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Brown v. Ancient Order, U. W. 208 Pa. 101, hiser v. Mutual L. Ins. Co.) 63 Ohio St. 77, 57 Atl. 176; Olmstead v. Masonic Mut. Ben. 50 L.R.A. 553, 81 Am. St. Rep. 612, 57 N. Soc. 37 Kan. 93, 14 Pac. 449; Union Cent. E. 965, 7 Ohio N. P. 527, 5 Ohio S. & C. L. Ins. Co. v. Buxer, 62 Ohio St. 385, 49 P. Dec. 561; Blum v. New York L. Ins. Co. L.R.A. 737, 57 N. E. 66; 3 Am. & Eng. Enc. 197 Mo. 513, 8 L.R.A.(N.S.) 923, 95 S. W. Law, 2d ed. 980; Washington L. Ins. Co. 317, 7 Ann. Cas. 1021; Grego v. Grego, 78 v. Berwald, 1 Ann. Cas. 682, and note, 97 Miss. 443, 28 So. 817; McGrew v. Mutual Tex. 111, 76 S. W. 442; Wallace v. Mutual L. Ins. Co. 132 Cal. 85, 84 Am. St. Rep. Ben. L. Ins. Co. 97 Minn. 27, 3 L.R.A. (N.S.) | 20, 64 Pac. 103; Overhiser v. Overhiser, 14 478, 106 N. W. 84.

Colo. App. 1, 59 Pac. 75; Courtois v. Grand The words “Fannie E. Filley” qualify Lodge, A. 0. U. W. 135 Cal. 552, 87 Am. "his wife," and dominate the action of the St. Rep. 137, 67 Pac. 970; Schmidt v. parties to the contract; the word "wife" Hauer, 139 lowa, 531, 111 N. W. 966; standing before the words "Fannie E. Fil- Phønix Mut. L. Ins. Co. v. Dunham, 46 ley” is intended to identify her from other Conn. 79, 33 Am. Rep. 14; White v. Brother"Fannie E. Filleys," and not to imply a con- hood of American Yeomen, 124 Iowa, 293, dition that she must remain his wife. 66 L.R.A. 164, 104 Am. St. Rep. 323, 99

Bullock v. Zilley, 1 N. J. Eq. 489; White N. W. 1071, 2 Ann. Cas. 350; Lavender v. v. Brotherhood of American Yeomen, 124 Rosenheim, 110 Md. 150, 132 Am. St. Rep. Iowa, 293, 66 L.R.A. 164, 104 Am. St. Rep. 420, 72 Atl. 669. 323, 99 N. W. 1071, 2 Ann. Cas. 350; 25 Where an insurable interest is required, Cyc. 889; Re Eaton, 23 Ont. Rep. 593; Day it is sufficient that it exist when the policy v. Case, 43 Hun, 179, 5 N. Y. S. R. 397; is taken out, and it need not continue Lavender v. Rosenheim, 110 Md. 150, 132 throughout the life of the policy. Am. St. Rep. 420, 72 Atl. 669; Wallace v. Connecticut Mut. L. Ins. Co. v. Schaefer, Mutual Ben. L. Ins. Co. 97 Minn. 27, 394 U. S. 457, 24 L. ed. 251; 1 Bacon, Ben. L.R.A.(N.S.) 478, 106 N. W. 84; Courtois Soc. 3d ed. p. 573; Dolan v. Supreme Counv. Grand Lodge, A. 0. U. W. 135 Cal. 552, cil, C. M. B. A. 16 L.R.A.(N.S.) 555, and 87 Am. St. Rep. 137, 67 Pac. 970; Brown note, 152 Mich. 266, 116 N. W. 383; Rupp v. Ancient Order, U. W. 208 Pa. 101, 57 v. Western Life Indemnity Co. 138 Ky. 18, Atl. 176; Grego v. Grego, 78 Miss. 443, 28 29 L.R.A.(N.S.) 675, 127 S. W. 490. So. 817; Overbeck v. Overbeck, 155 Pa. 5, 25 Atl. 646; Prudential Ins. Co. v. Morris, Smith, J., delivered the opinion of the

