Harrison v. Stroud.

patrick v. Smith, 77 Va. 349. The same author (section 944) lays it down that "courts of equity will not interfere by injunction to restrain defendants, who have no right to an office, from assuming to exercise the functions on the ground of damage occasioned to the plaintiff, by exclusion therefrom, nor on the ground of fraud in the inspectors in counting the votes and awarding the certificate of election to the defendants." Hart v. Harvey, 19 How. Prac. (N. Y.), 245. So the general rule is stated in 10 Am. & Eng. Encyc. of Law, 761, thus: "As in cases of contest the office ought to be filled by one of the claimants while the action is pending, it frequently becomes a matter of importance to determine what evidence is sufficient to show which one should hold the possession of the office until the question of the right is settled.

It is, however, well settled that when it is made the duty of certain officers to canvass the votes, and issue a certificate of election in favor of the successful candidate, a certificate of such officers, regular upon its its face, is sufficient to entitle the person holding it to the possesion of the office during the action to contest the right, and is conclusive as to third parties and in collateral matters." And such seems to us is the reason of the matter and the weight of the authorities. People v. Miller, 16 Mich. 56; State v. Churchill, 15 Minn. 455 (Gil. 369); Kerr v. Trego, 47 Pa. 292. Courts of equity have not the inherent jurisdiction to try contests over elections to office. In the absence of statutory authority, they have no jurisdiction at all in the matter. The statute of this State has simply conferred upon the circuit court the jurisdiction to try certain election contests. But there is no intimation in the statute that they may go further, and, in addition to such trial, disturb the legal status of the claim

Grand Lodge A. O. of U. W. of Ky. v. Denzer.

ants as fixed by law pending the decision. As that power has not been given to the courts, it should not be exercised, but the incumbency of the office should be left where the law has placed it until such time as upon a final determination by judgment on the merits. the court may say, as it is then permitted to do, that the contestant is entitled to the possession of the office.

For the reasons indicated, the judgment is reversed and cause remanded to the circuit court, with directions to dissolve the restraining order and injunction issued against contestants, and to adjudge that there was no election held on November 6, 1907, to fill the vacancy in the office of marshal of Williamstown.



POLICY.-May 29.

Grand Lodge A. O. of U. W. of Ky.
v. Denzer

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).


Judgment for plaintiff. Defendant appeals.—Reversed.

1. Insurance-Mutual Benefit Insurance-Contract-Constitution as Part of Contract-Statutes.-Ky. St. 1903, section 679, providing that all policies or certificates "hereafter issued" which

Grand Lodge A. O. of U. W. of Ky. v. Denzer.

contain any reference to the constitution of the corporation shall have attached to the policy or certificate the portion of the constitution referred to, or the same shall not be considered a part of the contract, has no application to a certificate issued prior to its adoption.

2. Same-Change of Beneficiaries.--A certificate of a fraternal order recited that it was controlled by the laws of the order, which provided that the member had no property right in the fund named in the certificate; that the beneficiary named therein had no vested right therein until the death of the member; that the member might at any time change the beneficiary without his consent; and that the society should not be liable for the payment of the certificate unless the member named therein should comply with all the laws of the order, etc. A new certificate designated the member's son as beneficiary. The certificate was given to the son under an agreement that he should thereafter pay dues and assessments thereon. The order knew the facts, and for several years accepted payments from the son. Held, that the member could thereafter change the beneficiary or withdraw his membership from the order.


1. By statute and by the organic laws of the order, the beneficiary acquired no vested interest, but simply an expectancyan incomplete gift-subject to revocation by the member at any time before his death. (Kentucky Statutes, 670; Bacon on Ben. Societies, 3 Ed., 291-291a; 3 Am. & Eng. Enc. of Law, 2 Ed., p. 992; Lockett v. Lockett, 26 Ky. Law Rep., 300; Wrathers v. Stacy, 26 Ky. Law Rep., 684; Howe v. Fidelity Trust Co., 28 Ky. Law Rep., 285; Mutual Life Ins. Co. v. Twyman, 28 Ky. Law Rep., 853; Manning v. A. O. U. W., 86 Ky., 137; Schillinger v. Boes, 85 Ky., 363; Wirgman v. Miller, 98 Ky., 624; Sturges v. Sturges, 31 Ky. Law Rep., 542; Hopkins v. Hopkins, 92 Ky., 327; Leaf v. Leaf, 92 Ky., 166; Masonic Ben. Assn. v. Bunch, 109 Mo., 461; Masonic Society v. Burkhard, 110 Ind., 193; Hollard v. Taylor, 111 Ind., 126; Fiske v. Equitable Aid, 11 Atl. Rep., 84; Brown v. A. O. U. W., 80 Iowa, 287; Hamilton v. Royal Arcanum, 189 Pa. St., 275; Sofge v. Knights of Honor, 39 S. W. Rep., 853; Fischer v. Fischer, 42 S. W., 450; Westerman v. Sup. Lodge, 94 S. W. Rep., 470; Borgraefe v. Knights and Ladies of Honor, 26 Mo. App., 226; Bunyan v. Reed, 70 N. E. Rep., (Ind.) 1002; Delaney v. Delaney, 51 N. E. Rep., (Ill.) 961; Pollock v. Sup. Council, 84 N. Y. Supp., 943; Jory v. Sup. Council, 105 Cal., 43.)

