused to deliver it to him, but that “ she would not return the same.”

The deceased knew that the by-law contemplated and meant that he should ask his wife for the certificate and obtain it if possible. A refusal to deliver, implies and includes necessarily, a prior request to deliver; and without stating an untruth he could not state that she had refused to deliver the insurance certificate to him, so he deliberately chose words that did not, but that might be taken to mean, that he had asked her for it and she had refused to deliver it to him. But he did not swear even to that.

There was no finding by the court, and, therefore, no evidence tending to prove, that she would have refused to deliver it to him, or that he knew she would refuse to deliver it to him if he asked her for it; nor was this conceded; and these material facts,- upon the showing of which alone he could obtain a change of beneficiary without. a surrender of the original certificate, cannot be assumed.

These facts show that he undoubtedly had some ulterior motive in thus acting, when considered with reference to the alleged disagreement with his wife, and is of itself sufficient to lead a court of justice to scan closely the alleged substantial compliance with the duty devolved upon him in this matter. When he deliberately sought to avoid compliance with the by-laws, and did not comply with them either as to the affidavit, or as to the payment of the fee, I cannot conceive it to be an act of justice to hold that he did.

There was no finding as to the payment of the required fee, the payment of which was a necessary requisite to obtain a change which the record keeper could not cheat the society out of by waiver, or favor one member.over, or at the expense of, other members, and, therefore, it must be assumed that there was no evidence of such payment, and the case stands the same as if the trial court had also found that the fee had not been paid. Springer v. Avondale, 35 Ohio St. 620, 623.

So far as the society itself is concerned, while its officers either wil-fully or negligently aided the deceased in disregarding the by-laws and in cheating the society of the fee, it is taking no stand on one side or the other in this contest, and the defendant in error should not be permitted to claim any waivet upon its part of the proper affidavit and payment of the fee, to aid him in his contention. As to him the case stands precisely as if in a suit by him against the society, the society denied that he was made a beneficiary in the mode provided for in the by-laws. Niblack Ben. Soc., Secs. 222, 254.

But, after all, I think the question has been settled by the decisions of the Supreme Court of Ohio; and it is conceded that such changes cannot be made in disregard “ of the law of the land,” which in this case is the state of Ohio. The holding of the court herein, as in all the cases upon which it is based, rests upon the ground that a beneficiary is not a party to the contract. This I believe is opposed to the settled law of this state.

Societies of other states, doing business in this state, by virtue of Sec. 3630e, Rev. Stat., are governed by the laws of this state in their dealings with residents of the state, as they would be without such provision.,

In this state certificates of the character in question, aré held to be contracts — contracts of insurance; State v. Association, 38 Ohio St. 281; and as such they must be construed, and the rights of the parties concerned determined, by the law of Ohio applicable thereto.

This contract was made for the benefit of the wife. There was a direct promise on the part of this association to pay her so much money on the death of her husband. It was made upon a valuable consideration, and delivered to her and, therefore, under the law of this state she was a party to the contract, and entitled to have all of the terms literally fulfilled and performed; and her rights in the contract could not be taken away from her, or divested, except in the manner pointed out by the contract.

Ever since the decision of the case in Crumbaugh v. Kugler, 3 Ohio St. 544, 549, it has béen uniformly held in this state that a contract made for the benefit of another makes that other a party to the contract, and he may enforce it. And this is so although such party is not named in the contract. Emmitt v. Brophy, 42 Ohio St. 82, 88.

Why should a different rule be applied in this case? The parties expressly made her a party to their contract; the contract was delivered to and accepted by her, and held by her for years as a valid obligation with their assent and co-operation.

Being thus a party to the contract, and . in lawful possession of it, Mrs. Earley had an interest in the fund which she could protect. Whether we call it a vested interest or not, whatever may be its character, the parties could not divest her of that interest except by the method prescribed in the by-laws, without her consent. It is not a case of mere expectancy, like that of an heir, and I am at a loss to see how it can be so regarded in this state.

And so our Supreme Court, recognizing these principles, has held that beneficiaries have an interest in the fund that they can protect; with a right to contest the validity of a change of beneficiary made by the member and the society.

“ These laws and regulations (of the society) determine the rights of the members and the association, and may be enforced by the parties or beneficiaries, according to their respective rights as therein provided.” Arthur v. Association, 29 Ohio St. 557, 560.

In Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408], a part of the syllabus is:

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

Under the rule of our Supreme Court the syllabus is what the judges unite in as the law of the case. Could words make the rule of law more emphatic than is done in this syllabus ? While the case was one where the change was attempted to be made by will, the court proceeds to lay down absolutely what the rule' of law in this state requires to make a valid and binding change; that it can only be done by the mode provided for in the by-laws. Thus substantially and in effect stating that such beneficiary is a party to the contract, with an interest that he or she can protect, with a right to contest the validity of any change of beneficiary attempted. It would be singular, indeed, if it could be said that a party had an interest in a contract by its express terms, and yet could not be heard to protect and defend that interest.

