Brown v. Ancient Order, U. W. 208 Pa. 101, 57 Atl. 176; Olmstead v. Masonic Mut. Ben. Soc. 37 Kan. 93, 14 Pac. 449; Union Cent. L. Ins. Co. v. Buxer, 62 Ohio St. 385, 49 L.R.A. 737, 57 N. E. 66; 3 Am. & Eng. Enc. Law, 2d ed. 980; Washington L. Ins. Co. v. Berwald, 1 Ann. Cas. 682, and note, 97 Tex. 111, 76 S. W. 442; Wallace v. Mutual Ben. L. Ins. Co. 97 Minn. 27, 3 L.R.A. (N.S.) 478, 106 N. W. 84. The words "Fannie E. Filley" qualify "his wife," and dominate the action of the parties to the contract; the word "wife" standing before the words "Fannie E. Filley" is intended to identify her from other "Fannie E. Filleys," and not to imply a condition that she must remain his wife. Bullock v. Zilley, 1 N. J. Eq. 489; White v. Brotherhood of American Yeomen, 124 Iowa, 293, 66 L.R.A. 164, 104 Am. St. Rep. 323, 99 N. W. 1071, 2 Ann. Cas. 350; 25 Cyc. 889; Re Eaton, 23 Ont. Rep. 593; Day v. Case, 43 Hun, 179, 5 N. Y. S. R. 397; Lavender v. Rosenheim, 110 Md. 150, 132 Am. St. Rep. 420, 72 Atl. 669; Wallace v. Mutual Ben. L. Ins. Co. 97 Minn. 27, 3 L.R.A. (N.S.) 478, 106 N. W. 84; Courtois v. Grand Lodge, A. O. U. W. 135 Cal. 552, 87 Am. St. Rep. 137, 67 Pac. 970; Brown v. Ancient Order, U. W. 208 Pa. 101, 57 Atl. 176; Grego v. Grego, 78 Miss. 443, 28 So. 817; Overbeck v. Overbeck, 155 Pa. 5, 25 Atl. 646; Prudential Ins. Co. v. Morris, N. J. Eq. 70 Atl. 924; Brogi v. Brogi, 211 Mass. 512, 98 N. E. 573; Overhiser v. Overhiser, 14 Colo. App. 1, 59 Pac. 75; Overhiser v. Overhiser (Overhiser v. Mutual L. Ins. Co.) 63 Ohio St. 77, 50 L.R.A. 552, 81 Am. St. Rep. 612, 57 N. E. 965; Hardy v. Smith, 136 Mass. 328; Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; Re Jones, 69 L.R.A. 942, note III. When the designation of the beneficiary is valid at the date of the contract or policy, the beneficiary then named obtains a vested interest which cannot be devested or disturbed by subsequent legislation. Wist v. Grand Lodge, A. O. U. W. 22 Or. 271, 29 Am. St. Rep. 603, 29 Pac. 610; Nelson v. Gibson, 92 Ill. App. 595; Grand Lodge, A. O. U. W. v. Stumpf, 24 Tex. Civ. App. 309, 58 S. W. 840; 4 Cooley, Briefs on Ins. p. 3723. There is no doubt that Fannie E. Filley was the wife of Clarence E. Filley at the time the policy was issued. She had an insurable interest in his life then, as his wife and the mother of his children. hiser v. Mutual L. Ins. Co.) 63 Ohio St. 77, 50 L.R.A. 553, 81 Am. St. Rep. 612, 57 N. E. 965, 7 Ohio N. P. 527, 5 Ohio S. & C. P. Dec. 561; Blum v. New York L. Ins. Co. 197 Mo. 513, 8 L.R.A. (N.S.) 923, 95 S. W. 317, 7 Ann. Cas. 1021; Grego v. Grego, 78 Miss. 443, 28 So. 817; McGrew v. Mutual L. Ins. Co. 132 Cal. 85, 84 Am. St. Rep. 20, 64 Pac. 103; Overhiser v. Overhiser, 14 Colo. App. 1, 59 Pac. 75; Courtois v. Grand Lodge, A. O. U. W. 135 Cal. 552, 87 Am. St. Rep. 137, 67 Pac. 970; Schmidt V. Hauer, 139 Iowa, 531, 111 N. W. 966; Phoenix Mut. L. Ins. Co. v. Dunham, 46 Conn. 79, 33 Am. Rep. 14; White v. Brotherhood of American Yeomen, 124 Iowa, 293, 66 L.R.A. 164, 104 Am. St. Rep. 323, 99 N. W. 1071, 2 Ann. Cas. 350; Lavender v. Rosenheim, 110 Md. 150, 132 Am. St. Rep. 420, 72 Atl. 669. Where an insurable interest is required, it is sufficient that it exist when the policy is taken out, and it need not continue throughout the life of the policy. Connecticut Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457, 24 L. ed. 251; 1 Bacon, Ben. Soc. 3d ed. p. 573; Dolan v. Supreme Council, C. M. B. A. 16 L.R.A. (N.S.) 555, and note, 152 Mich. 266, 116 N. W. 383; Rupp v. Western Life Indemnity Co. 138 Ky. 18, 29 L.R.A. (N.S.) 675, 127 S. W. 490. Smith, J., delivered the opinion of the court: This case was tried upon an agreed statement of facts, in addition to the facts admitted in the pleadings, signed by the attorneys for each party. It reads: "It is admitted by the plaintiff, through and by her attorneys, and the defendant Fannie E. Filley, by and through her attorneys, that this cause may be submitted to the court upon the following agreed statement of facts and the copy of the policy attached to plaintiff's petition, and upon the pleadings: That at the time of the issuance of the policy herein sued on, to wit, on or about the 7th day of June, 1883, the said Clarence E. Filley, upon whose life said policy was issued, was then and at that time lawfully