Beckner v. Beckner , 104 Ga. 219 ( 1898 )

Simmons, C. J.

1. The plaintiff filed an equitable petition as set out in the official report and condensed in the second headnote. The subordinate lodge of the company answered the petition; the defendant Beckner, the illegitimate son of the insured, demurred to the petition, and also filed his answer. His demurrer contained five grounds. One of these was that there was no equity in the petition, another was merely an enlargement of the same ground, and the three others were speaking demurrers. These last introduced new facts and averments which were necessary to support the demurrer and which did not distinctly appear upon the face of the petition. Such demurrers will not be considered by the court, but will be overruled. “A demurrer which the pleader attempts to sustain by an averment of fact in a plea or answer is in the nature of a speaking demurrer, and is not aided by such an averment.” Beach, Mod. Eq. Pr: § 226; Brooks v. Gibbons, 4 Paige, 374; Stewart v. Masterson, 131 U. S. 151, and cases cited. It is clear that this court can not consider these speaking demurrers, or demurrers relying for support upon averments in the answers, nor could the court below properly have done so. Such matters may be taken advantage of by plea or answer. We find in the record the answer and petition for interpleader filed by the subordinate lodge, and also the answer of the defendant Beckner. These portions of the pleadings are not necessary, or proper in considering the demurrer to the petition. This court can not consider them, and the court below ought not to have done so, in passing upon a demurrer to the original petition. Eliminating, therefore, the speaking demurrers, the answer and petition for interpleader filed by the subordinate lodge, and the answer of the defendant Beckner, we are brought to a consideration of the only question made, which is whether there was equity in the original petition.

2. The plaintiff in her petition states how and when the policy of insurance was obtained; that her money had paid .all assessments due thereon up to a certain time; that upon that date her husband, the insured, took the policy from her possession without her knowledge or consent, went to Texas, and had the certificate changed so as to. make his illegitimate son the beneficiary; that under the charter and by-laws of the benefit society, neither he nor the society had the right to change the beneficiary from petitioner to the illegitimate son without her consent. It seems to be now settled that the beneficiary in a policy issued by a mutual benefit society may be changed, if the laws of the order so provide or if such change is not prohibited by the laws of the society. If, therefore, the plaintiff had alleged or admitted in her petition that the laws of the society authorized the change of the beneficiary and had relied solely upon the contention that the payment by her of the assessments created in her a vested right which could not be divested by the action of the insured and the society without her consent, then the court would have been right in sustaining a general demurrer to the petition. Had she attached to her petition the laws of the society and they had authorized this change, the court would likewise have been right. Instead, however, of making this admission or attaching the laws as an exhibit, she distinctly averred that under the laws of the society this change of the beneficiary was unauthorized; that the laws of the society limited the right of change of beneficiary to members of the family of the insured and to those dependent upon him; that the illegitimate son was thirty-six years of age when the change was made, was not a member of the family of the insured, and was not in any way dependent upon him for support; and that the change made was, therefore, prohibited by the laws of the society. Talcing as true the petitioner’s averments which are well pleaded, the change of the beneficiary as made was, under the laws of the society, unauthorized and illegal. The illegitimate son who now claims the fund not being a member of the family of the insured, being thirty-six years of age and not dependent upon the insured, the laws of the society restricting beneficiaries to members of the family or those dependent upon the insured, and the change having been made to the illegitimate son in violation of these laws, it is evident that the court erred in sustaining the demurrer upon the ground that there was no equity in the petition.

Judgment reversed.

All concurring, except Cobb, J, absent.