(248 S.W.)

The by-laws of the society are incorporated in and made a part of the contract of insurance. Section 2 of article 1 (Mutual Aid Department) of these by-laws provides:

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 independent executor of the estate of J. B. Bell, duly qualified and acting, and being fully empowered to bind said legatees of said Bell provided for in his will, this defendant order paid to the said V. Nora A. Bell the full sum of $500 on the certificate issued by it to her, this being the full and largest amount that could be paid by this defendant order to a beneficiary of any one member, and this defendant says that the certificate declared on in this cause was unauthorized and could not legally have been issued in the first instance, and second, that under all the facts and circumstances in this case, by reason of said independent executor conceding that said certificate was void and surrendering same back to the defendant, with the statement that they would not further prosecute any claim thereunder, that this defendant paid to the wife and widow of said J. B. Bell, as aforestated, said sum of $500, which said amount would not have been paid but for the statement and actions of said independent executar, and that by reason of the said statements and actions to this defendant that the plaintiff herein, claiming under the will of said Bell, as alleged by them, which also appointed and designated them independent executors, that they be estopped from asserting any claim whatever to said policy, and that neither have they shown in themselves any right to prosecute this suit for it shows that the said J. B. Bell left independent executors of his estate with full power to sue for and do any and all things necessary to be done, and these plaintiffs have no right whatever to further prosecute this suit, and this defendant here now prays the court, first, that on a final trial hereof, if the above demurrers are overruled, that it have judgment that the plaintiff take nothing by reason of this suit, and that it may go hence without day and recover all costs."

The case was tried before the court without a jury, and judgment rendered for defendant in error, to which plaintiffs in error excepted, and from which they have appealed. The trial court held "that as a matter of law Bell, in attempting to make a change of beneficiary, did not comply with the laws of the order," and for that reason the attempted change was not, as a matter of law, of any force or effect, and plaintiffs in error, in their first assignment of error and proposition thereunder, challenge this holding, contending that—

"When a member of a fraternal beneficial society, desiring to effect a change of beneficiary, makes application for such change of beneficiary in the manner and form required by the regulations of such society, and the society, through its regularly and properly authorized officers, accepts such application, and thereupon issues to such member its new beneficial certificate, wherein is recorded by the society a

"The object of this department shall be to combine male and female persons of sound bodily health, exemplary habits and good moral character, into a secret fraternal, beneficiary and benevolent order; provide funds for their relief; comfort the sick and cheer the unfortunate by attentive ministrations in times of sorrow and distress; promote fraternal love and unity; create a fund from which, on reasonable and satisfactory proof of death of a member who has complied with all the requirements of the order, there shall be paid to the person or persons named in the member's certificate of membership (which is here termed benefit certificate), as beneficiary or beneficiaries, such sum or sums of money as may be ascertained by the board of managers, under the provisions of article III, section 2, of these laws. The beneficiary or beneficiaries (except as stated in sections 3 to 8, inclusive of this article), shall be the wife, the husband, children and their descendants (adopted child or children), father or mother or brother (persons dependent upon a member for support), brothers, sisters and the children of the deceased brothers and deceased sisters. The name or names of the beneficiary or beneficiaries shall be written in every benefit certificate. However, these laws are subject to the statutory laws enacted by the Legislature of Texas."

Section 6, art. 1, provides:

"Sec. 6. A husband separated from his wife, but not divorced, may designate some one or more persons other than his wife, his beneficiary; provided, the beneficiary so designated to the exclusion of the wife shall be the child or children, if such there be. If there be no child or children, and he be aged or infirm, he may designate as his beneficiary the person or persons with whom he may reside or upon whom he may depend for support; should he be not aged or infirm, he will only be permitted to name as beneficiary, other than his wife, the beneficiaries named in section 2 of this article, and in the order therein named."

Section 7, art. 1, provides:

"Sec. 7. Where the wife is named beneficiary in the benefit certificate issued to the husband, and the wife shall thereafter abandon the husband, or the wife being in sound bodily health shall fail or neglect to care for or minister to the husband or the husband and family, and thereby the husband shall desire to designate another and different person as beneficiary, to the exclusion of the wife, he may do so by filing with the grand secretary his affidavit, accompanied by the affidavit of at least two credible witnesses, stating the fact of his being abandoned by his wife or of her failure

to make such institution his beneficiary. Within the above restrictions each member shall have the right to designate his beneficiary, and from time to time have the same changed in accordance with the laws, rules or regulations of the society, and no beneficiary shall have or obtain any vested interest in the said benefit until the same has become due and payable upon the death of the said member; provided, that any society may, by its laws, limit the scope of beneficiaries within the above classes." Bell's application for a new certificate with change of beneficiary is as follows:

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 the surrender to him of the certificate so issued, with the husband's request indorsed thereon, and stating the names of the new beneficiaries, who may be his children; if there be no child or children, and he be aged or infirm, the person or persons with whom he may reside, or upon whom he may depend for support, or the beneficiaries, other than his wife, named in section 2 of this article, and in the order therein named, and the payment of twenty-five 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. A record of the surrender and cancellation of said certificate and the issuance of one in lieu

of same shall be made on the books of the board of this department."

Section 8, art. 1, provides:

"Section 8. If under the facts and circumstances 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 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."

"Application for Change of Policy.

Lodge No. 18 of the city of Houston, county of "No. 1. I, J. B. Bell, a member of Solomon Harris, in the state of Texas, holding benefit

certificate No.

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 Houston, Texas, this 27th day of July, A. D. 1917. [Signed] J. F. Hardeway, Notary Public, Harris County."

"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.

