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(248 S.W.) the estate of said J. B. Bell was absolutely void newly designated beneficiary, such action on and without any authority; that said independ the part of the member and the society has the ent executor, representing the estate of said effect of completely revoking the former benefit J. B. Bell, voluntarily surrendered said certifi- certificate and putting at rest any claim whatcate to this defendant order and notified it that ever to benefits thereunder, whether the newly it had been informed that said certificate was designated beneficiary comes within the statuvoid and issued without any authority in law, tory classes capable of taking or not." whereupon, and acting upon said advice from said administrator, who as stated before was The by-laws of the society are incorporated independent executor of the estate of J. B. in and made a part of the contract of insurBell

, duly qualified and acting, and being fully ance. Section 2 of article 1 (Mutual Aid Deempowered to bind said legatees of said Bell partment) of these by-laws provides: provided for in his will, this defendant order paid to the said V. Nora A. Bell the full sum of "The object of this department shall be to $500 on the certificate issued by it to her, this combine male and female persons of sound bodibeing the full and largest amount that could be ly health, exemplary habits and good moral paid by this defendant order to a beneficiary of character, into a secret fraternal, beneficiary any one member, and this defendant says that and benevolent order; provide funds for their the certificate declared on in this cause was un- relief; comfort the sick and cheer the unfortuauthorized and could not legally have been is- nate by attentive ministrations in times of sorsued in the first instance, and second, that un- row and distress; promote fraternal love and der all the facts and circumstances in this case, unity; create a fund from which, on reasonable by reason of said independent executor conced- and satisfactory proof of death of a member ing that said certificate was void and surrender- who has complied with all the requirements of ing same back to the defendant, with the state- the order, there shall be paid to the person or ment that they would not further prosecute any persons named in the member's certificate of claim thereunder, that this defendant paid to membership (which is here termed benefit certhe wife and widow of said J. B. Bell, as afore- tificate), as beneficiary or beneficiaries, such stated, said sum of $500, which said amount sum or sums of money as may be ascertained would not have been paid but for the statement by the board of managers, under the provisions and actions of said independent executar, and of article III, section 2, of these laws. The that by reason of the said statements and ac- beneficiary or beneficiaries (except as stated in tions to this defendant that the plaintiff herein, sections 3 to 8, inclusive of this article), shall claiming under the will of said Bell, as alleged be the wife, the husband, children and their deby them, which also appointed and designated scendants (adopted child or children), father them independent executors, that they be es

or mother or brother (persons dependent upon topped from asserting any claim whatever to a member for support), brothers, sisters and said policy, and that neither have they shown the children of the deceased brothers and dein themselves any right to prosecute this suit ceased sisters. The name or names of the for it shows that the said J. B. Bell left inde- beneficiary or beneficiaries shall be written in pendent executors of his estate with full power every benefit certificate. However, these laws to sue for and do any and all things necessary are subject to the statutory laws enacted by the to be done, and these plaintiffs have no right Legislature of Texas.” whatever to further prosecute this suit, and this defendant here now prays the court, first,

Section 6, art. 1, provides: that on a final trial hereof, if the above demurrers are overruled, that it have judgment but not divorced, may designate some one

"Sec. 6. A husband separated from his wife, that the plaintiff take nothing by reason of this more persons other than his wife, his benefisuit, and that it may go hence without day and ciary; provided, the beneficiary so designated recover all costs."

to the exclusion of the wife shall be the child The case was tried before the court with

or children, if such there be. If there be no out a jury, and judgment rendered for de- child or children, and he be aged or infirm, he

may designate as his beneficiary the person or fendant in error, to which plaintiffs in error persons with whom he may reside or upon excepted, and from which they have appealed. whom he may depend for support; should he

The trial court held “that as a matter of be not aged or infirm, he will only be permitted law Bell, in attempting to make a change of to name as beneficiary, other than his wife, the beneficiary, did not comply with the laws of beneficiaries named in section 2 of this article, the order," and for that reason the attempted and in the order therein named.” change was not, as a matter of law, of any force or effect, and plaintiffs in error, in