married to Fannie E. Filley, the defendant herein, and the said Fannie E. Filley, defendant herein, was at that time the lawful wife of the said Clarence E. Filley. It is further admitted that on or about the 12th day of June, 1900, the said Fannie E. Filley, defendant herein, sought and obtained a divorce from her then husband, Clarence E. Filley, the insured named in said policy, sued on in this action, the said policy being a part of this agreed statement of facts; and that in said decree certain property was prayed for, and set apart and decreed to Fannie Bacon, Ben. Soc. § 253; Bliss, Life Ins. § 30, p. 41; 1 May, Ins. 4th ed. § 1076; Connecticut Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457, 24 L. ed. 251; Wallace v. Mutual Ben. L. Ins. Co. 97 Minn. 27, 3 L.R.A. (N.S.) 478, 106 N. W. 84; Overhiser v. Overhiser (Over-E. Filley, the defendant; and that said Fannie E. Filley, defendant herein, is not claiming any right, title, or interest in said policy by virtue of said decree. That on or about the 20th day of March, 1901, the said Clarence E. Filley was married to the plaintiff herein, Mary Filley. And the said Mary Filley, plaintiff herein, was the wife of said Clarence E. Filley at the time of the death of Clarence E. Filley, the insured in said policy. The annual premiums upon said policy were paid annually by the said Clarence E. Filley, up until the time of his death, on the 24th day of August, 1910." about nine months after the divorce, the insured married the appellant, who remained his wife until the time of his death, over nine years thereafter. No claim is made by appellee by reason of any provision for her in the decree of divorce. The appellant contends that the benefit was payable to the status, the person who sustained the relation of wife to Clarence E. Filley at the time of his death. The first ground for this contention is the language of the certificate or policy. It is said that, where two nouns indicate one person, the second serves to identify the first rather than the first to identify the second. We see no force in this contention. On the other hand, the appellee, Fannie E. Filley, contends, and we think in ac The determining question of law involved is whether, under these facts, Fannie E. Filley, who as the wife of the insured was made the beneficiary, is entitled to recover from the insurance company, she having been divorced before the death of the in-cordance with the authorities, that the cirsured; or whether Mary Filley, whom the cumstances and relations of the parties at insured married after the divorce from the time the contract for insurance was Fannie, and who was the wife of the in- made should determine, if the terms of the sured at the time of his death, is entitled contract are indefinite or uncertain, the to recover. Mary Filley, in the name of purpose and intent of the insured. He had Mrs. Clarence E. Filley, brought this ac- the right to designate any person or pertion, and Fannie E. Filley answered setting sons he chose as beneficiaries within the up her claims. The insurance company, restrictions of the rules of the company, defendant, having assumed the obligation and, where the writing does not clearly inof the Kansas Mutual Life Association, dicate the purpose of the insured, the mowhich issued the policy sued on, admitted tives which actuate people generally will its liability and paid the amount of the be presumed to have actuated him. It may claim into court, and, upon the order of be said, without hesitation, that a man, the court, it was dismissed from the ac- with or without children, does not ordition. The court rendered judgment in fa-narily prefer his wife's relatives in prefvor of Fannie E. Filley, and Mary Filleyerence to his own in the descent or approappeals, and assigns as error: First, that the court erred in rendering judgment for the appellee; second, in overruling the motion for a new trial; third, in not rendering judgment for the appellant. The death benefit in the policy recited, in substance, that upon the receipt of satisfactory proof of the death of Clarence E. Filley, the insured, "he having conformed to all the conditions hereof, this association will pay to his wife, Fannie E. Filley, or to her legal representatives, the net proceeds of one full assessment to an amount