Farr v. Trustees of the Grand Lodge of the Ancient Order of United Workmen

Orton, J. On the 28th day of March, 1879, A. C. Peck became a member of the subordinate Banner Lodge No. 17, at the city of Eau Claire, by virtue of a certificate of insurance duly issued by the Grand Lodge of the Ancient Order of United Workmen of the State of Wisconsin to the said A. C. Peck, by which said grand lodge promised and agreed, for a valuable consideration, to pay at the death of said A. C. Peck, according to the laws of the order, the sum of $2,000 to Ida B. Peck, the wife, and to Anna May Peck, the daughter, of said A. C. Peck (since intermarried with the coplaintiff J. F. Farr). On or about the 8th day of March, 1881, the said Ida B. Peck died. After her death the said A. C. Peck intermarried with the defendant Mary E. Peck, by whom he had one child, now living; and on the 1st day of March, 1891, the said A. C. Peck died. The defendant the grand lodge paid to the plaintiff Anna May Farr one half of said $2,000 on her giving bond, but refused, on demand, to pay her the other half of it; and — 451 — she now demands the $2,000 by right of survivorship, on the death of her mother, as a joint tenant or joint beneficiary of the insurance. This being the controlling question in the case, no other need be considered. It will be observed that the whole insurance of $2,000 is made payable to both Ida B. and Anna May Peck as an entirety. Since the death of Ida B., the grand lodge has so changed and amended its constitution and laws that the whole insurance in such a case shall go and be paid to the surviving beneficiary. It is claimed by the learned counsel of the appellants that such amendment has the legal effect to control the direction of this insurance. Although it is not necessary to consider that question, it may be said that the grand lodge has at least approved in this way the policy of such a principle of law. The learned circuit court, after finding the facts, found as a conclusion of law that upon the death of Ida B. Peck before the death of the insured the appointment of her as a beneficiary became and was revoked, and the interest in the fund she would have been entitled to receive if she had survived the insured lapsed and reverted to the estate of A. 0. Peck at his death, no other direction having been made by him. Judgment was entered dismissing the plaintiff’s action with costs, without prejudice to the right of the administrator of the estate of Alderson C. Peck to recover the amount remaining unpaid of such insurance. The learned counsel on both sides have presented unusually able briefs on the important questions involved in this case, and the court is greatly aided by their cogent arguments and the authorities cited in deciding the question upon which the case depends. The question whether this benefit insurance is made payable to the wife and daughter as an entirety or in severalty as tenants in common or as joint tenants is somewhat difficult of solution. • It must be determined by its analogy to the terms “ tenancy in com — 452 — mon” and “joint tenancy” in respect to realty and at common law. They may be said to have the same nature and incidents. There may be joint tenancy of personalties, and, like the properties of a joint estate, they are derived from its unity, which is fourfold,— of interest, title, time, and possession. Each of the joint tenants must have the entire possession as well of every parcel as of the whole. Where a horse is given to two persons, they a.re joint tenants. Martin v. Smith, 5 Bin. 16, 6 Am. Dec. 395. “A joint tenancy is where they have the same interest, arising from the same conveyance, commencing at the same time, and held by one and the same undivided possession. On the death of one, the entire tenancy remains to the surviving cotenants, and not to the heirs of the deceased.” 2 Bl. Comm. 180. This insurance, payable to two persons, has all the essential characteristics of a joint tenancy, without any words or reasons appearing to indicate an intention to make it payable in severalty, or to have it go to heirs, or to revert to the assured or to his estate, on the death of one of the beneficiaries. The assured lived about ten years after the death of his wife,— one of the beneficiaries,— and made no change in the direction as to whom the insurance should go to, but in the mean time procured another insurance of $5,000 for the benefit of his second wife, Mary E. Peck, his present widow. He must be presumed to have known the law, and that his daughter was entitled to the whole insurance on the death of his wife, and assented to such a construction of