Section 7, art. 1, provides: their first assignment of error and proposi

“Sec. 7. Where the wife is named benefition thereunder, challenge this holding, con- ciary in the benefit certificate issued to the tending that

husband, and the wife shall thereafter abandon

the husband, or the wife being in sound bodily “When a member of a fraternal beneficial so-health shall fail or neglect to care for or minisciety, desiring to effect a change of beneficiary, ter to the husband or the husband and family, makes application for such change of bene- and thereby the husband shall desire to desigficiary in the manner and form required by the nate another and different person as benefiregulations of such society, and the society, ciary, to the exclusion of the wife, he may do through its regularly and properly authorized so hy filing with the grand secretary his affi. officers, accepts such application, and there- davit, accompanied by the affidavit of at least upon issues to such member its new beneficial two credible witnesses, stating the fact of his certificate, wherein is recorded by the society a being abandoned by his wife or of her failure

or

or neglect to care for, or minister to him, or, corporated charitable institution, he shall have to him and his family; and if the grand secre- the privilege, with the consent of the society, tary shall be satisfied with such proof, upon to make such institution his beneficiary. Withthe surrender to him of the certificate so is- in the above restrictions each member shall sued, with the husband's request indorsed there- have the right to designate his beneficiary, and on, and stating the names of the new benefi- from time to time have the same changed in ciaries, who may be his children; if there be no accordance with the laws, rules or regulations child or children, and he be aged or infirm, the of the society, and no beneficiary shall have or person or persons with whom he may reside, obtain any vested interest in the said benefit or upon whom he may depend for support, or until the same has become due and payable the beneficiaries, other than his wife, named upon the death of the said member; provided, in section 2 of this article, and in the order that any society may, by its laws, limit the therein named, and the payment of twenty-five scope of beneficiaries within the above classes." cents to the grand secretary, he shall cancel said certificate so surrendered and shall issue in lieu of said certificate so surrendered and canceled, a new certificate in which shall be written the name of the new beneficiary. Said certificate shall be subject to all the

conditions and grant to the member and to the beneficiaries therein named all the rights and privileges of the certificate so returned and cancelled. Said new certificate shall vacate and render null and void the certificate so returned. said certificate and the issuance of one in lieu of same shall be made on the books of the board of this department."

A record of the surrender and cancellation of

Bell's application for a new certificate with change of beneficiary is as follows:

"Application for Change of Policy.

"No. 1. I, J. B. Bell, a member of Solomon

certificate No.

Lodge No. 18 of the city of Houston, county of Harris, in the state of Texas, holding benefit V. N. A. Bell, desire to surrender the aforesaid -, payable at my death to certificate and pray that a new and different certificate be issued and I hereby designate to be the new beneficiary, J. B. Bell's estate, of Houston, county of Harris, state of Texas, who bears to me the relation of -.

"[Signed] J. B. Bell, Member Applying. "Sworn to and subscribed before me, at HousTexas, this 27th day of July, A. D. 1917. [Signed] J. F. Hardeway, Notary Public, Harris County."

Section 8, art. 1, provides:

"Section 8. If under the facts and circum-ton, stances stated in the last preceding section, the certificate shall be lost, or withheld from the husband, and he be not able to surrender the same for cancellation, as therein stated, he shall nevertheless have a new certificate issued as by said section provided, upon the member filing with the grand secretary the affidavits as by said section required, and in addition thereto, shall file with the grand secretary his affidavit which shall set forth the loss of said certificate, or the facts that the same is being withheld from his possession, with his application in writing, stating the facts and stating the name or names of the desired new beneficiary or beneficiaries, who shall be those as set forth in the last preceding section, and upon the payment of twenty-five cents the grand secretary shall issue in lieu of said certificate so lost or withheld, as the case may be, a new certificate in which shall be written the new beneficiary

"I certify on honor that the above request was made by the member whose name appears as an applicant and that the signature is that of said applicant. [Signed] W. W. Ballard, Secretary of Solomon Lodge 18, Houston, Texas. [Seal.]"

