Waldum v. Homstad , 119 Wis. 312 ( 1903 )

Oassoday, O. J.

There is no bill of exceptions. The facts, are all found by the court, and of course are undisputed. It stands admitted that the association was authorized to issue certificates to its members, according to its constitution, bylaws, and rules, on the mutual assessment plan, entitling such, members to participate in the beneficial fund of the order for the amount specified in such certificate. Such was the certificate in the case at bar, issued by the association to the deceased, Elias Sklet, and payable at his death to his estate. The question presented is whether, from the facts found, the deceased succeeded in changing the beneficiary from his estate, named in his certificate, to the plaintiff in this action. Twelve days before his death he wrote to the grand secretary of the association requesting him to change the beneficiary-in his policy from his estate to the plaintiff in this action,, giving his reasons therefor, and requesting prompt attention. The next day the grand secretary wrote to the deceased to the effect that, in order to get his policy changed, he must give the old policy and fifty cents to his local secretary, therein named, and that such local secretary would then forward the same to him, the grand secretary, and that the deceased would then get a new policy from him. It is undisputed that ten days before Sklet died be fully complied with such direction of the grand secretary. The contention is that the attempted change of the beneficiary was ineffectual, because the local secretary never forwarded the old certificate or the fifty cents to the grand secretary. There is no claim nor pretense that •the grand secretary did not have authority to receive the old certificate and the fifty cents and change the beneficiary, as requested by the deceased twelve days before his death. That he had such authority is manifest from the findings. Having such authority, it was competent for him to direct the deceased, as he did, to deliver the certificate and fifty cents to the local secretary, instead of himself. Having given such direction, and the same having been fully complied with by the deceased, the transaction was the same, in legal contemplation, as though the deceased had delivered the certificate and •the fifty cents to the grand secretary personally, and requested •him to make such change. In his letter giving such direction the grand secretary informed the deceased that upon his compliance with such direction he would get a new policy from him, the grand secretary. It is found that there is nothing in the constitution, by-laws, rules, or regulations of the order restricting the right of members to make such change. There is nothing in the statutes to prevent such change. On the contrary, the statute expressly declares that:

“Any member may change the beneficiary named in his •certificate or policy without the consent of such beneficiary, by complying with the by-laws of the society, order or association which issued the same.” Sec. 1955c,. Stats. 1898, as amended by ch. 101, Laws of 1899.

Since the right of members to make such change was not restricted by anything in the statutes, nor in the constitution, by-laws, rules, or regulations of the order, nor in the contract with the deceased, it is obvious that he was not precluded from rnairing the change in the manner indicated merely because the association had not prescribed a different method for making such change. The right of the assured to make such change, under similar circumstances, has frequently been recognized and sanctioned by this and other courts. Rawson v. Milwaukee M. L. Ins. Co. 115 Wis. 641, 646, 92 N. W. 378, and cases there cited. Thus it is held in Indiana that:

“Where a member of a benefit association has a right to change the beneficiary named in his certificate, and no prescribed mode of making the change is shown, an assignment •of the certificate, with directions to the association to pay the proceeds to the assignee, effects a change.” Milner v. Bowman, 119 Ind. 448, 21 N. E. 1094. See, also, Niblack, Ben. Soc. & Acc. Ins. §§ 212, 214.

The only remaining question is whether what was done by the deceased under the direction of the grand secretary had the effect to change or modify the contract. It is said by a learned text-writer that:

“When a member has done all that he is required to do under the contract to effect a change of beneficiaries, the change will be deemed complete, even though some ministerial acts of the officers of the society are still to be performed.” Sec. 223, Niblack, Ben. Soc. & Acc. Ins.

This court has recently held that, where the insured has done every substantial act required of him, and dieS before the new certificate is actually issued, and only formal acts on the part of the association remain to be performed, the change will be considered to have been made, even in an action at law. McGowan v. Supreme Court I. O. F. 104 Wis. 173, 80 N. W. 603; Opitz v. Karel, 118 Wis. 527, 95 N. W. 948. To the same effect, Hirschl v. Clark, 81 Iowa, 200, 47 N. W. 78, 9 L. R. A. 841; Schmidt v. Iowa K. P. Ins. Asso. 82 Iowa, 304, 47 N. W. 1032; Carpenter v. Knapp, 101 Iowa, 712, 70 N. W. 764. We must hold that the beneficiary was effectually changed from the estate of the deceased to the plaintiff.

By the Court. — The judgment of the circuit court is affirmed.