N. J. Eq. 70 Atl. 924; Brogi v. court: Brogi, 211 Mass. 512, 98 N. E. 573; Over- This case was tried upon an agreed statehiser v. Overhiser, 14 Colo. App. 1, 59 ment of facts, in addition to the facts adPac. 75; Overhiser v. Overhiser (Overhiser mitted in the pleadings, signed by the v. Mutual L. Ins. Co.) 63 Ohio St. 77, 50 attorneys for each party. It reads: "It is ad. L.R.A. 552, 81 Am. St. Rep. 612, 57 N. E. mitted by the plaintiff, through and by her 965; Hardy v. Smith, 136 Mass. 328; attorneys, and the defendant Fannie E. FilCharlton v. Miller, 27 Ohio St. 298, 22 Am. ley, by and through her attorneys, that this Rep. 307; Re Jones, 69 L.R.A. 942, note III. cause may be submitted to the court upon

When the designation of the beneficiary the following agreed statement of facts and is valid at the date of the contract or pol. the copy of the policy attached to plaintiff's icy, the beneficiary then named obtains a petition, and upon the pleadings: That at vested interest which cannot be devested or the time of the issuance of the policy herein disturbed by subsequent legislation. sued on, to wit, on or about the 7th day

Wist v. Grand Lodge, A. 0. U. W. 22 of June, 1883, the said Clarence E. Filley, Or. 271, 29 Am. St. Rep. 603, 29 Pac. 610; upon whose life said policy was issued, was Nelson v. Gibson, 92 Ill. App. 595; Grand then and at that time lawfully married to Lodge, A. 0. U. W. v. Stumpf, 24 Tex. Civ. Fannie E. Filley, the defendant herein, and App. 309, 58 S. W. 840; 4 Cooley, Briefs the said Fannie E. Filley, defendant herein, on Ins. p. 3723.

was at that time the lawful wife of the said There is no doubt that Fannie E. Filley Clarence E. Filley. It is further admitted was the wife of Clarence E. Filley at the that on or about the 12th day of June, time the policy was issued. She had an in- 1900, the said Fannie E. Filley, defendant surable interest in his life then, as his wife herein, sought and obtained a divorce from and the mother of his children.

her then husband, Clarence E. Filley, the Bacon, Ben. Soc. § 253; Bliss, Life Ins. insured named in said policy, sued on in $ 30, p. 41; May, Ins. 4th ed. $ 1076; Con- this action, the said policy being a part of necticut Mut. L. Ins. Co. v. Schaefer, 94 U. this agreed statement of facts; and that in S. 457, 24 L. ed. 251; Wallace v. Mutual Ben. said decree certain property was prayed L. Ins. Co. 97 Minn. 27, 3 L.R.A. (N.S.) 478, for, and set apart and decreed to Fannie 106 N. W. 84; Overhiser v. Overhiser (Over- 'E. Filley, the defendant; and that said Fannie E. Filley, defendant herein, is not j about nine months after the divorce, the claiming any right, title, or interest in said insured married the appellant, who repolicy by virtue of said decree. That on or mained his wife until the time of his death, about the 20th day of March, 1901, the said over nine years thereafter. No claim is Clarence E. Filley was married to the plain-made by appellee by reason of any provitiff herein, Mary Filley. And the said sion for her in the decree of divorce. Mary Filley, plaintiff herein, was the wife The appellant contends that the benefit of said Clarence E. Filley at the time of was payable to the status, the person who the death of Clarence E. Filley, the insured sustained the relation of wife to Clarence in said policy. The annual premiums upon E. Filley at the time of his death. The said policy were paid annually by the said first ground for this contention is the lanClarence E. Filley, up until the time of his guage of the certificate or policy. It is death, on the 24th day of August, 1910.” said that, where two nouns indicate one

