Simcoke v. Grand Lodge of A. O. U. W.

I. Tbe constitution of tbe defendant order has tbe following provision:

1. Mutual Benefit Insurance: chance of beneficiary: rules of association. ‘‘Section 15. Any member bolding a ben efa ciary certificate, desiring at anytime- , to make a new direction as to its payment* may do so by authorizing such change in writing on tbe back of bis certificate in tbe form prescribed, attested by tbe recorder, with tbe seal of tbe lodge attached, and by payment to tbe grand lodge of tbe sum of fifty cents; but no change shall be valid or have any binding force or effect until said change shall have been reported to tbe grand recorder, tbe old certificate filed with him, and a new beneficiary certificate issued thereon, — said new certificate to be numbered tbe same as tbe old certificate, provided, however, should it be impracticable for the recorder to witness tbe change desired by tbe brother, attestation may be made by a notary public, or an officer of a court of record authorized to acknowledge deeds.”

On tbe back of tbe certificate, in lieu of which tbe present one was issued, was what purports to be the written authority of tbe member (Lawrence E. Maulsby) for a new certificate to issue, with tbe plaintiff as beneficiary, to which was tbe attestation of tbe recorder of tbe lodge, with the seal of tbe lodge attached; but it is-a fact that tbe recorder was not present to witness tbe *385signature of Maulsby, and because of such fact it is claimed that tbe second certificate is invalid. Tbe contentions on tbis branch of tbe case arise on different views as to wbat amounts to a proper attestation and tbe effect thereof.

We experience some difficulty in reaching a conclusion as to bow far tbe defendant Maulsby intends to admit by bis answer that tbe attempt to change tbe certificate was done by Lawrence E. Maulsby. Taking tbe answer as a whole we think tbe proper inference is that it admits that tbe indorsement on tbe back of tbe first certificate was signed by Maulsby, and that tbe defect consists only in tbe mode of attestation. We are warranted in resolving tbe doubts in such a case against tbe pleader. We have no question, then, but that tbe request for a change was in fact properly signed, and every requisite necessary for a change complied with, except that tbe recorder of tbe lodge did not in fact witness tbe execution by Maulsby, but affixed bis seal and signature to tbe “attest” “many miles away.” Tbe execution was such", that when tbe certificate was presented to tbe officers of tbe grand lodge it was canceled, and a new certificate issued, with a new beneficiary, in accord with tbe wish and right of Lawrence E. Maulsby. Tbe case is entirely free from fraud or imposition, — facts important to have in view in reaching a just conclusion'. We do not find it necessary to determine whether or not, under a strict construction, tbe recorder, in order for a proper attestation, should have personally witnessed tbe execution. We give great weight, to the fact that a new certificate did issue in harmony with tbe wist of Lawrence E. Maulsby, and tbe result was reached' by tbe acts of the only parties then having an interest in tbe transaction. Tbe attestation, in and of itself, was not to our minds indispensably necessary to a change of certificates. Tbe written request indicating the wish of Maulsby was *386the essential. The attestation was a formal proof thereof, which the grand lodge had a right to insist npon before granting the request. After granting the request, the situation is materially different. To plainly illustrate, let us suppose a member of the order is present with his certificate before the officers of the grand lodge who make the change, and in their presence he writes on the back of the certificate the róquest and signs it in their presence. They issue to him a new certificate with a new beneficiary. Could it be said, after the death of the member, that the grand lodge might repudiate its action in granting its certificate, for the want of an attestation? After the granting of the certificate, we think it can be avoided only by the averment and proof of facts that are prejudicial.

"We are cited to numerous cases in which it is held that the change of certificates can be made only in the manner provided by the laws of the order, and that is the true rule. But it is nowhere held, that a change, when made without a literal observance of such requirements, is not valid. Yery many of the cases announcing the rule are based upon facts where members have attempted a change by the terms of a will or by letter, etc., and the correctness of such holding is not to be doubted. We may here say that any arrangement between Lawrence E. Maulsby and the grand lodge by which a new certificate issued before his death, would be binding upon the defendant Maulsby, for the reason that Lawrence E. Maulsby had an absolute right to make such a change, and the defendant Maulsby then had no vested interest in the certificate, although designated therein as a beneficiary. Brown v. Grand Lodge, 80 Iowa, 287, and cases there cited. If it was a legal change, as between the grand lodge and its member holding the certificate, it would be legal as to the appellant. The grand lodge is not here making objections, and hence it submits to the judg*387ment for payment to the plaintiff. Nor the purposes of the case, it admits its correctness. In Titsworth v. Titsworth, 40 Kan. 571, where a similar .question was involved, the order had paid the money into court for the use of the successful contestant, and the court used the language: “When the association issues a certificate or changes a beneficiary, all the questions as to whether it is done or not in accordance with its rules and regulations are concluded.” See, also, Splawn v. Chew, 60 Tex. 532, and Manning v. Ancient Order, 5 S. W. Rep. (Ky.) 385. We are well convinced that the defect claimed in the request for a change of beneficiaries is of no avail to the appellant.

II. We may, for the purposes of the case, concede, as claimed by the appellant, that the defendant order 2. -: step-father as beneficiary: construction of statute. is subject to the provisions of chapter 65 of the Acts of the Twenty-First General Assembly, as to the making’of insurance. Section 7 of the act contains the following: “No corporation or association organized or operating under this act shall issue any certificate of membership or policy to any person under the age of fifteen years or over the age of sixty-five years, nor unless the beneficiary under said certificate shall be the husband, wife, relative, legal representative, heir or legatee of such insured members.” Lawrence E. Maulsby’s mother died before the certificate in suit issued, and at her death she was the wife of the plaintiff, who is “step-father” to Lawrence E. Maulsby. It is urged that the certificate is void because the plaintiff is not a “relative” within the meaning of the statute. By particular specification the statute comprehends many classes of relatives, and then supplements their use by the term “relative,” without words of limitation. Nothing seems to indicate that the word is used in a restricted sense. A step-father is a relative by affinity, and the relationship continues after the death of the wife, on whom the relationship depends. *388In Spear v. Robinson, 29 Me. 531, it is said: “By the marriage one party thereto holds hy affinity the same-relation to the kindred of the other that the latter holds by consanguinity, and no rule is known to us under which the relation by affinity is lost on a dissolution of the marriage, more than that by blood is lost by the death of those through whom it is derived. The dissolution of a marriage, once lawful, by death or divorce, has no effect upon the issue; and, it is apprehended, it can have no greater operation to annul the relation of affinity which it produced.” There is nothing in the spirit or purpose of the law that indicates to us that relatives by affinity are not within the legislative intent.

Ill; It is said that the plaintiff had no insurable interest in the life of Lawrence E. Maulsby, and hence the designation of him as beneficiary is against public policy, because of which the certificate is void. Our construction of the statute by which such insurance is permitted is decisive of the question. The judgment below ÍS AEEIRMED.