The appellant by proper assignments of error makes the point that the appellee may not be allowed to recover the proceeds of the benefit certificate, because, according to the evidence, he does not come within the statutory classes of beneficiaries. It does not appear in the record that the laws of the association require the beneficiary to belong to one of specified classes at the death of the member. If, therefore, the plaintiff was eligible as a beneficiary, as being within one of the statutory classes of beneficiaries, at the time he was designated as such, he may not be deprived of the rights acquired by him under the certificate. According to the court's finding of fact:
"The insured had become dependent upon the said Richard Reynolds, and her earning capacity had become so small that she was no longer able to keep up her dues or to pay the premiums on the said certificate."
And this finding of the court that "the insured had become dependent upon the said Richard Reynolds" must be by this court taken as a fact; for the evidence in this respect is conflicting. The witness Joe Mahaffey, a brother of the deceased, testified:
That Nancy Lark "had lived with Bell Reynolds and Richard Reynolds for a number of years, and was in feeble health. About a month or so before her death she spent several weeks at his brother Clay's. That her [insured's] father and mother were dead."
And the plaintiff testified that, besides paying the premium on the certificate, he did "other things in a financial way for her [insured's] support and maintenance." So this fact, if found by the court, that the insured was dependent for support and maintenance on the aid of plaintiff, would show that the appellee was in a class enabling the insured to name him as a beneficiary under Acts 1909, p. 357. Section 6 of the said act especially provides:
"Provided, that if after the issuance of the original certificate the member shall become dependent upon the charity of an individual or of an institution, he shall have the privilege, with the consent of the association, to make such individual or institution his beneficiary. Within the above restrictions each member shall have the right to designate his beneficiary, and from time to time have the same changed in accordance with the laws, rules or regulations of the association, and no beneficiary shall have or obtain any vested interest in the said benefit until the same has become due and payable upon the death of the said member. Provided, that any association may, by its laws, limit the scope of beneficiaries within the above classes."
It appears as a fact that after the issuance of the original certificate, and in July, 1912, the insured agreed with appellee to change the beneficiary and name him as her beneficiary. It further appears:
"That the local temple, Christian Herald Temple, No. 283, at Marshall, Tex., agreed to the change in beneficiaries."
It does not appear from any finding of the court, and there is no insistence made, that the local temple was without authority to act for the association in assenting to the change of beneficiaries. Thus it appears that in July, 1912, the insured made a change in the beneficiary with the consent of the local temple of appellant association. The act of 1909 makes consent of the association necessary only in order to effectuate a change of beneficiaries. And there is no evidence of any regulation of the association which undertakes to fix, and the certificate in evidence does not fix, the time when a change in the beneficiary shall become effective, or specify the act which shall effectuate the change. In these circumstances a valid change of the beneficiary was, it is believed, effectuated in July, 1912, and that date of eligibility as a beneficiary would control. The date of the issuance of the new certificate on November 14, 1914, would not control over the date of July, 1912, at which time the appellee was designated as substituted beneficiary by the insured, with the consent of the association acting through its local temple. The insured in July, 1912, had done all the things required of her in order to effectuate a change of beneficiary, and the only thing lacking to complete such change was the performance of the ministerial act on the part of the association of making a proper record of the change, which it did here by issuing a new certificate in lieu of the original.
As there had been effectuated a change of beneficiaries in 1912, and at that time the appellee was eligible under the facts as a beneficiary, the Acts of 1913 (article 4832, Vernon's Sayles' Statutes) would not be applicable.
There being a valid change of beneficiary, the association will be protected in making the payment to appellee, and the judgment is affirmed.