The determining question of law involved person, the second serves to identify the is whether, under these facts, Fannie E. first rather than the first to identify the Filley, who as the wife of the insured was second. We see no force in this contention. made the beneficiary, is entitled to recover On the other hand, the appellee, Fannie from the insurance company, she having E. Filley, contends, and we think in acbeen 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 Filley | erence to his own in the descent or approappeals, and assigns as error: First, that priation of his estate or of any interest in the court erred in rendering judgment for property which he controls. It is said in the appellee; second, in overruling the mo- appellee's briefs that the insured and Fantion for a new trial; third, in not rendering nie E. Filley had children, but there is no judgment for the appellant.

evidence of this in the agreed statement of The death benefit in the policy recited, in facts. Whichever of the contending claimsubstance, that upon the receipt of satis- ants was designated in the policy as the factory proof of the death of Clarence E. primary beneficiary, "her legal representaFilley, the insured, "he having conformed to tives” were clearly the alternative or seconall the conditions hereof, this association dary beneficiaries. If the motives which will pay to his wife, Fannie E. Filley, or usually actuate men lead to the presumpto her legal representatives, the net pro- tion that the secondary beneficiaries conceeds of one full assessment

to an templated were related to him more nearly amount not to exceed $3,000.” Also, “that than his other relatives, the heirs of the should the said Clarence E. Filley live to primary beneficiary were probably his heirs. the age of sixty-four years, and then choose So far as shown, the insured was at the to surrender this policy, this association time of the issuance of the policy living will pay to said Clarence E. Filley the amicably with his then wife, and under amount he has paid into the treasury on such circumstances, in purchasing such a account of death and expectation indemnity contract, a man ordinarily makes provision assessments (less the 10 cents, cost of col for the relations then existing, for the suplection), with 4 per cent interest upon such port and benefit of his then wife and their payments ...."

children, if any they have or are reasonably Epitomizing the agreed facts, the appel- to be expected. It will not be presumed lee Fannie E. Filley, was the wife of the that the insured contemplated a divorce insured over seven years from the time of from his then wife, and in purchasing a the issuance of the policy when she secured | policy of insurance was intending to make a divorce, and in the way of alimony was provision for another wife. apportioned a part of his property; that, Yet it seems clear, if the policy be construed 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 more resemblance to an old line policy of representatives of the appellant. It also insurance than to a mutual benefit certiseems improbable that the insured could ficate. At any rate, under the authorities, have contemplated a benefit to one succeed the question of appellee's right to receive ing his then wife, at the time of securing the benefit depends largely on whether her the contract of insurance; much less then rights vested at the time of the issuance of that he contemplated a possible benefit to the policy, or could only vest upon the the second wife's heirs or legal representa death of the insured. In support of the tives,

contention of the appellant, several fraIn 17 Am. & Eng. Enc. Law, 2d ed. 21, ternal insurance cases are cited, among 23, it is said: "In interpreting a writing, which are Order of R. Conductors v. Koster, the court, in order to determine its mean- 55 Mo. App. 186, and Tyler v. Odd Fellows' ing, will consider all the facts and circum- Mut. Relief Asso. 145 Mass. 134, 13 N. E. stances attending its execution. Among the 360. In this class of cases it seems to be circumstances so considered, are the rela the general rule that no interest vests in tions of the parties, the nature and situa- the beneficiary until the death of the in. tion of the subject matter, and the apparent sured; while in the old line insurance cases purpose of making the instrument or con- the interest of the beneficiary is said to tract in question. ... It is but another vest at the time of the execution of the statement of the same rule to say, as is policy. frequently done, that the court will, if nec- The provisions of this policy are more essary, put itself in the place of the parties like the provisions of old line life insurance and read the instrument in the light of the policies than fraternal certificates. In this circumstances surrounding them at the class of insurance policies we believe it is time it was made, and of the objects which generally held that, when a married woman they evidently had in view."

