Grand Lodge v. Elsner

Rombatjer, J., delivered the opinion of the court. The plaintiff filed a petition in the nature of a bill — 111 — •of interpleader, stating that it was a benevolent association ; that one Jacob Eisner died .May 3, 1883, and was, at the date of his death, a member, in good standing, of the plaintiff association, and that the laws of the society provide that, on the death of any member in good standing, it should pay to the widow of the deceased the sum of seven hundred dollars, and, in case there is no such widow, to his children, in equal parts. The petition further states that there are rival claimants to such fund, who threaten to proceed against the plaintiff, and prays that the plaintiff have leave to pay the money into court, and that the claimants be ordered to interplead therefor. The claimants, appearing, admitted that the bill was properly filed, and the plaintiff paid the money into •court, and was discharged. . The two claimants, thereupon, filed their interpleas. The one filed by Johanna P. Eisner states that the sum of seven hundred dollars, by the laws of the. order, is payable to the widow of the deceased member, if she has lived in matrimonial communion with him, or has supported his minor children ; that she, the said Johanna, is the lawful widow of said Jacob Eisner, and that she Lad lived in lawful union with him from the time of their •marriage until the date of his death, and supported his minor children; wherefore, she is entitled to said sum. The interplea of Yettel Eisner states that the sum -of seven hundred dollars is payable, by the laws of the order, to the widow of the deceased member, in case she shall have lived with the deceased in lawful union, or, in case she shall have supported the minor children of the deceased ; that she, the said Yettel Eisner, is the lawful widow of the said Jacob Eisner, deceased, and had lived with the deceased in lawful union, and had supported his minor children; wherefore, she is entitled to said fund. Both interpleas admit that Jacob Eisner died May 3, 1885 ; that he was, at the date of his death, a member, — 112 — in good standing, of the plaintiff order ; that, by reason, of that fact, 'tlie plaintiff, by contract, was bound to pay to liis widow tlie sum of seven hundred dollars, less funeral expenses. Each interpleader filed an answer, denying the facts stated as a ground for recovery by the opposing inter-plea, with the exception of the facts admitted as above. The laws, rules, and regulations, of the plaintiff order, are not before the court, except as covered by the above admissions. The court found in favor of the interpleader, Yettel, and the appellant, Johanna, complains of the following errors: I. That the court refused, upon her request, to submit certain special issues to a jury. It is not contended here that the court erred in refusing to frame special issues, but that the court erred in refusing a jury trial altogether, as there was no waiver of a jury trial, and thus it is incumbent upon us to decide whether the appellant was entitled to a trial by jury as a matter of right. The constitution of this state, article 2, section 28, provides that: “ The right of trial by jury, as heretofore1 enjoyed, shall remain inviolate.” It refers to a right well known and defined by prior adjudications on that subject. That right never extended to issues in purely equitable proceedings. Conran v. Sellew, 28 Mo. 322; Ellis v. Kreutzinger, 31 Mo. 432. And the fact that the recovery of money is the object of the proceeding, does not change the rule. Weil v. Kume, 49 Mo. 158. We are referred by the appellant to a number of decisions, holding that the mere interposition of an equitable defence does not deprive the plaintiff of his right to a trial by jury. Wolff v. Schaeffer, 4 Mo. App. 367; Kitchen v. Railroad, 59 Mo. 517; Carter v. Prior, 78 Mo. 222; Moline Plow Co. v. Hartman, 84 Mo. 614. Although even that proposition has not been held main — 113 — tainable, where the answer, instead of setting up an equitable defence only, seeks affirmative equitable relief. Freeman v. Wilkerson, 50 Mo. 554. All these decisions, however, rest, for their foundation, on the principle, that the character of the action is determined by the petition, and not by the answer. While actions of interpleader were always maintainable, at common law, in certain cases, this is not such a case. Story Eq. Jur., sect. 811. Neither is this one of the statutory proceedings, where the action, in its inception, is a mere action at law, and the proceeding, by interpleader, is engrafted upon it by statute. This action is one which, in its inception, clearly falls within the exclusive cognizance of courts of equity, and a court of equity, having thus acquired jurisdiction, will, according to fundamental rules applying to its proceedings, retain it, until it has disposed of all the issues by final decree, and has done complete justice to all the parties. Story, J., says: “An interpleading bill is considered as putting the defendants to contest their respective claims, just like a bill does, which is brought by an executor or trustee, to obtain the direction of the court upon the adverse claims of different defendants.” We are, therefore, clear that the court committed no error in refusing to submit special issues to a jury. The action being purely equitable, it was discretionary with the court whether it would do so, and such discretion can not be reviewed, on appeal. II. The next error complained of is, that the court excluded declarations made by Jacob Eisner, as to his intent in effecting this insurance, and, also, excluded two-wills made by Jacob Eisner, one in November, 1884, and the other in February, 1885, the last of which was duly probated, in both of which this benefit, with other property, was willed to the appellant, Johanna, who is described therein as his wife. In this ruling there was no error. The pleadings admit that this benefit, by the — 114 — laws of the order of which, the decedent was a member, was payable to his widow, who had lived with him in lawful union, or matrimonial communion. It is nowhere asserted, claimed, or even intimated, that the contract was different, or that Jacob Eisner could, under any rule, regulation, or custom, of the order, dispose of the benefit, or change the beneficiary, by will, or otherwise. Nor does it appear that Jacob had, when he became a member of the order, any power, by any of its rules or regulations, to designate to whom this benefit should be paid. The beneficiary was designated by the laws of the order, which, so far as the pleadings or evidence show, was the only contract. Coleman v. Knights of Honor, 18 Mo. App. 189. If this be so, the person whose life was thus assured, could not, by his subsequent declarations, written or oral, affect the rights of the beneficiary. Reid v. Insurance Co., 58 Mo. 421; Evers v. Life Association, 59 Mo. 432; McDermott v. Life Association, 24 Mo. App. 73. III. The only remaining question is, whether the court, upon the evidence, came to the right conclusion in awarding the money to Yettel Eisner. The facts shown by the evidence are these: Jacob was lawfully married to Yettel, in Kempen, Prussia, thirty-four years ago. They lived together as husband and wife for several years, and had two children, a boy and a girl, the issue of this marriage. Yettel and the two children still live. About twenty-nine years ago, Jacob came to the United States of America, leaving his family in Europe. About seven years after Jacob came to the United States, he began cohabiting with the inter-pleader, Johanna, and lived with her, representing her as his wife, until his decease. All the parties are of the Jewish faith. Johanna knew that Jacob had a wife living in Europe, but was told that he had given her a divorce according to the rites of the Jewish church. Jacob had several children with Johanna. There is no — 115 — pretense, on the one hand, that a legal severance of the bonds of matrimony between Jacob and Yettel ever took place. There is no claim, on the other hand, that Johanna did not consider herself the lawful wife of Jacob, and it is conceded that, but for the impediment of the former marriage, the living together of Jacob and Johanna was of such a character as to create the relation of husband and wife. The probability is great, that, when Jacob became a member of the order, he thereby intended effecting an insurance for the benefit of Johanna. Conceding all this, however, we can not see how the case of Johanna is helped. The contract is clear and unambiguous, and its terms are clearly stated. It expresses conclusively, not the intention of Jacob, but the intention of both the contracting parties. It designates the beneficiary. That beneficiary is the widow, who had lived with Jacob Eisner as a wife in lawful union. Under the evidence in the case, there is only one person who answers that description, and we can not say that the court committed error in awarding the funds strictly in conformity with the express terms of the admitted ■contract. The judgment is affirmed. All the judges concur.