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 afutes, is as follows:

"Beneficiaries.-The payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree, father-in-law, 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

fiant in lieu of the one above described. It is the purpose of this affidavit to avoid the making of said United Brothers of Friendship liable under two separate policies on the life of this affiant.

"[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 wishes to receive a new certificate, naming his estate as a beneficiary, and thus procures S. M. T. of Texas, Houston, Texas." the issuance of a new certificate purporting to cancel the first one and naming his estate as his beneficiary, in violation of article 4832, R. S., supra, which requires a change in beneficiary must be made in compliance with the laws, rules, and regulations of the society; and in violation of all the rules of the society, and in no wise complying with the by-laws regulating the issuance of a new certificate and the changing of his beneficiary. This he could not do in the manner attempted. The only restriction upon the power of the member to change his beneficiary at will is such as is found in the statutes 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

[1, 2] Plaintiffs in error's proposition, supra, is based upon the contention that the member “makes application for such change in the manner and form required by the regulations of such society." It is seen that the application falls far short of complying with the by-laws. The only provisions for a husband changing his beneficiary, when the certificate 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 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 do so by filing with the grand secretary his affidavit, accompanied by the affidavits of at least two credible witnesses, stating the fact of his being abandoned by his wife, or of her failure to care for or minister to him or to him and his family, whereupon, if the grand secretary is satisfied with such proof, upon the surrender to him of the certificate so issued, with the husband's request indorsed thereon, and stating the names of the new beneficiaries, a new certificate may be issued to him.

tween the member and the society. The change must be made in the manner designated in such provisions, or it is void. Therefore we hold that Bell's right to revoke his former designation of beneficiary was governed by the statute and by-laws, and in doing so they must be complied with, and as they prescribed the regulations to be observed in making a change of beneficiary, and designated the persons who could be named as new beneficiaries, his right to name a new beneficiary 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. O. name or names of the new beneficiaries shall be written.

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 v. 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.

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

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

"The question occurs as to the effect on the rights of the beneficiaries first designated by an attempted change of beneficiary which is incomplete, or where the change being effected by compliance with the required formalities and 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

(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- eligible 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 as 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 benewill, 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 first instance, and said beneficiary has predeceased the member, and the member has 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 beneficiary. In other words, under the language 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

his will, revoke his first certificate and name a new beneficiary to supplant the one before legally appointed. The by-laws governing and prescribing the manner of obtaining a new certificate and naming a new beneficiary are exclusive, and no other method may be employed by the member. Article 4832, Vernon's Sayles' Civil Statutes; Flowers v. W. O. W., 40 Tex. Civ. App. 593, 90 S. W. 526; Gray v. W. O. W., 47 Tex. Civ. App. 609, 106 S. W. 179 (writ denied); Wooden v. Wooden (Tex. Civ. App.) 116 S. W. 629; Phillips v. Phillips (Tex. Civ. App.) 226 S. W. 480.

[7] However, if the first certificate was legally canceled, the second certificate not naming a legal beneficiary, the fund must be paid to the beneficiary named in the by-laws (section 2, art. 1, and section 1, art. 7, Mutual Aid Department), and in the order therein named, which names the wife first, and hence she would take. Harris v. Harris, 44 Tex. Civ. App. 152, 97 S. W. 504; Grand Lodge, Colored Knights of Pythias, v. Mackey (Tex. Civ. App.) 104 S. W. 906; Appleby v. Grand Lodge, Sons of Herman (Tex. Civ. App.) 225 S. W. 588. The by-laws of the society (article 7, 1), provides that the insurance money on the death of a member shall be paid to the beneficiary or beneficiaries named in the benefit certificate of a deceased member, or to such persons as in the constitution and by. laws of the order (article 1, § 2) are designated beneficiaries, and in the order named. said by-laws the wife is named first, so that

In

The judgment below being proper under the law and the facts, it is in all things af firmed.

TERRELL et al. v. OTIS ELEVATOR CO. et al. (No. 6868.)

tonio. Jan. 31, 1923. Rehearing
Denied Feb. 28, 1923.)

1. Trial 403-Findings and conclusions filed
more than 10 days after adjournment for
term not considered.

Findings of fact and conclusions of law, filed more than 10 days after court adjourned for the term, cannot be considered for any purpose.

2. Appeal and error 934 (2)—Presumptions in favor of right action of trial court, in absence of specific findings.

In the absence of specific findings of fact, the presumptions are in favor of the right action of the trial court, whose judgment should

be affirmed.

held liable for repairs to elevators, though not notified by tenant before contracting for them.

Where a lease requiring that repairs be paid for by the owner was silent as to who should determine the necessity therefor or have them done, and as to whether the tenant should give the owner notice before contracting for them, and there was evidence that it was the custom for the tenant to have repairs made without consulting the owner, who acquiesced therein by paying the bills without protest, the latter was liable for necessary repairs to elevators at a reasonable price, though not consulted or notified by the tenant before contracting for them.

Appeal from Bexar County Court; McCollum Burnett, Special Judge.

Action by the Otis Elevator Company against the Peck Furniture Company, which impleaded J. O. Terrell and others, as exFrom a judgment ecutors of an estate. against the executors, they appeal. Affirmed. Terrell, Davis, Huff & McMillan and Joseph Ryan, all of San Antonio, for appellants. Arnold & Cozby, of San Antonio, for appellees.

if the issuance of the second certificate could be held to have revoked the first, the second, being without any legal beneficiary, would stand as if no beneficiary had been named in the first instance, and hence the fund would go to the person or persons designated as beneficiaries in the by-laws, and in the order therein named, and as the wife is named first, she would, under the law, take the 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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