"No. 2. Affidavit of Applicant. "State of Texas, County of Harris:

authority, on this day personally came and ap"Before me, the aforesaid and undersigned peared J. B. Bell, who after first being by me J. B. Bell; that he is a member in financial duly sworn, deposes and says that his name is standing on the books of Solomon Lodge No. 18 U. B. F.; that he is the insured under policy

No.

or beneficiaries. Said new certificate shall be

subject to all the conditions and grant to the member and to the beneficiary therein named all the rights and privileges of the certificate so lost or withheld, and shall render null and void the certificate so lost or withheld. The record of the certificate on the books of the board of this department of the certificate so

lost or withheld shall be canceled and the new certificate so issued be entered on the books of the board of this department."

and that the names of the benefi

has been mis

ciaries under the said policy are V. N. A. Bell,
and that the said policy No.
placed, lost, or destroyed, and that this affiant,
after due search, has been unable to find the
said policy; that affiant is desirous of having a
policy issued in lieu of the one above described,
that this affidavit is made for the purpose of
and all others that may be outstanding, and
informing the United Brothers of Friendship of
Texas of the fact that the said policy has been
lost or destroyed, and for the purpose of in-
ducing the United Brothers of Friendship of

Article 4832, Vernon's Sayles' Civil Stat- Texas to issue a policy on the life of this affiant in lieu of the one above described. It is utes, is as follows: the purpose of this affidavit to avoid the making "Beneficiaries.-The payment of death bene- of said United Brothers of Friendship liable fits shall be confined to wife, husband, relative under two separate policies on the life of this by blood to the fourth degree, father-in-law, affiant. mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person or persons dependent upon the member: provided, that if after the issuance of the original certificate the member shall become dependent upon an in

―――

"[Signed] J. B. Bell, Member Applying. "Sworn to and subscribed before me, at Houston. Texas, this 27th day of July, A. D. 1917. [Signed] J. J. Hardeway, Notary Public. [Seal.]" Indorsement on margin: "August 1, 1917.

(248 S.W.)

To W. L. Davis, Grand Secretary, U. B. F. and
S. M. T. of Texas, Houston, Texas."

wishes to receive a new certificate, naming his estate as a beneficiary, and thus procures the issuance of a new certificate purporting

[1, 2] Plaintiffs in error's proposition, supra, is based upon the contention that the to cancel the first one and naming his estate member "makes application for such change as his beneficiary, in violation of article in the manner and form required by the regu-4832, R. S., supra, which requires a change lations of such society." It is seen that the in beneficiary must be made in compliance application falls far short of complying with with the laws, rules, and regulations of the the by-laws. The only provisions for a hus- society; and in violation of all the rules of the society, and in no wise complying with band changing his beneficiary, when the certhe by-laws regulating the issuance of a new certificate and the changing of his bene

tificate is payable to his wife, are found in sections 6, 7, and 8 of article 1 (Mutual Aid Department), supra. From them it is seen that a change in beneficiary can be made in two instances only: (1) Where the husband is separated from the wife, but not divorced (section 6); and (2) where the wife abandons the husband, or being in sound bodily health.

ficiary. This he could not do in the manner attempted. The only restriction upon the ficiary at will is such as is found in the power of the member to change his benestatutes of the state, and in the constitution and by-laws of the society. The change in beneficiary must be made in the manner prescribed by the by-laws, for the constitution and by-laws of a fraternal benefit society, being binding on the member, are properly con

to him.