is named as a beneficiary in a policy of This is a well-recognized rule. Viewing insurance on the life of her husband, she the situation as of the time the policy was is entitled to the proceeds of the policy notwritten, we conclude that the object of the withstanding a divorce has been obtained insured was to protect his then wife, if she by her before his death. Overhiser v. Overshould survive him, his children by her, if hiser, 14 Colo. App. 1, 59 Pac. 75; Prudenany they had or might have. There is noth- tial Ins. Co. v. Morris

N. J. Eq.

70 ing to indicate that he contemplated a di- Atl. 924; Overhiser v. Overhiser, (Overvorce from his then wife, which occurred hiser v. Mutual L. Ins. Co.) 63 Ohio St. 77, seven years thereafter, or that lie was con- 50 L.R.A. 552, 81 Am. St. Rep. 612, 57 N. templating any protection to anyone who E. 965; Overbeck v. Overbeck, 155 Pa. 5, might thereafter become his wife and main- 25 Atl. 646; White v. Brotherhood of Amertain that relation at the uncertain time of ican Yeomen, 124 Iowa, 293, 66 L.R.A. 164, his death.

104 Am. St. Rep. 323, 99 N. W. 1071, 2 The appellant cites the case of Missouri Ann. Cas. 350; Brown v. Ancient Order, U. Valley L. Ins. Co. v. Sturges, 18 Kan. 93, W. 208 Pa. 101, 57 Atl. 176; Courtois v. 26 Am. Rep. 761. In that case Sturges Grand Lodge, A. 0. U. W. 135 Cal. 552, 87 was the assignee of a policy of insurance on Am. St. Rep. 137, 67 Pac. 970; Wallace v. the life of a man in the continuance of Mutual Ben. L. Ins. Co. 97 Minn. 27, 3 which he had no interest whatever, and a L.R.A. (N.S.) 478, 106 N. W. 84. benefit to him was not at all contemplated The judgment is affirmed. by the insured or the company at the time of the issuance of the policy.

A petition for rehearing having been The case of Hatch v. Hatch, 35 Tex. Civ. granted, Smith, J., on July 7, 1914, handApp. 373, 80 S. W. 411, is more closely an ed down the following additional opinion alogous to this case; but in that case the ! (93 Kan. 193, 144 Pac. 257): wife was not named in the policy when it The former opinion in this case is found was procured. The intention of the insured in 91 Kan. 220, ante, 137 Pac. 793. On the to benefit her thereby seems to be negatived, reargument the appellant vigorously obinasmuch as some other person was made jeets to the following statements in the the beneficiary, and the wife procured the original opinion: policy by assignment, and she thereafter "The instrument in this case obtained a divorce from her husband, the has more resemblance to an old line policy insured.

of insurance than to a mutual benefit cerThe citation from 3 American & English tificate. Encyclopedia of Law, 2d ed. 943, relates “While in the old line insurance cases only to mutual benefit certificates. The in-' the interest of the beneficiary is said to vest at the time of the execution of the Company presented a proposition to the policy.

trustees of the Kansas Mutual Life Associ“The provisions of this policy are more ation to assume and reinsure the policies of like the provisions of old line life insurance the Kansas company, and that such propopolicies than fraternal certificates.”