not to exceed $3,000." Also, "that should the said Clarence E. Filley live to the age of sixty-four years, and then choose to surrender this policy, this association will pay to said Clarence E. Filley the amount he has paid into the treasury on account of death and expectation indemnity assessments (less the 10 cents, cost of collection), with 4 per cent interest upon such payments... " Epitomizing the agreed facts, the appellee Fannie E. Filley, was the wife of the insured over seven years from the time of the issuance of the policy when she secured a divorce, and in the way of alimony was apportioned a part of his property; that, priation of his estate or of any interest in property which he controls. It is said in appellee's briefs that the insured and Fannie E. Filley had children, but there is no evidence of this in the agreed statement of facts. Whichever of the contending claimants was designated in the policy as the primary beneficiary, "her legal representatives" were clearly the alternative or secondary beneficiaries. If the motives which usually actuate men lead to the presumption that the secondary beneficiaries contemplated were related to him more nearly than his other relatives, the heirs of the primary beneficiary were probably his heirs. So far as shown, the insured was at the time of the issuance of the policy living amicably with his then wife, and under such circumstances, in purchasing such a contract, a man ordinarily makes provision for the relations then existing, for the support and benefit of his then wife and their children, if any they have or are reasonably to be expected. It will not be presumed that the insured contemplated a divorce from his then wife, and in purchasing a policy of insurance was intending to make provision for another wife. Yet it seems clear, if the policy be con strued as designating the appellant as the | strument in this case is designated as a beneficiary, that the words, "or her legal policy, and not as a certificate, and has representatives," must also mean the legal representatives of the appellant. It also seems improbable that the insured could have contemplated a benefit to one succeeding his then wife, at the time of securing the contract of insurance; much less then that he contemplated a possible benefit to the second wife's heirs or legal representatives. In 17 Am. & Eng. Enc. Law, 2d ed. 21, 23, it is said: "In interpreting a writing, the court, in order to determine its meaning, will consider all the facts and circumstances attending its execution. Among the circumstances so considered, are the relations of the parties, the nature and situation of the subject-matter, and the apparent purpose of making the instrument or contract in question. . It is but another statement of the same rule to say, as is frequently done, that the court will, if necessary, put itself in the place of the parties and read the instrument in the light of the circumstances surrounding them at the time it was made, and of the objects which they evidently had in view." This is a well-recognized rule. Viewing the situation as of the time the policy was written, we conclude that the object of the insured was to protect his then wife, if she should survive him, his children by her, if any they had or might have. There is nothing to indicate that he contemplated a divorce from his then wife, which occurred seven years thereafter, or that he was contemplating any protection to anyone who might thereafter become his wife and maintain that relation at the uncertain time of his death. The appellant cites the case of Missouri Valley L. Ins. Co. v. Sturges, 18 Kan. 93, 26 Am. Rep. 761. In that case Sturges was the assignee of a policy of insurance on the life of a man in the continuance of which he had no interest whatever, and a benefit to him was not at all contemplated by the insured or the company at the time of the issuance of the policy. The case of Hatch v. Hatch, 35 Tex. Civ. App. 373, 80 S. W. 411, is more closely analogous to this case; but in that case the wife was not named in the policy when it] was procured. The intention of the insured to benefit her thereby seems to be negatived, inasmuch as some other person was made the beneficiary, and the wife procured the policy by assignment, and she thereafter obtained a