FISHER, Judge,
Section
B.
This suit was instituted by appellant as administrator of the estate of Louella Briscoe, deceased, against the Supreme Lodge Knights and Ladies of Honor, a mutual benefit life insurance company, and Leonard Isaacs, administrator of the estate of John F. Briscoe, deceased, upon two relief fund certificates or policies issued and delivered to John F. Briscoe May 1, 1884.
Appellant among other things alleges that his intestate Louella Briscoe was the wife of John F. Briscoe, and that John F. Briscoe died on June 4, 1888, and that his intestate was named as beneficiary in the certificates or policies, and that Leonard Isaacs was asserting some pretended claim to said policies.
The defendant Supreme Lodge Knights and Ladies of Honor answered and admitted its liability on the policies sued on, and brought the money into court subject to the result of the litigation between the parties. On Hovember 19, 1888, the appellees intervened in the* case, claiming the policies and funds arising therefrom as the mother and sister of John F. Briscoe, being his sole heirs dependent upon him, and that the beneficiary named in said policies (Louella Briscoe) died before her husband or at the same time he died, and that by virtue of the laws of the association they were entitled to the proceeds of the policies. Appellant filed a general denial to the plea of intervention.
The case was tried before the court without a jury, and judgment was rendered in favor of intervenors against all the other parties to the suit for $2000, the amount of such certificates or policies.
The case is here upon the conclusions of law and fact found by the court, substantially as follows:
“The defendant the Knights and Ladies of Honor, an incorporated company under the laws of this State, admitted its liabilities and deposited in court $2000, the amount of the policies, and asked that the court relieve it of further liability in the premises, and that the right to the fund be adjudicated between the parties without cost to it.
“That John F. Briscoe was a member of Pearl Lodge Knights and Ladies of Honor, Bockdale, Texas, and that during his lifetime and while a member of said lodge he procured two benefit policies of insurance upon his life for the benefit of his wife Louella Briscoe, said policies in terms as follows: ‘This certificate issued by Supreme Lodge- Knights and Ladies of Honor, witnesseth: That John F. Bris-' coe, a member of Pearl Lodge Ho. 32 of said order, located at Bock-dale, in the State of Texas, is entitled to all the rights and privileges of membership in the order of Knights and Ladies of Honor, and to participate in the relief fund of the order to the amonnt of $1000, which sum shall at his death be paid to his wife Louella Briscoe.- This certificate is issued upon the express condition that said John F. Briscoe shall in every particular while a member of said order comply with all the laws, rules, and requirements thereof.’ [Signed by the supreme protector, John T. Milburn, May 1, 1884.] Ho. 21,781, class A. Ho. 4539, class B, is substantially the same.
“That said.Knights and Ladies of Honor had as parts of its Constitution, rules, and by-laws governing its members and entering into its benefit policies the following, to-wit, from its charter:
“ ‘Section 1. The corporate name of this association shall be Supreme Lodge Knights and Ladies of Honor, and be capable in law of suing and being sued, and owning property, instituting grand and subordinate lodges under such laws, rules, and regulations as the corporation has enacted or may enact not in conflict with the laws of this State and the United States.
“ ‘Sec. 2. The object of the corporation shall be to unite fraternally all acceptable white persons, male and female; to give all possible moral and material aid in its power to its members and those depending on its members by holding moral, instructive, and scientific lectures, by encouraging each other in business, and by assisting each other to obtain employment; to care for the sick and distressed, and to promote benevolence and charity by establishing a relief fund by contributions from members of the order of Knights and Ladies of Honor, from which upon satisfactory evidence of the death of a member of said order who is a contributor to the said fund at the time of his death, and who has complied with its lawful requirements, a sum not exceeding $5000 shall be paid to such member, or members of his or her family, person or persons, dependent on or related to him or her, as he or she may have directed; to provide for creating a fund for the relief of sick and distressed members, and to ameliorate the conditions of humanity in every possible manner.’
“From the Constitution, article 2—Objects of the Order:
‘ ‘ ‘ Section 2. To give all possible moral and material aid in its power to its members and those dependent on its members by holding moral, instructive, and scientific lectures, to encourage in business, and to assist each other to obtain employment.
“ ‘Sec. 3. To promote benevolence and charity by establishing a relief fund from which, on satisfactory evidence of the death of a member of the corporation who has complied with all its lawful requirements, a sum not exceeding $5000 shall be paid to their family, person, or persons dependent on or related to them, as they may direct. When the death notice of a member of the relief fund has been approved by the supreme medical examiner he shall draw a warrant on the supreme treasurer for the amount due. The warrant shall be made payable to the beneficiaries named in the relief fund certificate of the deceased member. Warrants to pay death benefits shall be made payable to the beneficiaries named in relief fund certificates. The lodge secretary delivering the warrant shall require the beneficiary or person lawfully entitled to receive it to give proper receipt.’
