Given v. Wisconsin Odd Fellows' Mutual Life Insurance

Lyon, J. The defendant company concedes its liability to pay the insurance on the life of Simeon S. Given, and that the complaint sufficiently shows such liability, but claims that the same is payable to the legal representative of the deceased Sarah Given, and not to the plaintiff. Whether it is so payable is the only question raised by the demurrer to the complaint. The question was very fully and ably argued by the respective counsel, and numerous authorities bearing upon it were cited and discussed by them. We find it unnecessary to consider these authorities at length, for the reason that the question has already been decided by this court in Foster v. Gile, 50 Wis. 603. In that case a policy of insurance had been issued by the Penn Mutual Insurance Company of Pennsylvania on the life of one Walter H. Ballou, and by the terms of the [551] policy the insurance money was payable to the two children of the insured, named therein, in equal shares, and to “ their guardians, executors, administrators, or assigns.” Both beneficiaries died before their father. Ballou died without making any change in the beneficiaries named in the policy. The contest was between the administrator of the insured and the administrator of the beneficiaries. It was held that the administrator of the beneficiaries was entitled to the insurance money, on the sole ground that the same was made payable, not only to them, but to “ their guardians, executors, administrators, or assigns.” The rule there laid down is that, unless the policy points out to whom the insurance money shall be paid in case the beneficiary die before the insured, the appointment of the beneficiary is revoked by his death. It was so held in analogy to the rules relating to lapsed legacies. Had the words “their guardians, executors, administrators, or assigns,” or equivalent words, been omitted from the clause of the policy naming the beneficiaries, the judgment would have been that the administrator of the insured was entitled to the money. The question was very carefully and fully considered in that case; and although there was some difference of opinion between the members of the court, the judgment must be taken as a settlement of the question in this state until the rule is changed by competent authority. In the case of Ballou v. Gile, 50 Wis. 614, there were no words of inheritance or transmission in the appointment of a beneficiary, and hence the case might as well have been decided upon the rule of Foster v. Gile. Probably it would have been but for the difference in the opinions of the justices in the latter case. Ballou v. Gile was a case of insurance in a benevolent company, under whose rules the money was payable only to those dependent upon the insured. If no such persons survived the insured, the insurance lapsed, and the liability of the company therefore ceased. So the [552] judgment in that case went upon the restricted liability of the insurer, because we could all concur in placing it upon that ground. See note to this case by J. E. Berryman in 37 Am. Law Beg. 374,377.— Our attention was called by counsel to sec. 2347, R. S., as sustaining the contention of the company. It is not probable that the section was intended to affect an insurance by a purely benevolent association upon the life of a member for the benefit of those dependent upon him. In such case it would seem that the beneficiaries appointed by the charter or by-laws of the association would be entitled to the insurance money, even, though the insured member may have attempted to appoint a different beneficiary. But, however this may be, we do not think the statute (were it here applicable) would take this case out of the rule of Foster v. Gile. Certainly it would not, unless it vested in the original beneficiary, Sarah Given, .the absolute right to the insurance money ^s her separate property or estate. That a statute which, in principle, was like sec. 2317, did not work such a result, was held by this court in Kerman v. Howard, 23 Wis. 108. Applying the rule of Foster v. Gile to the present case, the death of the wife, Sarah Given, during the life of the insured, abrogated the direction that the insurance money be paid to her, and left it to be paid to the person entitled thereto under the rules and by-laws of the company. That person is the widow of the insured, the plaintiff in this action. It follows that the complaint states a cause of action in her favor, and hence that the demurrer thereto should have been overruled. By the Court.— The order sustaining the demurrer is reversed, and the cause will be remanded with directions to the circuit court to overrule the demurrer.