the policy. In a majority of the old states thq jus oGorescmdi or right of survivorship in such a case has been abolished by statute without any exceptions. Most of the cases at common law relate to estates and devises. The unity of possession is the essential feature, so that, if an estate has been conveyed in parcenary and one of the tenants seeks to destroy the unity by a conveyance of his interest, it is a question whether such a deed is — 453 — not a nullity. White v. Sayre, 2 Ohio, 302. “ Where an estate is given to several persons jointly, without any expressions indicating an intention that it shall be divided among them, it must be construed a joint tenancy.” Martin v. Smith, 5 Bin. 16. “ When by the terms of a will there is an estate in joint tenancy’ at common law, and one or more of the tenants die in the lifetime of the testator, the principle of the common law applies, and the survivor takes the whole estate.” Ball v. Deas, 2 Strob. Eq. 24. Such is the law in all cases of devise or bequest. Downing v. Marshall, 23 N. Y. 366. This is sufficient to show the' strictness of the doctrine at common law, especially as to devises. This leads us to the consideration of our own statute on the subject of joint tenants. Our statute (sec.-2068, E. S.) provides that “ all grants and devises of lands made to two or more persons, except as provided in the following section, shall be construed to create estates in common, .and not in joint tenancy, unless expressly declared to be in joint tenancy.” The following section is that “ the preceding section shall not apply to mortgages, nor to devises or grants made in trust, or made to executors or to husband and wife.” It will be seen that our statute makes many important exceptions, which save the doctrine of the common law in respect to the subjects named. This shows at least that there is nothing in our principles of government or policies of law opposed to the principle or doctrine of survivorship in joint tenancjr in such cases. We are more immediately concerned with joint tenancy in devises. On the principle of analogy, if devises to joint tenants with the jus aeerescendi are lawful, so are legacies of personalties. They are substantially alike, and within the same reason, and they have been decided to be within the doctrine of the common law. Jackson v. Roberts, 14 — 454 — Gray, 546; Stires v. Van Renssalaer, 2 Bradf. Sur. 172; 2 Redf. Wills, 175. We may say, therefore, that legacies come within the exceptions of our statute, and that, when made to two joint legatees, without any words to indicate a severance of their interests, if one die, the survivor takes the whole legacy. The analogy between legacies and the benefits secured by a certificate or policy of a benefit insurance company or of a common life insurance company, when the insurance is payable to two or more persons jointly on the death of the assured, is still closer. The assured, like a testator, makes provision in writing for his wife and children, to be enjoyed on his death. He can change the direction of his bounty during his life. So far as the doctrine of joint tenancy and survivorship are concerned, they are strictly within the same reason. And so it has been held in respect tó life insurance, if made for the benefit of a wife and children, the last survivor takes the whole. Robinson v. Duvall, 79 Ky. 83. And so as to a fire insurance policy made to two persons jointly. Northrup v. Phillips, 99 Ill. 449. The same doctrine is held in respect to benefit insurance similar to that of this case. Day v. Case, 43 Hun, 179; Covenant M. B. Asso. v. Hoffman, 110 Ill. 603. See, also, Bac. Ben. Soc. § 264. And so we conclude that this insurance in joint tenancy with the right of survivorship is within the exception of our own statute, in analogy to devises, and that the doctrine of the common law governs it. This is a new question in this state, but we are satisfied that the application of this doctrine to this case is within reason and the authorities. We are not called upon to vindicate the policy of this doctrine, any more than to vindicate the exceptions of our own statute. This being decisive of the case, no other question will be considered. The question of interest, we think, was properly disposed of -by the circuit court. There was no un — 455 — reasonable delay of payment, as found by the court, and there is no fund to meet any such demand. The costs will go with the reversal of the judgment. By the Court.— The judgment of the circuit court is reversed, and.the cause is remanded with directions to render judgment in favor of the plaintiffs in accordance with, this opinion.