“That said policies on their face were made payable to Louella Briscoe, wife of John F. Briscoe, at his death, she being the sole beneficiary named in said policies. That one of the by-laws entering into said contracts of assurance is as follows: ‘ Should all the beneficiaries named die before the decease of a member, and no other or. further dis
position be made thereof, the benefit shall be paid to the heirs of the deceased member dependent on him or her, and if no person or persons are entitled to receive such benefit then it shall revert to the relief fund of said Knights and Ladies of Honor.’ Ho further or other disposition was ever made of said policies than as therein named during the lifetime of said John F. Briscoe; that John F. Briscoe and wife Louella Briscoe are both dead; that they died at the same instant of time, in the same room, by being burned in a fire which consumed the Mundine Hotel on the morning of the 4th of June, 1888. Ho one witnessed their death. John F. Briscoe and Louella Briscoe left no children. John F. Briscoe left his mother, Mary Briscoe, and Kate Briscoe, sister, residents of Indiana, the only heirs dependent on him for support; and that they (the interveners) were his only heirs; and that the Knights and Ladies of Honor is a mutual benefit association, and the members thereof have a right to change the beneficiaries named in the policies and to name another.”
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FISHER, Judge,
Section
B.
This suit was instituted by appellant as administrator of the estate of Louella Briscoe, deceased, against the Supreme Lodge Knights and Ladies of Honor, a mutual benefit life insurance company, and Leonard Isaacs, administrator of the estate of John F. Briscoe, deceased, upon two relief fund certificates or policies issued and delivered to John F. Briscoe May 1, 1884.
Appellant among other things alleges that his intestate Louella Briscoe was the wife of John F. Briscoe, and that John F. Briscoe died on June 4, 1888, and that his intestate was named as beneficiary in the certificates or policies, and that Leonard Isaacs was asserting some pretended claim to said policies.
The defendant Supreme Lodge Knights and Ladies of Honor answered and admitted its liability on the policies sued on, and brought the money into court subject to the result of the litigation between the parties. On Hovember 19, 1888, the appellees intervened in the* case, claiming the policies and funds arising therefrom as the mother and sister of John F. Briscoe, being his sole heirs dependent upon him, and that the beneficiary named in said policies (Louella Briscoe) died before her husband or at the same time he died, and that by virtue of the laws of the association they were entitled to the proceeds of the policies. Appellant filed a general denial to the plea of intervention.
The case was tried before the court without a jury, and judgment was rendered in favor of intervenors against all the other parties to the suit for $2000, the amount of such certificates or policies.
The case is here upon the conclusions of law and fact found by the court, substantially as follows:
“The defendant the Knights and Ladies of Honor, an incorporated company under the laws of this State, admitted its liabilities and deposited in court $2000, the amount of the policies, and asked that the court relieve it of further liability in the premises, and that the right to the fund be adjudicated between the parties without cost to it.
“That John F. Briscoe was a member of Pearl Lodge Knights and Ladies of Honor, Bockdale, Texas, and that during his lifetime and while a member of said lodge he procured two benefit policies of insurance upon his life for the benefit of his wife Louella Briscoe, said policies in terms as follows: ‘This certificate issued by Supreme Lodge- Knights and Ladies of Honor, witnesseth: That John F. Bris-' coe, a member of Pearl Lodge Ho. 32 of said order, located at Bock-dale, in the State of Texas, is entitled to all the rights and privileges of membership in the order of Knights and Ladies of Honor, and to participate in the relief fund of the order to the amonnt of $1000, which sum shall at his death be paid to his wife Louella Briscoe.- This certificate is issued upon the express condition that said John F. Briscoe shall in every particular while a member of said order comply with all the laws, rules, and requirements thereof.’ [Signed by the supreme protector, John T. Milburn, May 1, 1884.] Ho. 21,781, class A. Ho. 4539, class B, is substantially the same.
“That said.Knights and Ladies of Honor had as parts of its Constitution, rules, and by-laws governing its members and entering into its benefit policies the following, to-wit, from its charter:
“ ‘Section 1. The corporate name of this association shall be Supreme Lodge Knights and Ladies of Honor, and be capable in law of suing and being sued, and owning property, instituting grand and subordinate lodges under such laws, rules, and regulations as the corporation has enacted or may enact not in conflict with the laws of this State and the United States.
“ ‘Sec. 2. The object of the corporation shall be to unite fraternally all acceptable white persons, male and female; to give all possible moral and material aid in its power to its members and those depending on its members by holding moral, instructive, and scientific lectures, by encouraging each other in business, and by assisting each other to obtain employment; to care for the sick and distressed, and to promote benevolence and charity by establishing a relief fund by contributions from members of the order of Knights and Ladies of Honor, from which upon satisfactory evidence of the death of a member of said order who is a contributor to the said fund at the time of his death, and who has complied with its lawful requirements, a sum not exceeding $5000 shall be paid to such member, or members of his or her family, person or persons, dependent on or related to him or her, as he or she may have directed; to provide for creating a fund for the relief of sick and distressed members, and to ameliorate the conditions of humanity in every possible manner.’