shall fail or neglect to care for or minister to the husband and family (section 7). Where the facts mentioned in section 7, supra, exist, and the husband desires to change his bene-sidered as forming a part of the contract beficiary to the exclusion of the wife, he may tween the member and the society. The change do so by filing with the grand secretary his must be made in the manner designated in affidavit, accompanied by the affidavits of at such provisions, or it is void. Therefore we least two credible witnesses, stating the fact hold that Bell's right to revoke his former of his being abandoned by his wife, or of her designation of beneficiary was governed by failure to care for or minister to him or to the statute and by-laws, and in doing they him and his family, whereupon, if the grand must be complied with, and as they presecretary is satisfied with such proof, upon scribed the regulations to be observed in makthe surrender to him of the certificate so is-ing a change of beneficiary, and designated sued, with the husband's request indorsed the persons who could be named as new thereon, and stating the names of the new beneficiaries, his right to name a new benebeneficiaries, a new certificate may be issued ficiary was contingent upon a compliance with the requirements of the statute and bySection 8, art. 1, supra, provides that "if laws, and that the attempt of Bell to change under the facts and circumstances stated in his beneficiary, as was done, was ineffectual section 7, the certificate shall be lost or with- and did not cancel the first certificate in held from the husband, and he be not able which his wife was named beneficiary. to surrender same for cancellation," he may Article 4832, Vernon's Sayles' Civil Statutes, procure the issuance of a new certificate by §§ 7 and 8; article 1 (Mutual Aid Departfiling with the grand secretary the affidavits ment), by-laws of society; Bacon on Benefit required by section 7, and in addition his Societies, § 310c; Joyce on Insurance, § 753; affidavit of the loss of his certificate, or the 1 Cooley's Briefs on Law of Insurance, p. fact of its being withheld from him, with his 803; 4 Cooley's Briefs on Law of Insurance, application in writing stating facts, and p. 3776; note 19 Am. St. Rep. 786-790; Grand stating the name or names of the new bene-Lodge v. Iselt (Tex. Civ. App.) 37 S. W. 377; ficiaries, who shall be those mentioned in Gray v. W. O. W., 47 Tex. Civ. App. 609, 106 said section 7, in which new certificate the s. W. 179 (writ denied); Flowers v. W. 0. name or names of the new beneficiaries shall W., 40 Tex. Civ. App. 593, 90 S. W. 526; Sturges v. Sturges, 126 Ky. 80, 102 S. W. 884, 12 L. R. A. (N. S.) 1014; Association Brown (C. C.) 33 Fed. 11; Pettus v. Hendricks, 113 Va. 326, 74 S. E. 191; Elsey v. Odd Fellows Mutual Relief Ass'n, 142 Mass.

be written.

V.

Now, none of the facts existed to entitle Bell, under the by-laws, to change his beneficiary. His wife was not separated from, she had not abandoned, him; nor had she failed or neglected to minister to him-in-224, 7 N. E. 844. deed, no such facts are even claimed to have existed, but in the face of the absence of such facts, and contrary to the by-laws governing such matters, and without even making affidavit himself of the fact of abandonment or lack of ministration by his wife, and without the affidavits of two witnesses to such facts, as required by section 7, supra, he simply makes affidavit that his certificate is lost (which is itself false), and that he 248 S.W.-30

In Bacon on Benefit Societies, § 310c, supra, the law is stated as follows:

"The question occurs as to the effect on the rights of the beneficiaries first designated by an attempted change of beneficiary which is incompliance with the required formalities and complete, or where the change being effected by the issuance of a new certificate, is illegal because the second beneficiaries are not entitled to take. While it seems to be taken for granted

in the cases cited in the preceding sections that, ciary or beneficiaries named in the benefit cerif the attempted change of beneficiary is not tificate of the deceased member, or to such percomplete, the rights of the first beneficiaries are sons as in this law are designated beneficiaries not affected, because the revocation is not made and in the order so named, or to such person complete by the issuance of the new certificate, as may be designated by the member in his or it is now settled that if for any reason the her last will; provided, the beneficiary so deschange of beneficiaries is invalid, the rights of ignated by last will, shall under these laws, be the first beneficiary remain in force."

a legal beneficiary, and be designated in the or

der provided in section 2, art. 1, hereof, if any In 4 Cooley's Briefs on the Law of Insur- such survive him or her.” ance, p. 3776, supra, the rule is thus stated: “If, however, the attempted change is invalid beneficiaries by will is granted to the in

It is thus seen that the right to designate and ineffective for any reason, the rights of the original beneficiary are not affected, and the sured, but the by-law plainly says thatoriginal designation remains in force."

"The beneficiary so designated by last will

shall, under these laws, be legal beneficiaries, [3] But plaintiffs in error insist that, if the and be designated in the order specified in secmanner in which the new certificate was is. tion 2, art. 1, thereof, if any such survive him sued was irregular, the defendant in error or her." acting through its regular officers accepted

In his will, Bell did not say anything about the application for a new certificate, and is.

a beneficiary in his certificate, but, to the sued same, and therefore it had the effect to completely revoke the first benefit certifi. in all debts due me, including insurance on

contrary, directed his executors to "collect cate.

