McCleery v. Woodmen of the World

Petition for rehearing denied June 2, 1931 ON PETITION FOR REHEARING (299 P. 1004) Counsel for defendant Winifred A. Steele, in an earnest petition for rehearing, contends that the decision reached by the court in the former opinion is not supported by authorities. This declaration ignores the authorities cited in our former opinion, and upon the main question, as far as we discover, fails to discuss them.

Among other authorities, upon the pivotal question in the case, is cited 45 C.J., p. 199, § 161, which deals with the right of a member of a mutual benefit association to contract with a beneficiary for an advancement of money to the member or for the payment of dues and assessments by a beneficiary, so that the member would be precluded, upon a compliance with the terms of the contract, from afterwards changing the beneficiary.

Counsel criticizes the mention of "equitable interest" in connection with "expectancy" in defining the right of McCleery, the beneficiary. The only necessity for a definition of the right of McCleery, as a beneficiary, is to show that he did not have or obtain a "vested interest," so as to come within the inhibition contained in section 46-706, Oregon Code 1930, which provides that "no beneficiary shall have or obtain any vested interest in said benefit until the same has become due and payable upon the death of said member." We, therefore, considered whether the claim of McCleery, by virtue of his contract with Young, the member, was a vested interest. Counsel, in a portion of his brief, seems to agree with the court that it was an expectancy. As we view it, the definition is not material to the determination of the case, except to show that it is not a "vested interest." As an excuse for referring to "equitable interest" we again refer to 7 Cooley's Briefs on Insurance, (2d Ed.) p. 6432, referred to in our former opinion, where a portion of the language reads as follows:

"Generally, it may be said that, if sound equities exist in favor of the original beneficiary of an insurance certificate, the insured is estopped to substitute a second beneficiary, whose status is purely that of a volunteer. * * * [Citing authorities.] * * * the right of the member to change the certificate at will is limited by the equitable right acquired by the beneficiary."

The writer is inclined to the belief that the contract right of McCleery with Young to pay the dues and assessments may be described either as an "expectancy," or a "contingency," or as an "inchoate interest." However we pass this definition, except for the purpose of showing that the right, conferred by the contract prior to the death of the member Young, was not a vested right, and the contract was, therefore, not repugnant to the statute referred to.

"A right is ``vested' when there is an ascertained person with a present right to present or future enjoyment; it is ``expectant' when it depends on the continuation of existing circumstances, such as the right of an heir to inherit, provided he survives his ancestor and the ancestor dies seized and intestate; and finally, a right is ``contingent' when it depends on the performance of some condition or the happening of some event before some other event or condition happens or is performed": 6 R.C.L., p. 308, § 294.

As applied to the present case, prior to the death of the member Young, the right of the beneficiary McCleery was expectant, as it depended on the continuation of existing circumstances, to wit: the payment of the assessments in order to keep the benefit certificate in good standing and also depended upon the death of the member. The right of McCleery prior to the death of Charles E. Young was contingent, as it depended upon the performance of a condition, namely, the payment of the assessments and the keeping of the benefit certificate in force before and until the death of the member.

The right of the beneficiary to the fund or benefit is not a vested right within the meaning of section 46-706, Oregon Code 1930, until after the death of the member. A vested right "is an immediate, fixed right of present or future enjoyment; a right perfect in itself, and which is not dependent upon a contignecy": 40 Cyc. 199; 12 C.J. 955, § 485. The right or interest of McCleery in the benefit fund did not become vested or perfected until after the death of Young, but was dependent upon the payment of the assessments.

A careful examination of the textbooks and cases cited in our former opinion, and some authorities since examined, convince us that it is settled law, where a beneficiary makes a binding contract with a member, based upon a sufficient consideration, namely, the payment of dues and assessments so long as the member lives, by which such beneficiary is to receive a certain portion of the benefits and the contract is carried out in full by the beneficiary, the member, in this case Young, cannot substitute a different person as beneficiary for that portion of the benefit which he has contracted shall be paid to the contractee upon the death of the member.

We conclude that the contract made between McCleery and Young, the member, was not for a vested interest in the benefit prior to the death of Young, within the provision of the statute, and was not prohibited by the statute.

No rule of the Wodmen of the World is suggested, with which such a contract would conflict.

The petition for rehearing is denied.

BROWN and BELT, JJ., concur.