Suelflow v. Supreme Lodge

Marshall, J. The first question to be considered is whether respondent could properly maintain an action for damages during the lifetime of her husband, even if the contract of insurance were wrongfully canceled, as claimed. If not, then we need not go further and should not, since the assured is not a party to the action. If respondent’s interest in the contract of insurance was absolute — free from control of her husband to take it from — 294 — her without her consent — under sec. 2347, Stats., as the trial court evidently assumed and counsel for respondent contend, and it was wrongfully canceled, the case is ruled in her favor by Merrick v. Northwestern Nat. L. Ins. Co. 124 Wis. 221, 102 N. W. 593. The court there dealt with an ordinary policy of life insurance taken out by a married man for the benefit of his wife, referring to such section as found in the Statutes of 1898, and saying in effect that, subject to the wife deceasing before her husband, the insurance was her sole and separate property free from the control or disposition of her husband, citing Canterbury v. Northwestern Mut. L. Ins. Co. 124 Wis. 169, 102 N. W. 1096. It was upon that ground that the action by the wife, during the lifetime of her husband, for damages for the wrongful cancellation of the insurance was held maintainable. If the interest of the respondent, in the contract of insurance, subject to the contingency of her predeceasing her -husband, was not her sole and separate property, free from his control or disposition, so he was competent to defeat it without her consent by a change of beneficiary, then the case is ruled in favor of appellant by Slocum v. Northwestern Nat. L. Ins. Co. 135 Wis. 288, 115 N. W. 796. The court there dealt with an ordinary policy of life insurance in which a person, other than the wife of the assured, was named as beneficiary, and held, citing Rawson v. Milwaukee Mut. L. Ins. Co. 115 Wis. 641, 92 N. W. 378, that the interest of the beneficiary was a mere expectancy, which was “subject to be defeated' by the act of the insured, and hence cannot be absolute and indefeasible until the death of the insuredthat the “rights and interests.of the beneficiary [were] too hypothetical to be made the ground for damages for a breach of the contract.” In the Rawson Case the court dealt with a benefit certificate and held that, “except so far as the power is limited or taken away by sec. 2347, Stats. 1898, where a married woman — 295 — is the beneficiary” the assured may dispose of the policy in any manner he sees fit “not inconsistent with the terms of the policy, to the exclusion of the beneficiary named therein;” that “the interest of the beneficiary” in a mutual benefit certificate is no “less substantial than the interest of a beneficiary in an ‘old line’ policy, where the assured pays the premiums.” Each (subject to see. 2847, Stats.) “is subject to extinction by the act of the insured, and it may be said as reasonably of one as of the other that it may rightly be considered as a vested interest, subject to the right of the in- ' sured to divest it.” By the foregoing, Foster v. Gile, 50 Wis. 608, 7 N. W. 555, 8 N. W. 217, and other cases, it is the settled law of this state that one who procures a benefit certificate and makes the payments thereon, subject to the terms of the contract and the written law, may change the beneficiary named therein without such beneficiary’s consent. The change, subject to some exceptions mentioned in McGowan v. Supreme Court I. O. F. 104 Wis. 173, 80 N. W. 603, must be made in the manner required by the contract and the rules of the association. Faubel v. Eckhart, 151 Wis. 155, 138 N. W. 615; Preusser v. Supreme Hive L. O. T. M. 123 Wis. 164, 101 N. W. 358; Berg v. Damkoehler, 112 Wis. 587, 88 N. W. 606; Waldum v. Homstad, 119 Wis. 312, 96 N. W. 806, and other cases are to the same effect. We will now consider whether the right of the assured to deal with the benefit certificate in question, without the assent of the beneficiary, is affected by sec. 2347, Stats. The certificate was issued in 1890. Then sec. 2347, S. & B. Ann. Stats., as regards insurance of the life of a person, made payable to a married woman, provided that “every such policy . . . shall inure to her separate use and benefit .. . and in case of her surviving the period or term of such policy,” the amount of the insurance shall be payable to her . . . for her own use and benefit, free from the claims — 296 — of her husband,” etc. By ch: 316/Laws 1891, the section was so changed as to provide that the policy “shall he the sole and separate property of such married woman, and shall inure, to her separate use and benefit . . . and in case of her surviving the period or term of such policy, the amount of the insurance shall be payable to her . . . for her own use and benefit, free from the control, disposition or claims of