Keating v. Rockhill , 78 Pa. Super. 139 ( 1921 )

Opinion by

Head, J.,

The argument advanced by the learned counsel for the appellant goes far outside the crus of the case. We are not concerned with the possible lines of defense that might have been made by the association had either one of the parties now before us been compelled to sue it to recover the amount of the death benefit. The legal proposition we now have in mind has been well stated by Mr. Justice Dean in R. R. Co. v. Wolfe, 203 Pa. 274, in the following language: “Nor does the failure to have the wife’s name inserted as the beneficiary in the certificate or on the boohs of the association affect her right as against a mere volunteer.” We suppose it will not be contended that because the defendant’s name had been inserted in the original certificate he had any vested right in the sum of money represented by it. The member of the association retained the complete right to change the name of the beneficiary at his pleasure. To bind the association by any such change it was necessary the member should do certain things. Some of them he did not do in the case before us. His failure in this respect might have furnished ground for a defense by the association. It furnishes none for the present defendant. He would have had some difficulty in his effort to secure the amount of the insurance from the association if he were not able to furnish and turn over the certificate of the deceased member evidencing his right. That certificate was in the possession of his widow. Her right to that possession was the undoubted result of her husband’s will. He desired her to have the benefit of his insurance certificate. There was no reason why she should not have it and every reason why she should have it. Whilst there is no specific finding of fact by the trial judge before whom the case was tried without a jury, his general finding in favor of the plaintiff implies that he accepted the testimony of the widow as to the conditions upon which she parted with the certificate. The defendant needed it. To induce her to surrender it he told her that would be the easiest way to get the money from the association without any litigation. As he was the named beneficiary in the certificate on the books of the association, it would be easy for him to get the money if he could produce and surrender the necessary certificate. He told her that if she would turn over the certificate to him the money would be readily available from the association; that he would pay the funeral expenses of her husband out of the fund thus obtained, and would turn over the balance to her in accordance with the wishes of her husband as expressed in his will. On the faith of that promise she delivered the certificate. He secured the money and paid the funeral expenses but has neglected and refused to pay to her the balance of the fund and insists it is his right to keep it. Under the facts which are' practically undisputed, we cannot regard him as other than a trustee ex maleficio. We are of the opinion the money in his hands belonged to her. There was, therefore, a good consideration for his promise to pay to her the money that would come into his hands after he secured the possession of the certificate. This action rests upon his breach of that undertaking. The assignments of error are overruled.

The judgment is affirmed.