divorce from her husband, the insured. The citation from 3 American & English Encyclopedia of Law, 2d ed. 943, relates only to mutual benefit certificates. The in more resemblance to an old line policy of insurance than to a mutual benefit certificate. At any rate, under the authorities, the question of appellee's right to receive the benefit depends largely on whether her rights vested at the time of the issuance of the policy, or could only vest upon the death of the insured. In support of the contention of the appellant, several fraternal insurance cases are cited, among which are Order of R. Conductors v. Koster, 55 Mo. App. 186, and Tyler v. Odd Fellows' Mut. Relief Asso. 145 Mass. 134, 13 N. E. 360. In this class of cases it seems to be the general rule that no interest vests in the beneficiary until the death of the insured; while in the old line insurance cases the interest of the beneficiary is said to vest at the time of the execution of the policy. The provisions of this policy are more like the provisions of old line life insurance policies than fraternal certificates. In this class of insurance policies we believe it is generally held that, when a married woman is named as a beneficiary in a policy of insurance on the life of her husband, she is entitled to the proceeds of the policy notwithstanding a divorce has been obtained by her before his death. Overhiser v. Overhiser, 14 Colo. App. 1, 59 Pac. 75; Prudential Ins. Co. v. Morris N. J. Eq. 70 Atl. 924; Overhiser v. Overhiser, (Overhiser v. Mutual L. Ins. Co.) 63 Ohio St. 77, 50 L.R.A. 552, 81 Am. St. Rep. 612, 57 N. E. 965; Overbeck v. Overbeek, 155 Pa. 5, 25 Atl. 646; White v. Brotherhood of American Yeomen, 124 Iowa, 293, 66 L.R.A. 164, 104 Am. St. Rep. 323, 99 N. W. 1071, 2 Ann. Cas. 350; Brown v. Ancient Order, U. W. 208 Pa. 101, 57 Atl. 176; Courtois v. Grand Lodge, A. O. U. W. 135 Cal. 552, 87 Am. St. Rep. 137, 67 Pac. 970; Wallace v. Mutual Ben. L. Ins. Co. 97 Minn. 27, 3 L.R.A. (N.S.) 478, 106 N. W. 84. The judgment is affirmed. A petition for rehearing having been granted, Smith, J., on July 7, 1914, handed down the following additional opinion (93 Kan. 193, 144 Pac. 257): The former opinion in this case is found in 91 Kan. 220, ante, 137 Pac. 793. On the reargument the appellant vigorously objects to the following statements in the original opinion: "The instrument in this case has more resemblance to an old line policy of insurance than to a mutual benefit certificate. "While in the old line insurance cases the interest of the beneficiary is said to vest at the time of the execution of the Company presented a proposition to the policy. "The provisions of this policy are more like the provisions of old line life insurance policies than fraternal certificates." It is also contended that the case of Johnson v. Grand Lodge, A. O. U. W. 91 Kan. 314, 50 L.R.A. (N.S.) 461, 137 Pac. 1190, is controlling in this case. In that case the policy or certificate was issued by a "fraternal beneficiary association," defined by § 4303 of the General Statutes of 1909 as follows: "A fraternal beneficiary association is hereby declared to be such a corporation, society or voluntary association of individuals, formed or organized into a lodge system with ritualistic form of work, or composed of members of an order or society having a lodge system with a ritualistic form of work, or of such members, their wives, widows, or daughters, as shall make provision for the payment of benefits in case of death, sickness, or temporary or permanent disability, and shall be carried on for the sole benefit of its members and their beneficiaries, and not for profit." The distinction between the two policies is fairly made in the Johnson Case, supra, as follows: "The right of a divorced wife to recover upon a policy of insurance naming her as the beneficiary" is upheld in the case of Filley v. Illinois L. Ins. Co., "the distinction between that case and this resting wholly upon the statute which controls in the case of beneficiary associations, and which has no force or effect upon ordinary life insurance policies." Practically the only difference between the policy in question and the ordinary life insurance policy is that the Kansas Mutual Life Association, which issued the policy, derived the money to meet its