If this contention be conceded, in procuring my life, and to dispose of any personal propthe issuance of the new certificate, under the erty that I may leave and apply the same statutes of the state and the by-laws of the

to the payment of my indebtedness, includ

ing funeral expenses, and bequests herein society, Bell would have had to name a new

made," and further willed: beneficiary, who under said statute and bylaws could not have been his estate. The "That all the balance of my estate, wheresomember, at all times, in naming his bene-ever located or whatever may be its nature, ficiary must make his selection from among real, personal or mixed, I will and devise in those the statute and charter and by-laws of Mae Etta Polk, Lilly D. Moore and Ruby Sa

equal portions to Julia Perry, Cora Anderson, the society permit to receive the benefit.

penter." Article 4832, Vernon's Sayles' Civil Statutes ; sections 2 and 7, art. 1 (Mutual Aid Depart- The by-law above set out (article 7. $ 1) ment), by-laws; Lodge v. Iselt (Tex. Civ. says the beneficiary named in the will must App.) 37 S. W. 377. The statute (article be a "person” and must belong to the class 4832), and the by-laws of the society (sections designated in the by-laws. It is perfectly 2 and 7, art. 1), prescribing who may be plain that plaintiff in error was not named a beneficiaries, their eligibility must be tested beneficiary in the will. The only way in by these laws. Therefore, if the issuance of which she could receive any of the benefit the second certificate had the effect to can- fund under the will would be for the money cel the first, still if the estate of Bell could to be paid into the estate, and then what, not be made the beneficiary thereunder, the if any, was left after paying the debts, fucertificate stood as if no beneficiary had been neral expenses, and special bequests, to be named. The interest acquired by a member paid to her as a residuary legatee. This is not one payable to himself or for his bene- cannot be done, for to do so would be to igfit. The money to be paid could never go to nore the plain statute of the state (article him or to his estate. Coleman y. Anderson, | 4832) and the by-laws of the society. 98 Tex, 570, 86 S. W. 730.

[5] Furthermore, while a designation of a [4] But plaintiffs in error contend that beneficiary may be made by a member in his even if the designation of his estate as his last will where the constitution and by-laws beneficiary in the second certificate was in- do not prescribe a different method (3 Enc. valid, nevertheless they would be entitled of Law (2d Ed.) 996), the intention to exerto take the benefit fund because Bell, in his cise the power of appointment in this manner will, named his sister, plaintiff in error, must be clearly expressed, and the proceeds Cora Anderson, his residuary legatee, and of the certificate have been held not to pass that that was a sufficient designation of under a mere residuary clause in the will. 3 beneficiary.

Enc. of Law (2d Ed.) 996; Greeno v. Greeno, We do not believe this contention should be 23 Hun, 478. Cooley, in his excellent work, sustained. Article 7, 8 1 (Mutual Aid De- Briefs on the Law of Insurance (volume 1, partment), of the by-laws of the defendant p. 819), says: in error, provides:

“Though it was held in Weil v. Trafford, 3 "It shall be the duty of the board of managers Tenn. Ch. 108, that the naming of a person as to cause to be collected in assessments provided a residuary legatee is a sufficient designation, for in articles III and IV and to cause the total the weight of authority is that a general beamount so collected to be paid to the benefi- quest by residuary clause is not sufficient."