It is said that no waiver on the part of the society was involved in the Charch case. Why not ? The society had paid the money, and the defendants alleged that it had paid it to the executor, and that he had improperly paid it to the widow, the beneficiary. It does not appear how this issue was decided, if at all; and the courts disposed of the case without reference to it. It can be said, therefore, that the courts regarded that question as immaterial.

In Supreme Council Cath. Benov. Legion v. McGinness, 59 Ohio St. 531 [53 N. E. Rep. 54], McGinness had a certificate issued, making the defendant in error, his wife, his beneficiary in the sum of $3,000. Subsequently he obtained a new certificate from the officers of the society, making his wife a beneficiary in the sum of $2,000, and his brother John a beneficiary in the sum of $1,000. On the death of the insured the widow brought suit against the society on the original certificate. After John had been made a party and dismissed, the society answered and set up the change made by the insured and itself, and denied her right to more than the $2,000, thus asserting the validity of the change ; but the court below held that the widow was entitled to the whole fund, under the original certificate, and this holding was affirmed on the ground that the brother, John, could not under the charter (New York) be a beneficiary, as he was not of the family of the insured, nor a dependent.

The member and the society, through its officers, united in making the change in the lifetime of the member, and the society, when sued, set it up as a defense, and if the widow, as beneficiary, was no party to the original contract, and, as held in Knights of Honor v. Watson, supra, that it was none of her business who the added beneficiary was; “that she could not question the validity of the change,” it is impossible to see why the court decided as it did.

I think, therefore, that our court of last resort has held these certificates to be contracts of insurance; that the beneficiary is a party thereto, and has an interest therein that he or she may protect, and that entitles him or her to contest the right of a subsequent beneficiary to the fund, or any part of it, and that a beneficial certificate cannot be transferred except in the manner pointed out by the by-laws of the society.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    WILLS — LEGACIES—REAL ESTATE.
    [Hamilton (1st) Circuit Court,
    1902.]
    Elizabeth Schaupp et al. v. Thomas Jones et al.
    1. Legatees oe Proceeds oe Sate oe Read Estate.
    The legatees under a will prescribing that certain real estate be sold and the proceeds be equally distributed among them acquire no title to the real estate under the will, although they may by all uniting in a request therefor avoid the sale and keep the premises instead, still no one can do so alone.
    2. Implied Authority to Seel Real Estate.
    No express authority having been given to the executors of a will to carry out a provision to sell certain lands and distribute the proceeds thereof to certain devisees, that power will be deemed conferred by a provision for the appointment of the executors “ firmly believing that they will fully carry out the ' directions of the will.”
    Heard on Error.
    Arnold Speiser and David P. Schorr, for plaintiff in error.
    David P. Schorr, for plaintiff in error,
    cited:
    The legal title to decedent’s realty is not in his executors, and the devisees by uniting in a conveyance can effectually convey this real estate and divide the proceeds without their intervention. Flickinger v. Saum, 40 Ohio St. 591, 600 ; Foster v. Craig, 2 D. & B. Equity, 210 ; Gay v. Grant, 8 S. E. Rep. 99, 106 [101 N. C. 206]; Skinner v. Wood, 76 N. C. 109 ; Seegar v. Seegar, 21 N. J. Eq. 90 ; Lippincott v. Lippincott, 19 N. J. Eq. 121; Engle v. Mades, 25 Wash. Law, Rep. 229.
    As to the circumstances when, and under which a power to sell is an implication of law. Porterfield v. Porterfield, 37 Atl. Rep. 358, 359 [85 Md. 663],
    Devise of a house is a devise of realty, and the house therefore can not properly be sold and proceeds distributed by the executors. Richmond (Common Council) v. State, 5 Ind. 334; Whitney v. Olney, 29 Fed. Cas. 1108 (§ Mason 280); McMillan v. Solomon, 42 Ala. 358.
    Devise, though not otherwise expressed, is implied in a direction in a will to divide an estate among specified devisees. Linton v. Laycock, 33 Ohio St. 128, 137.
    The authority of an executor to sell when conferred either expressly or by implication will not be extended, but will be strictly construed and limited to the subject matter over which the testator directed its exercise. Nimmons v. Westfall, 33 Ohio St. 213.
    There is no direction in the will in the case at bar, which would fail or which could not be complied with, or which would be disregarded without a sale of the real estate by the executors; under such circumstances, we maintain that the executors have no power to sell, and that plaintiff is entitled to partition as prayed for. Weymouth v. Irwin, 7 Dec. 91 (5 N. P. 248). (Affirmed by circuit court, November Term, 1897.)
    The language of the postscript in the case at bar is merely indicative of the reason why the testator requests that no bond be required of his executors. He has full confidence in them and therefore asks that the customary bond be dispensed with. Any other construction and especially that contended for by defendant in error, namely, that it is a direction to sell, is a forced construction. Alexander v. Wallace, 76 Tenn. (8 Tea) 669.
    A direction by the testator to his executors to manage and control the estate was held to confer no power of sale. Blanton v. Mayes, 68 Tex., 422, 428, 429.

      “ In short it is my will that my wife shall have full and entire control of all my efiects of whatever kindheld, that the will conferred no power of sale upon the wife, who was named as executrix. Rake-straw v. Rakestraw, 70 G-a. 806.
    Chas. T. Dumont, contra.
   GIFFEN, J.