debt demands by what is denominated "annual dues" of $4, which the holder of each policy agreed to pay to the association on the 1st of January of each year, and an admission fee of $16, instead of collecting annual premiums. The association agreed to pay on policies only the gross amount collected for socalled dues, less 10 cents for collection, and retained to itself as profits any excess over the amount of the insurance which might be collected from the policy holders. The policy in question was issued in 1883, and there seems to have been no statute of the state at that time authorizing or defining fraternal beneficiary associations. The defendant is an old line life insurance company organized for profit, as was also the Kansas Mutual Life Association organized for profit, but not to the policy holders or members of the association. It appears by the exhibit attached to the policy that the Illinois Life Insurance trustees of the Kansas Mutual Life Association to assume and reinsure the policies of the Kansas company, and that such proposition was duly accepted by unanimous vote of the policy holders, and the Illinois company was subrogated to all the rights, liabilities, and obligations of the Kansas company on the policy in question, and agreed to assume and carry out the provisions of the policy as in such proposition provided. It thereby appears that the Illinois company acquired the rights of the Kansas company as well as its liabilities. The policy holders, of course, could not transfer the rights of the company, so it is apparent that there was a tripartite agreement, the consideration for which does not appear, nor whether the Kansas company received a profit in the transfer. It is a general rule that one may take out a policy on his own life for the benefit of any person he may choose to designate, in the absence of a statute or of a provision in the constitution or by-laws of fraternal association to the contrary, and statutory provisions of this character are held prospective, and not retrospective, in their operation. 1 Cooley, Briefs on Ins. pp. 796-798. Any provision of our statute subsequent to the issuance of the policy is therefore not applicable to this case. United States v. American Sugar Ref. Co. 202 U. S. 503, 50 L. ed. 1149, 26 Sup. Ct. Rep. 717; Winfree v. Northern P. R. Co. 227 U. S. 296, 57 L. ed. 518, 33 Sup. Ct. Rep. 273; Union P. R. Co. v. Laramie Stockyards Co. 231 U. S. 190, 58 L. ed. 179, 34 Sup. Ct. Rep. 101. The fact that the Kansas company collected annual dues instead of premiums did not make it a beneficiary society. State v. Moore, 38 Ohio St. 7. An "old line life insurance company" is generally a corporation which insures any applicant who passes the medical examination and otherwise can meet the rules of the company, and the insured does not thereby become a member of the company. Yet, as in this case, the consent of the policy holder would be necessary to substitute another corporation in place of the insurer, and to relieve the insurer from liability. On the other hand, the individual member of a strictly mutual life insurance associa tion or fraternal benefit association is at once an insurer as to his fellow members, and, in turn, is insured by them. None but members of the association are insured. The Kansas Mutual Life Association was not such an association. We adhere to the statement in the former opinion that "the provisions of this policy are more like the provisions of old line life insurance poli· cies than fraternal certificates." 91 Kan. | character of the company and the terms 225. It is contended that Fannie E. Filley had no vested interest in the policy of insurance for the reason that, if the insured lived to the age of sixty-four years, he had the option of receiving the cash benefit of the policy to himself, and thus devesting any interest of Fannie E. Filley therein. This constituted a condition subsequent, and not a condition precedent. The general rule seems to be that the person designated as the beneficiary in a life insurance policy is entitled to the benefit, and neither the insured nor the insurer can change it to the detriment of the beneficiary. Van Bibber v. Van Bibber, 82 Ky. 350. We think the right to the benefit provided in this policy vested immediately in Fannie E. Filley, subject