sition was duly accepted by unanimous vote It is also contended that the case of John- of the policy holders, and the Illinois comson v. Grand Lodge, A. 0. U. W. 91 Kan. pany was subrogated to all the rights, li314, 50 L.R.A.(N.S.) 461, 137 Pac. 1190, is abilities, and obligations of the Kansas controlling in this case. In that case the company on the policy in question, and policy or certificate was issued by a "fra- agreed to assume and carry out the proviternal beneficiary association," defined by sions of the policy as in such proposition § 4303 of the General Statutes of 1909 as provided. It thereby appears that the Illifollows: "A fraternal beneficiary associa- nois company acquired the rights of the tion is hereby declared to be such a cor- Kansas company as well as its liabilities. poration, society or voluntary association The policy holders, of course, could not of individuals, formed or organized into a transfer the rights of the company, so it is lodge system with ritualistic form of work, apparent that there was a tripartite agreeor composed of members of an order or ment, the consideration for which does not society having a lodge system with a rit- appear, nor whether the Kansas company ualistic form of work, or of such members, received a profit in the transfer. their wives, widows, or daughters, as shall It is a general rule that one may take make provision for the payment of benefits out a policy on his own life for the benefit in case of death, sickness, or temporary or of any person be may choose to designate, permanent disability, and shall be carried in the absence of a statute or of a proon for the sole benefit of its members and vision in the constitution or by-laws of fratheir beneficiaries, and not for profit." ternal association to the contrary, and

The distinction between the two policies statutory provisions of this character are is fairly made in the Johnson Case, supra, held prospective, and not retrospective, in as follows: “The right of a divorced wife their operation. 1 Cooley, Briefs on Ins. pp.. to recover upon a policy of insurance nam- 796-798. ing her as the beneficiary" is upheld in the Any provision of our statute subsequent case of Filley v. Illinois L. Ins. Co., "the to the issuance of the policy is therefore distinction between that case and this rest- not applicable to this case. United States ing wholly upon the statute ... which | v. American Sugar Ref. Co. 202 U. S. 563, controls in the case of beneficiary associa- 50 L. ed. 1149, 26 Sup. Ct. Rep. 717; Wintions, and which has no force or effect upon free v. Northern P. R. Co. 227 U. S. 296, ordinary life insurance policies."

57 L. ed. 518, 33 Sup. Ct. Rep. 273; Union Practically the only difference between P. R. Co. v. Laramie Stockyards Co. 231 U. the policy in question and the ordinary life S. 190, 58 L. ed. 179, 34 Sup. Ct. Rep. 101. insurance policy is that the Kansas Mutual The fact that the Kansas company colLife Association, which issued the policy, lected annual dues instead of premiums derived the money to meet its debt demands did not make it a beneficiary society. State by what is denominated "annual dues" of v. Moore, 38 Ohio St. 7. $4, which the holder of each policy agreed An "old line life insurance company" is to pay to the association on the 1st of Jan- generally a corporation which insures any uary of each year, and an admission fee of applicant who passes the medical examina$16, instead of collecting annual premiums. tion and otherwise can meet the rules of The association agreed to pay on policies the company, and the insured does not only the gross amount collected for $o- thereby become a member of the company. called dues, less 10 cents for collection, and Yet, as in this case, the consent of the poliretained to itself as profits any excess over cy holder would be necessary to substitute the amount of the insurance which might another corporation in place of the insurer, be collected from the policy holders. The and to relieve the insurer from liability. policy in question was issued in 1883, and On the other hand, the individual member there seems to have been no statute of the of a strictly mutual life insurance associastate at that time authorizing or defining tion or fraternal benefit association is at fraternal beneficiary associations.

once an insurer as to his fellow members, The defendant is an old line life insurand, in turn, is insured by them. None ance company organized for profit, as was but members of the association are insured. also the Kansas Mutual Life Association The Kansas Mutual Life Association was organized for profit, but not to the policy not such an association. We adhere to the holders or members of the association. statement in the former opinion that "the

It appears by the exhibit attached to the provisions of this policy are more like the policy that the Illinois Life Insurance provisions of old line life insurance poli.. cies than fraternal certificates.” 91 Kan. , character of the company and the terms 225.

