Malancy v. Malancy

Siebecker, J. There is no dispute concerning the issuing of the certificates upon the decedent’s application to the society, that they became effective under its regulations, and that the proceeds thereof were properly paid into the court. The question presented is: Has the plaintiff any claim to the proceeds under the second certificate issued to the deceased in which she was named the sole beneficiary? It is contended that she acquired a special vested interest in this certificate for a valuable consideration and hence a right to the proceeds thereof, of which she cannot be deprived without her consent as against the defendant who is named the sole beneficiary in the certificate last issued to deceased. The friends of the plaintiff’s husband who raised the fund to defray his expenses to send him to Colorado refused to give him the fund until he caused his wife to be made the sole beneficiary of this fraternal insurance. Sub. 5, sec. 1957, Stats., provides, “Any member” of a fraternal benefit society,’ order, or association “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.” The by-laws of the society provide that any agreement entered into by a member not to change the beneficiary shall be 645 null and void. The provisions of such by-laws and the statutes become part of the terms and conditions of a benefit certificate of fraternal societies. Ormond v. McKinley, 163 Wis. 205, 157 N. W. 786; Thomas v. Covert, 126 Wis. 593, 105 N. W. 922. It is well established that the beneficiary under such a certificate does not acquire absolute and indefeasible rights until the death of a member. Rawson v. Milwaukee Mut. L. Ins. Co. 115 Wis. 641, 92 N. W. 378; Ormond v. McKinley, supra; Raschke v. Haderer, 138 Wis. 129, 119 N. W. 812. We are cited to the case of Faubel v. Eckhart, 151 Wis. 155, 138 N. W. 615, as authority to the point that the decedent had power to contract for the disposition of the proceeds of the certificate, and that if he did so for a valuable consideration it became irrevocable as to any subsequent beneficiary who is a mere volunteer as against the one named in such contract. This contention is not sustained by the decision of this case. The court there explicitly held upon the authority of Hutson v. Jenson, 110 Wis. 26, 85 N. W. 689, “that the insured has no title, ownership, or property in the fund agreed to be paid to another after his death. He has a mere power of appointment of a beneficiary during his lifetime, and in that power the beneficiary has no vested interest.” Under the statutes, sub. 5, sec. 1957, the by-laws of the association, and the adjudications of this court the deceased had the power to change the beneficiaries of his certificate as he did, and the plaintiff had no legal or equitable, right to the proceeds of the certificate in question as against the defendant who was named by the insured as the sole beneficiary. The court properly held that the defendant is entitled to the fund paid into court. By the Qourt. — The judgment is affirmed.