Barboza v. Conselho Supremo Da Irmandade Do Divino Espirito Santo Do Estado Da California

KERRIGAN, J.

This is an appeal by plaintiff from a judgment in favor of the interpleading defendants for the amount of a policy of fraternal insurance.

The plaintiff is the surviving wife of Augusto J. Barboza, who died in the month of November, 1916, and the respondents are his three children, issue of a former marriage. In the year 1905 Barboza became a member of the fraternal society named in the title to this action, and there was issued to him at that time a policy or certificate in which the respondents were named as beneficiaries. In the month of October, 1916, he was ill and had been so for some time, and desiring to change the beneficiaries named in said certificate, which he had lost, he set about having issued to him a duplicate thereof, the immediate purpose of obtaining said duplicate being that he might indorse thereon the desired change, such indorsement being the first step prescribed by the rules of the society to be taken in making the change. In order to obtain this duplicate certificate he made and signed an affidavit upon the regular form provided by the society, but failed to fill in its blank spaces correctly. Instead of stating therein that his certificate was lost, and that therefore he desired to obtain a new one, he stated as a reason for making the affidavit that he desired to transfer the certificate to his wife. The secretary of the society returned this affidavit to Barboza as insufficient, stating with reference thereto “He cannot change the beneficiaries in this document.” He then made a second affidavit, which was accepted by the secretary and presented tó the supreme directors, who met on November 13, 1916, in regular session. The deceased died on the same day, and notice of his death was given to the supreme

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directors while in session. After receiving such notice the súpreme directors approved the second affidavit and ordered-that a duplicate certificate issue “to the within member applying for the same.” The laws of the society provided that a member may change beneficiaries “by making the change on the hack of the policy or a duplicate thereof,” and that if the policy has been lost or destroyed, in order to obtain a duplicate he must make an affidavit for that purpose, and that before a duplicate policy can be issued the supreme directors “must give their permission and approval to the supreme secretary before the issuance of said duplicate policy, and direct said supreme secretary to issue a duplicate policy.” The rules further provide that when the change of beneficiary has been properly indorsed upon the back of the original or duplicate policy, the same must be filed with a designated body for approval or rejection.