Grand Lodge A. O. of U. W. of Ky. v. Denzer.

2. The subordinate lodge officers are special agents with limited authority, and without any power to waive the laws of the order, or to agree to a change in the contract. (Bacon Ben. Societies, 145; A. O. U. W. v. Connolloly, 43 Atl. Rep., 286; Modern Woodmen v.Tevis, 117 Fed., 369; Royal Highlanders v. Scovill, 4 L. R. A., (N. S.) 421; Kocher v. Sup. Council, 48 Atl., 544; Sup. Lodge v. Jones, 69 N. E. Rep., 718; Borgraefe v. Knights of Honor, 26 Mo. App., 226; McCoy v. Roman Catholics, 152 Mass., 272; McDonald v. Chosen Friends, 78 Cal., 40; Sup. Lodge v. Keener, S. W. Rep., 1085; Sweet v. Society, 78 N. E., 641 and other cases.

3. In benefit societies a member has the right to discontinue his membership at any time and quit the order without the consent of the beneficiary. (Lavin v. A. O. U. W., 112 Mo. App., 1; Sov. Camp v. Hicks, 84 S. W., 425; Sheridan v. Modern Woodman, 87 Pac. Rep., 127; Glardon v.Sup. Lodge, 50 Mo. App., 45; Pollock v. Sup. Council, 84 N. Y., 543 and other cases.)

4. Neither beneficiary's possession of the certificate, nor his payment of assessments created any vested or additional right. (See authorities and other points.)



1. The right to a policy or certificate of insurance and the money to become due under it vests immediately upon its issual in the person named in it as beneficiary. This vested right cannot be divested by the insured nor by the company. (Hopkins v. Hopkins, 92 Ky., 324; Weisert v. Muehl, 81 Ky., 336; Kentucky Constitution, 19.)

2. The gift of the certificate of insurance in question from Adolph Denzer to his son, Henry Denzer, (the beneficiary therein) upon condition that said Henry should pay all of the charges of the appellant lodge against same, and the full compliance by said Henry of said agreement vested in him a right to said certificate which neither his father nor said lodge could abbrogate or impair. Am. & Eng. Ency. of Law, 2nd Ed., vol. 3, p. 993; Joyce on Insurance, vol. 2, p. 917, sec. 742; Joyce on Insurance, vol. 2, p. 915, sec. 741; Jory v. Supreme Council, etc., 105 Cal., 20; Smith v. National Benefit Society, 123 N. Y., 85; Pingrey v. National Life Ins. Co., 144 Mass., 374; Lemon v. Phoenix Mutual Life Ins. Co., 38 Conn., 303; Nix v. Donovan, 18 N. Y. Supp., 435; Maynard v. Vanderwerker, 24 N. Y. Supp., 932.)

3. A party cannot complain of an instruction of the court (al

Grand Lodge A. O. of U. W. of Ky. v. Denzer.

though said instruction be erroneous) if said party has himself tendered and offered one of the same import or substantially similar. (Gorman v. Louisville Railway Co., 24 Ky. Law Rep., 1939; L. & N. R. R. Co. v. Penrod, 24 Ky., Law Rep., 53; Union Central Life Insurance Co. v. Hughes, 22 Ky. Law Rep., 1551; First National Bank v. Ger. Safety V. & T. Co., 23 Ky. Law Rep., 2126; Smith v. Leforce, 14 Ky. Law Rep., 400; Sample v. Hill, 2 Ky. Law Rep., 65; Clift v. Stockdon, 4 Lippell, 216; Louisville Water Co. v. Phillips, 28 Ky. Law Rep., 557.)

4. When it is clear that a tender will not be accepted, it need not be made. (Am. & Eng. Enc. of Law, vol. 2, 2nd Ed., p. 7; Authorities cited in note under vol. 28, supra.)


It appears that one Adolph Denzer became a member of the order of the Ancient Order of United Workmen in the year 1877. He joined Antiquity Lodge No. 30 in Louisville, Ky., on July 23, 1877. A certificate of insurance was issued to him wherein it was agreed that the Grand Lodge would pay at his death the sum of $2,000 to his wife, Mary Denzer,. Appellee, Henry Denzer, at that time was a small boy. It appears that in March, 1886, Adolph Denzer had the above benefit certificate changed so as to read as follows: "To Mary and Henry Denzer, bearing relation. ship to me of wife and son, $1,000.00 each." This certificate remained in the possession of Adolph Denzer until August 15, 1890. His wife died August 13, 1890. Appellee at that time was living with his parents, being then a young man about 22 years of age. After Adolph Denzer's wife died, he took the lastmentioned certificate to the home office of the recorder of the lodge and requested that the certificate be changed, and a new one issued making his son, appellee, the sole beneficiary of the entire sum of $2,000. This request was granted, and the recorder of the lodge, living near Mr. Denzer, carried the same to his

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