Slaughter v. Slaughter , 186 Ala. 302 ( 1914 )

SOMERVILLE, J.-

-Under the regulations and bylaws of the Masonic Lodge, which brings this- fund into court for the benefit of the person lawfuly entitled to receive it, Jacob Slaughter, the deceased member, was authorized to designate the beneficiary of the endowment to be paid at his death.

The provisions directly pertinent are:

“(a) Every endowment member should execute and deposit with the secretary of his lodge an endowment certificate showing the disposition he desires made of his endowment, which certificate shall be respected after death as his last will and testament.”

“(b) In the absence of such certificate the endowment must be paid to the widow and orphans or legal heirs subject to the endowment provisions.”

The certificate itself recites that “this certificate may be changed by signer from time to time.” There are no specific provisions here as to the mode by which this change is to be effected. But it seems perfectly clear, by necessary implication, that it must be done by the member either by filing a new certificate, or by indorsing the change upon the original. It is to be noted that the right here recognized is not to change the beneficiary merely, bnt to change the certificate. Certainly this cannot be done by parol expression merely. The object in view is to avoid the disputes, the doubts, and the frauds, which must inevitably attend the award of such benefit endowments, if the beneficiary can be changed by and made subject to the vagaries of parol evidence in the shape of alleged antemortem statements by the deceased. While the member’s, certificate is not regarded as a testament, the analogy is very strong, and the rules of law which protect wills against posthumous attack and alteration are applicable with almost equal force to benefit certificates, as far as sound legal policy is concerned.

It is true that courts of equity have in some cases given effect to attempted but unperfected changes of beneficiaries by association members, but in doing so they have proceeded with great caution.

.“The rule, that the parties must comply with the laws of the society in order to effect a change of beneficiary is subject to three exceptions, namely: (1) Where the society has waived compliance with its regulations or estopped itself to assert noncompliance therewith; (2) where it is beyond the power of the member to comply literally with the regulations, as where the rules require a surrender of the original certificate, and it is impossible for the member to surrender it; and (3) where the member has done all that he is required to do, and only formal ministerial acts on the part of the society remain to be done in order to complete the change, and the member dies before performance thereof.”—29 Cyc. 133b.

This text is well supported by the following, among other, authorities: Grand Lodge, etc. v. Noll, 9 Mich. 37, 51 N. W. 268, 15 L. R. A. 350, 30 Am. St. Rep. 419; Independent Foresters v. Keliher, 36 Or. 501, 59 Pac. 1109, 60 Pac. 563, 78 Am. St. Rep. 785; Hall v. Allen, 75 Miss. 175, 22 South. 4, 65 Am. St. Rep. 601; Lahey v. Lahey, 174 N. Y. 146, 66 N. E. 670, 61 L. R. A. 791, 95 Am. St. Rep. 554; Luhrs v. Luhrs, 123 N. Y. 367, 25 N. E. 388, 9 L. R. A. 534, 20 Am. St. Rep. 754; Marsh v. Sup. Council, etc., 149 Mass. 512 21 N. E. 1070, 4 L. R. A. 382. See, also, the notes in 15 L. R. A. 352, 19 Am. St. Rep. 781, 786, 52 Am. St. Rep. 543, 562, and Bacon on Benefit Societies, §§ 309, 310.

While several of appellant’s witnesses testify to statements by the deceased member of his wish to make appellant the beneficiary of this endowment only one witness testifies that he expressed that wish to an officer of the lodge. Accepting as true the testimony of this witness (Luke Pope), it is clear that the deceased member never made such an attempt to change the certificate as would authorize a court of equity to treat the change as accomplished.

Moreover, Pope’s testimony in this regard is radically contradicted by another of appellant’s witnesses (O’Reilly), who was present on the occasion specified; and the whole statement is denied by Alford, the Worshipful Master of the local lodge, to whom Pope asserted the deceased had expressed his wish to have the certificate changed.

Of course hearsay statements of the deceased that he had told Alford to make the change are not competent evidence, and must be rejected.

On the whole evidence, which is confused and conflicting, we are not reasonably convinced that the deceased requested Alford to make the change, and on either view of the case we cannot ascribe error to the finding and decree of the chancery court.

It is of no consequence that Sarah Slaughter, the beneficiary named in the certificate, was not the lawful wife of the deceased member. The rules of the order permit a member to designate another beneficiary though he have wife and children living, and the rules of public policy which have been applied by the courts to ordinary life insurance do not govern benefit endowments. Where no rule of the order and no public statute restrict the beneficiary to a lawful wife, the allusion to the beneficiary in the certificate as the member’s wife is mere descriptio personae, and not a warranty to the Order that she is a lawful wife. The whole subject is ably discussed in the recent case of Mutual Life Ins. Co. v. Cummings, 66 Or. 272, 133 Pac. 1169, 47 L. R. A. (N. S.) 252, and the authorities are collected in the editor’s note thereto.

The decree will be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.