her husband,” etc. The change, in terms,, was made to “apply to all insurance on lives effected before” the enactment. It was such change which abrogated the judicial rule that a married woman beneficiary in a policy of life insurance has no interest therein during the life of the assured which he cannot take away by making some other person the beneficiary. Ellison v. Straw, 116 Wis. 207, 92 N. W. 1094; Canterbury v. Northwestern Mut. L. Ins. Co. 124 Wis. 169, 102 N. W. 1096. Policies issued prior to the act of 1891 were not. affected thereby, notwithstanding the legislative effort to the contrary. The rights of the husband as to insurance effected before the change were valuable, vested property interests which the legislature could not take away. They were protected by constitutional safeguards, state and national. Boehmer v. Kalk, 155 Wis. 156, 144 N. W. 182; Northwestern Mut. L. Ins. Co. v. Adams, 155 Wis. 335, 144 N. W. 1108. It follows that sec. 2347 did not create any disability of the assured in this case to take away respondent’s interest in the beneficiary certificate without her consent. It does not cut any figure here as the cases referred to clearly indicate. The reasons which render sec. 2347 immaterial apply to sub. 5, sec. 1957, Stats., which provides that “Any member may change the beneficiary named in his certificate or policy without the consent of such beneficiary, by complying with the by-laws of the society, order or association which issued the same.” That seems to have originated in 1895 by sec. 3, — 297 — ah. 175, of the laws of that year. Therefore it cannot be regarded as having changed in any way the rights of the assured to deal with the particular certificate issued in 1890. Now we have seen that the assured was competent to change the beneficiary without her consent. There was no written law to the contrary, and the unwritten law gave him such right, subject to the profusions of the insurance contract and the rules and regulations of the society which issued the certificate. There was no provision on the subject in the certificate, nor, so far as we can discover from the evidence, was the matter dealt with by the constitution, by-laws, or regulations of the society. The constitution provided for payment at maturity of the amount mentioned “to such member or members of the family of said deceased or to a person or persons dependent upon said deceased or related to him or her, as he or she may have directed.” No particular manner of giving directions was mentioned. Of course, the direction in the certificate would govern in the absence of any other. There being no proof that the manner of making a change of beneficiaries was prescribed by the constitution, by-laws, or regulations of the- corporation, it must be presumed that the assured was left to change the beneficiary within the designated class as he saw fit. Opitz v. Karel, 118 Wis. 527, 95 N. W. 948. It is elementary “that where no formalities are required, a change of beneficiaries can be made in any way indicating the intention of the member.” 1 Bacon, Ben. Soc. (3d ed.) § 308a, and cases cited. The text, supported by the authorities, contains this in effect: Where neither the constitution nor by-laws prescribe any formalities for a change of beneficiary, any definite designation of a different beneficiary will suffice. It may be- made by a paper signed by the member, expressing his intention and mailed to the society. “The disposal of the benefits may be made by — 298 — tbe mere direction of tbe insured.” Tbe subject is fully covered in Masonic Ben. Asso. v. Bunch, 109 Mo. 560, 19 S. W. 25. From tbe foregoing it is considered tbat tbe respondent bad no vested interest in tbe certificate wbicb tbe assured could not control. Sbe bad a mere expectancy wbicb could be taken from ber by tbe act of tbe assured at any time during bis life. Therefore tbe doctrine of Merrick v. Northwestern Nat. L. Ins. Co. 124 Wis. 221, 102 N. W. 593, does not apply and tbe case is ruled in favor of appellant by Slocum v. Northwestern Nat. L. Ins. Co. 135 Wis. 288, 115 N. W. 196. Respondent’s right is a mere expectancy wbicb sbe is liable to be deprived of by tbe act of tbe assured at any time. Tbat mere expectancy is of such uncertain value as not to form a basis for any assessment of damages. Thus tbe difficulty in this case disappears when it is appreciated tbat tbe policy of insurance in tbe Merrick Case was issued after sec. 2347, R. S. 1878, was amended by tbe act of 1891, disabling tbe assured in such cases from depriving a married woman beneficiary of ber interest in an insurance policy without ber consent, unless provided otherwise therein. Christman v. Christman, 163 Wis. 433, 157 N. W. 1099. Tbe result is tbat respondent bad no right to maintain this action. By the Gourt. — Tbe judgment is reversed, and tbe cause remanded with directions to dismiss tbe complaint with costs.