The plaintiffs in error claim title to an undivided one-fourth interest in certain real estate under the following provisions of the last will and testament of Benedict M. Mueller :

“ My house in Cincinnati, 608 Fulton avenue (which I inherited from my dear late father, Nicholas Mueller, to be sold and the proceeds likewise to be divided into four parts, to-wit: First part to St. Rosa’s Catholic Church in memory of deceased parents and myself. Second part to my brother, Andrew Mueller, or in case of his death, to surviving family. Third part to Most Rev. Archbishop Elder or his successor in favor of orphans of the diocese. Fourth part to my cousin, Mrs. Elizabeth Schaupp (nee Gebhart) or (in case of her death) to her children. Benedict M. Mueller.
“ P. S. I, as executor of this will, appoint Rev. B. H. Engbers, Ph. D., of Cincinnati, and Edward Powell, of West Jefferson, Ohio, without bond, firmly believing that they will fully carry out the directions of this will.

In the first place Elizabeth Schaupp acquired no title to the real estate under the will, as the gift was a bequest of money, and although all of the legatees might, by uniting in the request, have avoided a sale by the executor and taken the premises instead, still no one of them could alone do so.

The executor having sold the house and lot, it is claimed that he did so without authority. There is no express authority conferred upon the executor to sell or divide the proceeds of sale of either the personal or real property, and after signing the will it evidently occurred to the testator that he had appointed no one to carry out his will. Hence in making the appointment he uses the language, “ firmly believing that they will fully carry out the directions of this will.” While these words do not amount to a command or direction to the executors, they express the wish and desire of the testator that the persons so appointed shall execute the will as he directs. In other words, they express such intention on the part of the testator.

We think, therefore, that the judgment should be affirmed.


text:
    EVIDENCE — EXCEPTIONS—STREET GRADES.
    [Hamilton (1st) Circuit Court,
    1902.]
    Giffen, Swing and Jelke, JJ.
    Cincinnati v. Catharine Weber.
    1. Exception To Reeusae to Permit Answer to Question.
    An exception to a refusal by the court to permit a witness to answer a question is not properly saved unless it appear from the record what the answer would have been.
    2. Rule as to Inquiry as to Reasonableness oe Grade.
    The limitation of the liability of municipalities by the Supreme Court in Akron v. Chamberlain, 34 Ohio St, 328, to cases where damages result from changing an established grade and from establishing an unreasonable grade, does not permit an inquiry into the reasonableness of an established grade, unless it appear that the establishment of the grade was wantonly or recklessly done.
    J. D. Creed, Otto Renner, Harper & Allen, for plaintiffs in error.
    Frank H. Kunkel, A. H. Morrill, for defendants in error.
   GIFFEN, J.

(Orally.)

This was an action to assess damages sustained by property owners by reason of the proposed improvement of Guy street in this city, pursuant to claims filed by the property owners. Upon the conclusion of the testimony the court directed the jury to return a verdict in favor of the city.

It is claimed that the court erred because there was testimony tending to show that the city had established by ordinance an unreasonable grade, and that the defendant, Catharine Weber, had constructed her buildings on the premises and her improvements long subsequent to the establishment of this grade.

It is also claimed that the court erred in refusing to allow witnesses to testify as to the reasonableness or unreasonableness of this grade so established; but in every instance where the court so refused, although the exception was taken to the refusal, it does not appear by the record what the answer would have been had the witness been permitted to answer, consequently the exception was not properly saved.

As to whether the court erred in arresting the case on the ground that the testimony was immaterial under the circumstances of this case, it appears from the testimony that the grade was established in 1875, and that the improvements were made twelve or fifteen years thereafter, and that the resolution for the improvement under this ordinance was passed, I believe in 1900, about twenty-five years after the establishment of the grade by the ordinance.

In Akron v. Chamberlain Co., 34 Ohio St. 328, the second proposition of the syllabus is as follows :

“ The liability of a municipality for injury to buildings on abutting lots, exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanently fixed, and the damages resulted from a change of such grade; or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.”

Clearly, therefore, had there been no grade established by the city and these improvements had been made, it would have been competent for the jury to inquire whether a subsequently established grade was a reasonable one or not; and it seems on the same line of reasoning that if there is an ordinance establishing the grade and the city has taken no steps to improve in pursuance to that grade for twelve or fifteen years, that the reasonableness of that grade established by ordinance could be questioned by abutting owners. But we have been unable to avoid the force and effect of this syllabus in the case just read, and were we to hold that the reasonableness of this grade so established could be inquired into, it would contravene the doctrine laid down by this case which limits the liability of the city to two classes of cases named therein; and following that decision we must necessarily affirm the judgment of the court below.

But we do not wish to be understood that if it appear that the establishment of the grade by the ordinance was wantonly and recklessly done and that an impossible grade had been established, that anyone would be bound thereby and that that question could not be inquired into; but we think that the testimony offered in this case does not tend to show that the city authorities were not in the proper exercise of the power vested in them.