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(248 S.W.) [6] Moreover, it is thought that the provi-, disposition of the benefit fund where an insion in article 7, § 1, of the by-laws of de- eligibie beneficiary has been designated. So fendant in error, supra, wherein it is pro- the fund being payable only to a certain vided that the fund shall be paid to class (article 7, § 1), the by-laws must be

or to such person may be looked to in order to determine to whom the designated by the member in his or her last fund goes, and it must be paid to the bene. will,

is intended to apply, and to ficiaries permitted in the by-laws and in the give the power to designate a beneficiary by order therein named, and as the wife is there will, only where a legal beneficiary has been name first, she would take. appointed as required by the by-laws in the The judgment below being proper under first instance, and said beneficiary has pre- the law and the facts, it is in all things af. deceased the member, and the member has firmed. not made a new designation by procuring the issuance of a new certificate, but permits the old certificate to remain in force, and then directs in his will who shall be his bene. TERRELL et al. v. OTIS ELEVATOR CO. ficiary. In other words, under the language

et al. (No. 6868.) of the by-laws of defendant in error, we do not believe a member can, by designation in (Court of Civil Appeals of Texas. San An

tonio. Jan. 31, 1923. Rehearing bis will, revoke his first certificate and name

Denied Feb. 28, 1923.) a new beneficiary to supplant the one before legally appointed. The by-laws governing 1. Trial 403—Findings and conclusions filed and prescribing the manner of obtaining a

more than 10 days after adjournment for new certificate and naming a new beneficiary

term not considered. are exclusive, and no other method may be

Findings of fact and conclusions of law, employed by the member. Article 4832, for the term, cannot be considered for any pur

filed more than 10 days after court adjourned Vernon's Sayles' Civil Statutes; Flowers v.

pose. W. O. W., 40 Tex. Civ. App. 593, 90 S. W.526; Gray v. W. 0. W., 47 Tex. Civ. App. 609, 106 2. Appeal and error On934(2)-Presumptions

in favor of right action of trial court, in abS. W. 179 (writ denied); Wooden v. Wooden

sence of specific findings. (Tex. Civ. App.) 116 S. W. 629; Phillips v.

In the absence of specific findings of fact, Phillips (Tex. Civ. App.) 226 S. W. 480. [7] However, if the first certificate was tion of the trial court, whose judgment should

the presumptions are in favor of the right aclegally canceled, the second certificate not be affirmed. naming a legal beneficiary, the fund must be

3. Landlord and tenant 152(6)-Landlord paid to the beneficiary named in the by-laws

held liable for repairs to elevators, though (section 2, art. 1, and section 1, art. 7, Mutual

not notified by tenant before contracting for Aid Department), and in the order therein

them. named, which names the wife first, and hence

Where a lease requiring that repairs be she would take. Harris v. Harris, 44 Tex. paid for by the owner was silent as to who Civ, App. 152, 97 S. W. 504; Grand Lodge, should determine the necessity therefor or have Colored Knights of Pythias, v. Mackey (Tex. them done, and as to whether the tenant should Civ. App.) 104 S. W. 906; Appleby v. Grand them, and there was evidence that it was the

give the owner notice before contracting for Lodge, Sons of Herman (Tex. Civ. App.) 225 custom for the tenant to have repairs made S. W. 588. The by-laws of the society (article without consulting the owner, who acquiesced 7, & 1), provides that the insurance money therein by paying the bills without protest, the on the death of a member shall be paid to the latter was liable for necessary repairs to elebeneficiary or beneficiaries named in the vators at a reasonable price, though not conbenefit certificate of a deceased member, or sulted or notified by the tenant before contractto such persons as in the constitution and by. ing for them. laws of the order (ar‘icle 1, $ 2) are designat

Appeal from Bexar County Court; McCol. ed beneficiaries, and in the order named. In

lum Burnett, Special Judge. said by-laws the wife is named first, so that if the issuance of the second certificate could Action by the Otis Elevator Company be held to have revoked the first, the second, against the Peck Furniture Company, which being without any legal beneficiary, would impleaded J. 0. Terrell and others, as exstand as if no beneficiary had been named in ecutors of an estate. From a judgment the first instance, and hence the fund would against the executors, they appeal. Affirmed. go to the person or persons designated as

Terrell, Davis, Huff & McMillan and Josbeneficiaries in the by-laws, and in the order eph Ryan, all of San Antonio, for appellants. therein named, and as the wife is named

Arnold & Cozby, of San Antonio, for apfirst, she would, under the law, take the pellees. benefit. Grand Lodge v. Mackey (Tex. Civ. App.) 104 S. W. 907. Furthermore the by- SMITH, J. The Peck Furniture Company laws do not make any provision as to the conducted a furniture business in a three

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