Opinion
13411.
NOVEMBER 16, 1940.
Interpleader. Before Judge Humphries. Fulton superior court. October 23, 1939.
Chauncey Middlebrooks and John M. Seal, for plaintiff in error.
George F. Fielding, Judson Andrews, J. D. Tindall, Clint W. Hager, and J. F. Kemp, contra.
1. "A mere volunteer beneficiary in a certificate issued by a mutual benefit association upon the life of one of its members has no vested interest therein prior to the death of the member." Dell v. Varnedoe, 148 Ga. 91 (2) ( 95 S.E. 977); Baldwin v. Wheat, 170 Ga. 499 ( 153 S.E. 194); Hewell v. Atlanta Police Relief Association, 184 Ga. 702 ( 192 S.E. 828).
( a) Accordingly it is not a fraud as against such volunteer beneficiary for the member to accomplish a change of beneficiary by procurement of a substituted certificate for the benefit of his estate, by failing to produce the original certificate and falsely representing that it is lost.
( b) As between the member and the volunteer beneficiary the substituted certificate will entitle the estate of the member to the benefits of the certificate.
2. If the member and the volunteer beneficiary enter into a valid contract upon a valuable consideration that the latter shall receive the benefits of the certificate, and the contract is performed by such beneficiary, the member will lose the right to change the beneficiary without his consent. Royal Arcanum v. Riley, 143 Ga. 75 ( 84 S.E. 428); Washburn v. Washburn, 188 Ga. 468 ( 4 S.E.2d 35).
3. The amendment to the answer to which the assignment of error relates must be construed most strongly against the pleader. While alleging her verbal contract with the member, whereby she individually should have the certificate and its benefits absolutely and unconditionally on the consideration that she should support herself and the children, and that she fully performed the contract, she alleges also that after such contract she obtained a final decree of divorce, and a judgment for permanent alimony payable in monthly installments, and at the time of the death of the member he "had not paid the amount of alimony due her at that time." This must be construed as an allegation by implication that she had been paid a substantial part (though less than all) of the alimony for support of herself and the minor children, and as contradictory to the general allegation that she had fully performed the contract. Under this construction the principle applies as stated in Melton v. Hubbard, 144 Ga. 18 ( 65 S.E. 1016): "The wife could not, after having accepted payment of alimony as ordered in the judgment . . , maintain a suit for the enforcement of the contract. Having taken a judgment requiring the defendant to pay to her the amounts named in the judgment as alimony, and having received alimony under such order, she thereby elected to abandon the contract and treat it as non-enforceable."
4. The judge did not err in dismissing the answer and the amendment, and on the pleadings awarding the fund to the widow of the member.
Judgment affirmed. All the Justices concur.
No. 13411. NOVEMBER 16, 1940.
A "benefit certificate" containing no restrictions against change of beneficiary was issued on April 10, 1909, to a member of the Atlanta Police Relief Association, whereby upon compliance with stated conditions the association promised to pay the wife of the member "a sum not exceeding one thousand dollars upon the satisfactory evidence of the death of the member, and upon the surrender of this certificate to the secretary of the association; provided that said member is in good standing in the association at the time of his death." In June, 1922, the member abandoned his home, wife, and several minor children, including a disabled minor son. At the time of leaving he gave and delivered into the actual possession of the wife the certificate to be hers absolutely and unconditionally, and agreed "to maintain the certificate in force for her benefit," all "in consideration of her caring for and providing for herself and said minor child and otherwise taking care of the family." The wife maintained and supported herself and the children in pursuance of the agreement. But on October 16, 1925, "she obtained" a final decree of divorce and a judgment against the member "for permanent alimony, which was to be paid by him in monthly installments, for and during her life and widowhood." She did not remarry, and at the time of the death of the member he "had not paid the amount of alimony due her up to that time, nor has any part of his estate been set aside for her in satisfaction of said judgment for permanent alimony." Previously to the decree for alimony and while the certificate was still in possession of the wife, the member, on October 18, 1924, procured to be issued a "substitute certificate" payable "to the estate of" the member. This was issued on the false representation by the member that the original certificate was "lost or misplaced." In an amendment to her answer to a suit by the association against the first wife, the second wife, and the executor of the estate of the member, for interpleader to establish their rights to the amount paid into court, the first wife alleged her case substantially as stated above. The amendment and the answer as amended were dismissed on demurrer, and the fund was awarded to the second wife on her claim of allowance of a year's support as widow of the member. The first wife excepted, the controlling questions being on dismissal of the amendment to her answer.