Mosaic Templars of America v. Mills

POSTER, J. This is an action by appellees against appellant, a fraternal benefit society, on a certificate or policy of insurance on the life of Carrie Mills. The trial was had upon the second count in the complaint and a plea of the general issue. This count was substantially in the form prescribed by the Code, and was not subject to the demurrer interposed. Code 1907, vol. 2, p. 1196, form 12. Carrie Mills became a member of the Society in 1919, and was in good standing at the time' of her death, July 21, 1921. A benefit certificate was issued to her which contained the provisions that if she should continue in good standing until death the relative within the fourth degree— “to whom this policy may be willed or assigned, shall be paid a sum not to exceed three hundred dollars * * * ninety days after filing complete death proof. * * * I also agree to read this policy through and through and abide by every law printed thereon. * * * The Mosaic Templars of America agree at the death of said insured to pay to the person or persons mentioned in the will made by the insured during their lifetime, etc.” On page 2 of the policy are the following provisions: “Members holding policies in this order and dying without making disposition of the same by will or assignment .will not under any consideration be paid; and said will or assignment must be in their own writing, or mark thereof, attested by the Scribe of their Temple, Chamber or Palace, and must be sent to the National Grand Scribe on final proof of death.” And; “Unless will is signed by deceased and willed to some one, together with being witnessed by two disinterested parties, value of the policy will not be paid.” Then there appears in the policy in evidence the following: “I,-, do hereby will and assign the benefits of this policy to: Names of Beneficiaries. Age. City. Mr. Madison Mills...................... 35 Husband Carrie Mills............................. 6 Daughter Duretha Mills........................... i Daughter. “Whatever may be due on this policy. “Witness: - [Signed] —-—. (Name of Member.) “This-day of-, 192 — .” Proofs of death were made in compliance with the laws of the society, and together with the policy were mailed to the National Grand Scribe about a week after the death of insured. Law No. 7, section 2, of the bylaws of the society provides that if any member dies without designating “in their own writing .or mark thereof” attested by the worthy scribe of their temple to whom the benefit shall he payable, the benefits provided in the policy will not be paid “under any conditions or circumstances.” Provision is made in the by-law.s for establishment of a monument fund. Law No. 46 reads: “No subordinate body or any of its officers shall have the power or authority to waive any of the provisions of the laws and constitution, and the same shall be binding upon the assoda-' tion and each member thereof and their beneficiaries.” Willie Watson, the worthy scribe of the local temple, testified that she received the policy of the insured, Carrie Mills, and that the blank will or assignment was not then filled, that Carrie Mills could not write and requested witness to “fill out,” and “I filled it out at her request, and as I wrote the names she touched the pen, at a regular meeting in the hall.” The witness testified also that she wrote the insured’s name at her request, as also the names of the beneficiaries and that insured touched the pen. In designating the beneficiaries the member must comply with the rules prescribed by the society. 29 Cyc. 118. The bylaws of the society required the member to designate the beneficiary by signing in her own writing or by mark, and, where this is required, writing the names in the required blank, although she touched the pen while the worthy scribe was, at the member’s request, writing the names of the beneficiaries, is not a sufficient designation without the signature of the member in her own writing or by mark. 29 Cyc. 118, note 54. The definition of “signature” or “subscription” as given by the first section of Code 1907 “includes mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.” Under these statutory provisions, and as required by the laws of the defendant society, an “assignment,” as that word is used in the policy of life insurance shed on, is signed by one who [401] is unable to write his name only when Me has made his mark near his name subscribed for him, and this making of his mark has been witnessed by a person who can and does write his own name as a witness. Without this attesting witness who writes his own name as a witness, and without the name or mark of the insured, subscribed to the “assignment,” there was no valid execution thereof. Code 1907, § 1, p. 217; Mash v. Daniel, 105 Ala. 398, 18 So. 8; Johnson v. Davis, 95 Ala. 293, 10 So. 911; Houston v. State, 114 Ala. 15, 21 So. 813. The failure of the member to sign the will or assignment in her own writing or by mark is fatal to the right of the plaintiffs to recover. The payment of the funeral expenses and the erection of a monument was not a waiver by the Grand Officers of the defect in the assignment or designation of beneficiaries. The society was required by the contract to pay funeral expenses and erect a monument, and this part of the contract had no bearing upon the rights of the beneficiaries. Retaining the proofs of death and the policy for three months after the time for payment under the facts in this case cannot be held to be a waiver, as the society was authorized to retain same in view of its admitted liability for and payment of the funeral expenses and the erection of a monument. It will serve no useful purpose to discuss the other questions presented, as under no phase of the evidence can the plaintiffs recover. The court erred in giving the general charge for the plaintiffs, and in refusing the general charge for the defendant. The judgment is reversed and the cause remanded. Reversed and remanded.