only to the right of the insured as provided therein. Her right was subject to a defeasance, but was a substantial vested right until the defeasance should occur, and it never did occur. The insured could defeat the beneficiary's rights under the policy only as provided therein. Continental L. Ins. Co. v. Palmer, 42 Conn. 60, 19 Am. Rep. 530; Voss v. Connecticut Mut. L. Ins. Co. 119 Mich. 161, 44 L.R.A. 689, 77 N. W. 697. On reconsideration we are assured of the correctness of the former decision, and it is adhered to. The judgment is reaffirmed. A second petition for rehearing having been filed, West, J., on November 14, 1914, handed down the following response: In view of the literature on file in this case, especially the somewhat emphatic petition for a second rehearing, it has been determined to re-examine the questions presented by the record, and the writer has been assigned the task of formulating the result. It is mutually conceded and asserted that an ordinary old line policy vests a personal interest in the beneficiary; hence no authorities need be cited in support of that proposition. Of course, such vested interest arises from the contract, and the corollary follows that the obligations of such contract cannot be impaired by subsequent legislation or by the unauthorized act of the insured. It must also be conceded that the certificate of an ordinary mutual benefit society is subject to whatever changes are permitted by its charter or by-laws or by statutes existing when the certificate is issued. Both parties have argued the case on the theory that the right of Fannie E. Filley depends largely on the question whether the of its policy require the application of the old line rule or the benefit society rule, and it is vehemently asserted that the policy in question can by no logical possibility be deemed old line in nature or by resemblance. All we have to enlighten us on this point is the policy itself and the statute in force when it was issued; neither the charter nor the by-laws, if any, being in evidence. The act of 1898 as amended in 1899 (Gen. Stat. 1909, § 4303) cannot apply for the reason already indicated. Whether a policy or certificate be issued by an old line or by a mutual benefit company, the question of a vested interest thereby passing must be determined, not by the name of the company, nor even by its general character, but by the nature of the contract, which must be held to include the statutes in existence applicable thereto, the same as if written in, and all the by-laws and regulations by which those who deal with the company are bound. Block v. Valley Mut. Ins. Asso. 52 Ark. 201, 20 Am. St. Rep. 167, 12 S. W. 477; United States Casualty Co. v. Kacer, 169 Mo. 301, 58 L.R.A. 436, 92 Am. St. Rep. 641, 69 S. W. 370. When this policy was issued in 1883, the general insurance act of 1871 as amended was then in force. Gen. Stat. 1889, §§ 3316 et seq. Section 3402 provided that the act should not apply to life insurance companies organized on the co-operative plan, which provision was held to apply to the Bankers' & Merchants Benefit Association in State v. Bankers' & M. Mut. Ben. Asso. 23 Kan. 499. In State v. Vigilant Ins. Co. 30 Kan. 585, 2 Pac. 840, 842, it was held that the Vigilant Insurance Company, though formed to afford mutual protection and indemnity to its members in case of loss by death and theft of certain private personal property, was an insurance company, and as such covered by the insurance law; but it was said: "As to life insurance companies organized on the co-operative plan, they are expressly exempted from the provisions of that act." p. 588. Ordinary life insurance companies were prohibited from doing business unless upon an actual capital of at least $100,000. We find no other statute then in force directly affecting the policy or the question involved. Being relegated therefore to the policy itself, we observe that it recites that, in consideration of the representations and agreements made in the application, the payment of an admission fee of $16, the payment of a sum not exceeding $4, annually on the 1st day of January, and the prompt payment of such benefit assessment as may legally be levied by the directors, the association issues such policy to Clarence E. Filley, with certain agreements. |