Schneider v. Modern Woodmen of America , 96 Neb. 545 ( 1914 )

Fawcett, J.

Defendant is a fraternal beneficiary society. As such it issued a certificate of membership to one John M. Maask, whom we will designate-as the assured. In the certificate the mother of the assured was named as beneficiary. The certificate provided that, in case of the mother’s death before that of the assured, the certificate should be payable to the assured’s legal heirs. The mother predeceased the assured. Upon the subsequent death of the assured, plaintiff was appointed administrator of his estate, and as such brought this action in the district court for Dodge county to recover upon such certificate. From a judgment in his favor, defendant appeals.

Plaintiff in his petition recites that he “brings this action to recover said sum of $1,000 for the use and benefit of the legal heirs of said John M. Maask, deceased.” The petition also alleges the facts above set out, and further alleges that, “under the terms of said certificate, the said sum of $1,000 is now due and payable to the legal heirs of said John M. Maask.” This allegation, alone, is sufficient to defeat plaintiff’s right to maintain the action. The plaintiff is not a legal heir of the assured, but is the administrator of his estate. As administrator he has absolutely no interest in the membership certificate upon which the action is based. It is not an" asset of the estate of John M. Maask, deceased. No part of it can be applied to the payment of his debts or to the costs of administration of his estate. The administrator is a stranger to this certificate, and has no more right to maintain an action upon it than if Mrs. Fringel, the mother of the assured and the beneficiary named in the certificate, were still living. If she were living and were neglecting to take steps to collect the certificate, that would be none of the administrator’s cóncefin. She being dead, and the certificate being payable to the legal heirs of Mr. Maask, instead of to her, the relation of the administrator to the certificate is in no manner changed. Under the provisions of section 94, ch. 43, Comp. St. 1911, and under the provisions of the bylaws of defendant society, the only persons interested in the beneficiary certificate are the legal heirs of the assured. They are therefore the only persons wrho can prosecute an action upon the certificate. If they see fit to neglect to do so, that is their matter, and is no concern of the administrator. The petition alleges who the legal heirs are, gives their names, and states their relationship to the assured, thus showing that they were known to the plaintiff when the action was commenced, and that they are the ones to whom the certificate belongs and is payable. The petition alleges that plaintiff brings this action “for the use and benefit of the legal heirs of said John M. Maask,” but it nowhere alleges that it does so at the request of or by the authority of such legal heirs. He has no right to incur expense of litigation without the consent of the heirs. If they desire to have the matter litigated, they have the right to incur their own expenses and employ their own counsel. If plaintiff should be permitted to recover in this action, wrho would have to bear the expense of litigation? Plaintiff, as administrator, could not charge it up against the estate of Mr. Maask any more than he could charge the expense of any other purely private litigation to the estate. If he should collect the money upon a judgment rendered in this action and fail to pay it over to the heirs, the judgment would be no protection to the defendant in another action brought by- the rightful owners of the certificate. If he should, collect the money and squander it, neither the owners of the certificate nor the defendant could recover from his bondsmen as administrator, for the reason that; in everything done in relation to the-bringing of the action and as to all proceedings thereunder, the court would be compelled to hold that he had acted clearly outside of his duties as administrator, and that for such acts his bondsmen could not be held liable. Suppose the administrator had found among the papers of' Mr. Maask, a note payable to Carl Schneider, whom the petition names as one of the present legal heirs. Could the administrator bring an action upon that note against the maker, in his petition allege that Carl Schneider was the owner of the note, fail to allege that the decedent had any interest in it at the time of his death, and maintain such action over the maker’s plea that the plaintiff was not the real party in interest? We think not. We are unable to see any theory upon which plaintiff can maintain the present action.

•>It is conceded by defendant that it should pay the amount of the certificate to some one, but it insists that it should only be required to make payment to the actual beneficiaries. The evidence shows that the plaintiff, after the death of the assured, gave defendant the notices and proofs of death required by the by-laws of the association. While plaintiff, as administrator, cannot maintain the present action, the heirs for whom he assumed to act may ratify his acts in giving defendant notice and furnishing it proofs of death, as required by the by-laws, on the theory that in giving those notices and furnishing the proofs of death plaintiff was acting as the agent of the heirs for that purpose. The fact that at the time of so acting he may have been a self-constituted agent does not prevent their ratifying his unauthorized act. 31 Cyc. 1246, and note 92, also page 1283, and note 38; Mechem, Law of Agency, secs. 124, 128.

The judgment is therefore reversed and the cause remanded to the district court, with directions to permit the substitution of the real parties in interest, if they so move within a reasonable time to be fixed by the court, as plaintiffs, as of the date of the commencement in that court of the present action, and for further proceedings according to law.

Reversed.