“From the Constitution, article 2—Objects of the Order:
‘ ‘ ‘ Section 2. To give all possible moral and material aid in its power to its members and those dependent on its members by holding moral, instructive, and scientific lectures, to encourage in business, and to assist each other to obtain employment.
“ ‘Sec. 3. To promote benevolence and charity by establishing a relief fund from which, on satisfactory evidence of the death of a member of the corporation who has complied with all its lawful requirements, a sum not exceeding $5000 shall be paid to their family, person, or persons dependent on or related to them, as they may direct. When the death notice of a member of the relief fund has been approved by the supreme medical examiner he shall draw a warrant on the supreme treasurer for the amount due. The warrant shall be made payable to the beneficiaries named in the relief fund certificate of the deceased member. Warrants to pay death benefits shall be made payable to the beneficiaries named in relief fund certificates. The lodge secretary delivering the warrant shall require the beneficiary or person lawfully entitled to receive it to give proper receipt.’
“That said policies on their face were made payable to Louella Briscoe, wife of John F. Briscoe, at his death, she being the sole beneficiary named in said policies. That one of the by-laws entering into said contracts of assurance is as follows: ‘ Should all the beneficiaries named die before the decease of a member, and no other or. further dis
position be made thereof, the benefit shall be paid to the heirs of the deceased member dependent on him or her, and if no person or persons are entitled to receive such benefit then it shall revert to the relief fund of said Knights and Ladies of Honor.’ Ho further or other disposition was ever made of said policies than as therein named during the lifetime of said John F. Briscoe; that John F. Briscoe and wife Louella Briscoe are both dead; that they died at the same instant of time, in the same room, by being burned in a fire which consumed the Mundine Hotel on the morning of the 4th of June, 1888. Ho one witnessed their death. John F. Briscoe and Louella Briscoe left no children. John F. Briscoe left his mother, Mary Briscoe, and Kate Briscoe, sister, residents of Indiana, the only heirs dependent on him for support; and that they (the interveners) were his only heirs; and that the Knights and Ladies of Honor is a mutual benefit association, and the members thereof have a right to change the beneficiaries named in the policies and to name another.”
The conclusions of law are, “that Leonard Isaacs, administrator of the estate of John F. Briscoe, take nothing by his suit, and the same result as to the appellant, and that the inbervenors Mary and Kate Briscoe are entitled to recover against all the parties the fund of $2000, in the custody of the court, the proceeds of said policies.”
Appellant’s assignment of errors contends that the court erred in finding that John F. Briscoe and Louella Briscoe died at the.same instant of time; and further contends, that the court erred in not rendering judgment for appellant, as the findings of fact show that Louella Briscoe, the named beneficiary, did not die before her husband John F. Briscoe, and that her dying before her husband was the only contingency that would vest the title to the fund in appellees.
The common law does not indulge in any presumptions of survivor-ship. or death by reason of age or sox when two or more are lost in a common disaster. It leaves the ascertainment of the time of death to be gathered, like any other fact, by pertinent evidence introduced for that purpose. This case is here without a statement of facts, and having no presumptions to aid us we must conclude that the findings of the court that John F. and Louella BriscOe died at the same instant of time are correct. The finding of the court that no one witnessed the death of the parties does not necessarily negative the possibility or probability that they both died at the same time, and that facts and circumstances were introduced in evidence that would authorize the court to so find. In the absence of a statement of facts the presumption must be indulged that the court heard evidence upon this issue, and that his findings are correct results warranted by the evidence.
In order to divert the fund from the direction named by the husband it devolved upon the interveners to establish by evidence the existence of the contingency that would accomplish such purpose. The court
below finds that the wife, the beneficiary named by the husband, did not die before her husband, but died at the same instant. The result of this finding is that the beneficiary named at the time the policy was earned by the death of the husband did not survive him and was incapable of taking the proceeds of the policies. The purpose of this contract of insurance entered into by the husband and the association was to provide a fund for his wife payable at his death, and in the event she was incapable of taking by reason of her death then those heirs of the husband dependent upon him should take. These are plain provisions of the rules and by-laws of the association that enter into and form a part of the contract of insurance. The use of the words “ die before” in the contract of insurance was evidently intended to mean that the beneficiary named must be dead and incapable of taking at the time the policy was earned by reason of the death of the husband. The instantaneous death of both the husband and wife successfully accomplished the inability of the wife to take as if she had died before. The court below finds that the intervenors are the heirs of John F. Briscoe and were dependent upon him at his death. The contingency having occurred that would vest the property in his heirs dependent upon him, the court correctly rendered judgment in favor of appellees.
W. D. Seffley
and
D. D. Wallace,
for appellant, argued a motion for rehearing.
We conclude the case should be affirmed, and so report it.
Affirmed.
Adopted June 23, 1891.
The motion was transferred to Tyler Term and there refused.