of its policy require the application of the It is contended that Fannie E. Filley had old line rule or the benefit society rule, and no vested interest in the policy of insurance it is vehemently asserted that the policy in for the reason that, if the insured lived to question can by no logical possibility be the age of sixty-four years, he had the op- deemed old line in nature or by resemblance. tion of receiving the cash benefit of the All we have to enlighten us on this point policy to himself, and thus devesting any is the policy itself and the statute in force interest of Fannie E. Filley therein. This when it was issued; neither the charter nor constituted a condition subsequent, and not the by-laws, if any, being in evidence. The a condition precedent. The general rule act of 1898 as amended in 1899 (Gen. Stat. seems to be that the person designated as 1909, § 4303) cannot apply for the reason the beneficiary in a life insurance policy already indicated. Whether a policy or is entitled to the benefit, and neither the certificate be issued by an old line or by a insured nor the insurer can change it to the mutual benefit company, the question of a detriment of the beneficiary. Van Bibber vested interest thereby passing must be dev. Van Bibber, 82 Ky. 350.

termined, not by the name of the company, We think the right to the benefit provided nor even by its general character, but by in this policy vested immediately in Fannie the nature of the contract, which must be E. Filley, subject only to the right of the held to include the statutes in existence apinsured as provided therein. Her right plicable thereto, the same as if written in, was subject to a defeasance, but was a sub- and all the by-laws and regulations by stantial vested right until the defeasance which those who deal with the company are should occur, and it never did occur. The bound. Block v. Valley Mut. Ins. Asso. 52 insured could defeat the beneficiary's rights Ark. 201, 20 Am. St. Rep. 167, 12 S. W. under the policy only as provided therein. 477; United States Casualty Co. v. Kacer, Continental L. Ins. Co. v. Palmer, 42 Conn. 169 Mo. 301, 58 L.R.A. 436, 92 Am. St. Rep. 60, 19 Am. Rep. 530; Voss v. Connecticut 641, 69 S. W. 370. When this policy was Mut. L. Ins. Co. 119 Mich. 161, 44 L.R.A. issued in 1883, the general insurance act of 689, 77 N. W. 697.

1871 as amended was then in force. Gen. On reconsideration we are assured of the Stat. 1889, $$ 3316 et seq. Section 3402 correctness of the former decision, and it provided that the act should not apply to is adhered to.

life insurance companies organized on the The judgment is reaffirmed.

co-operative plan, which provision was held

to apply to the Bankers' & Merchants BeneA second petition for rehearing having fit Association in State v. Bankers' & M. been filed, West, J., on November 14, 1914, Mut. Ben. Asso. 23 Kan. 499. In State v. handed down the following response:

Vigilant Ins. Co. 30 Kan. 585, 2 Pac. 840, In view of the literature on file in this 842, it was held that the Vigilant Insurance case, especially the somewhat emphatic pe Company, though formed to afford mutual tition for a second rehearing, it has been protection and indemnity to its members in determined to re-examine the questions case of loss by death and theft of certain presented by the record, and the writer has private personal property, was an insurance been assigned the task of formulating the company, and as such covered by the insurresult.

ance law; but it was said: “As to life inIt is mutually conceded and asserted that surance companies organized on the co-opan ordinary old line policy vests a personal erative plan, they are expressly exempted interest in the beneficiary; hence no au- from the provisions of that act.” p. 588. thorities need be cited in support of that Ordinary life insurance companies were proposition. Of course, such vested inter- prohibited from doing business unless upon est arises from the contract, and the corol- an actual capital of at least $100,000. We lary follows that the obligations of such find no other statute then in force directly contract cannot be impaired by subsequent affecting the policy or the question inlegislation or by the unauthorized act of volved. Being relegated therefore to the the insured.

policy itself, we observe that it recites that, It must also be conceded that the certi in consideration of the representations and ficate of an ordinary mutual benefit socie- agreements made in the application, the ty is subject to whatever changes are per- payment of an admission fee of $16, the mitted by its charter or by-laws or by payment of a sum not exceeding $4, annustatutes existing when the certificate is is ally on the 1st day of January, and the sued.

prompt payment of such benefit assessment Both parties have argued the case on the as may legally be levied by the directors, theory that the right of Fannie E. Filley the association issues such policy to Clardepends largely on the question whether the ence E. Filley, with certain agreements.

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