The material facts in this case are agreed on. On November 1, 1882, appellee, an old line insurance company of Cincinnati, Ohio, issued to John Sauerbier, the husband of Emma Sauerbier, and father by her of the other appellants, a policy upon his life for $1,000. To the agent who solicited and took his application for it, he stated that he wanted the insurance to be made in favor of his wife and children, and so fixed that if any more should be born to him they should share therein equally with those then living. On its face, among other things, the following appears in print: “10. Hame of the party in whose favor the insurance is proposed,” and immediately following, written by the agent, “Emma Sauerbier and my children.” In print: “11. Relationship, if any, to the party whose life is proposed to be insured,” and immediately following in the handwriting of the agent, “wife and children.” The signatures to it, which are on the right of the page, as usual, are first, “ Jno. Sauerbier,” in his own hand, on a line just over a printed note indicating it as the place for the signature of party insured, and on a line next under it “Emma Sauerbier and my children, by John Sauerbier,” in his handwriting, over a like printed note indicating it as the place for the signature of the “ beneficiary.”
On the left, opposite to them, appears the following: “Witness, M. C. Carr, M. D.,” and under this, “approved by E. R. Farnam, agent,” notwithstanding the intervening space is occupied by a finely printed note that—“In every case the party whose life is to be insured must sign this application and deelai'ation for himself. He must also sign for the beneficiaries (unless such beneficiaries sign for themselves) as follows: The husband may sign for his wife, and the father for his children, and the debtor for the creditor. Example: Children—1 Jane and Mary Smith, by John Smith.’ ”
Thus it appears that the applicant intended and expected the policy to be made out for the benefit of his children as well as of his wife, including those, if any, who should thereafter be born, and whom, for that reason, he could not then name, and that Mr. Farnam, the agent of the company, fully understood this intention, wrote the words that expressed it in the application, approved the signature for the children as made, assured the applicant that the expression thus used would make them beneficiaries, and agí eed with him that the policy should so provide. The policy expressly makes the application part of it, but names as beneficiary Emma Sauerbier only, and outside of the application makes no reference to any other.
Some time after its issuance, mutual dissatisfaction arose between the insured and his wife. A bill for divorce was filed by her, and a cross-bill asking the same relief, by him. An arrangement was made between them whereby he withdrew his charge and claim and all opposition to hers, and she, in consideration thereof, signed a statement that she had assigned to him all her interest in the policy. After that he became a member of Leonidas Lodge, Knights of Pythias, of Hurphrysboro, Ill., and still later, afflicted with a lingering disease, on account of which the lodge expended in caring for and burying him, §268.81 more than he was entitled to under its by-laws. In view of such expenditure he assigned to it the policy in question and gave notice thereof to the company. After his death the lodge made the necessary proofs and claimed the insurance. His widow then brought suit for it. The company filed its bill asking that these claimants be required to interplead and offering to pay the money into court. Her attorneys then filed a petition of the children to be made parties and allowed to interplead also, and on leave obtained, filed a bill setting up their relation to the insured, his intention with respect to the insurance, and the statements, acts and agreements of the company’s agent as above stated, and asking that the policy be reformed or construed to conform to said agreement and make them beneficiaries.
The issues having been made up were tried by the court, and a final decree was entered, dismissing the children’s bill, and in favor of the lodge for the full amount of the policy; from which decree this appeal was taken.
The controversy here is between the children and the lodge. It is contended, on behalf of the lodge, that the children had no interest as beneficiaries, because they were not named in the policy.
By agreement of the parties, the original policy, including the application, was left with the clerk for our inspection. We do not find in it any condition or provision making it essential that the intended beneficiary should be named in order to invest him with the interest.- All that appears in relation to the name is in the note above quoted, which seems to be only directory.
Of course, he should be identified, and the name is the usual, and generally the best, means for the purpose. But, clearly, it is not the only means, nor in all cases practicable, as is shown in this. A "father may make this provision for his unborn child. The name, therefore, can not be essential, unless made so by the contract: Clinton v. Hope Ins. Co., 45 N. Y. 460; Burrows v. Turner, 24 Wend. 275; and where other description is uncertain, parol or other extrinsic evidence is admissible to aid it. Ibid. And if in this case the company could have had any special interest in the particular means of identification, or intended any more than that the name should be given where it was practicable, we hold it.would be bound by the assurance of its agent to the applicant of the sufficiency of the statement and signature here used, to accomplish his purpose. Such assurance was within the scope of his power. Malleable Iron Works v. Phœnix Ins. Co., 25 Conn. 465; Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533. There was no misrepresentation of fact, nor any obscurity of meaning. The only defect alleged is in the mere form of the statement and signature. The agent, doubtless, believed it was sufficient and proper for the purpose intended, and the applicant was justified in relying upon his judgment in respect to it. The company was not thereby misled into any risk it would not otherwise have taken. His intention was plainly manifested by the application, and it should have issued a policy conforming to it, or given him the opportunity to apply elsewhere. Having accepted the application and made it a part of the policy, it should be estopped to deny the interest of the children. May on Insurance, Sec. 120; Bliss on Life Ins., Sec. 290, et seq.; Wood on Fire Ins., 2d Ed., Vol. II, pp. 843-4, and notes.
The company is not here denying it; it is the lodge that denies it. It claims under the insured, their deceased father, and can have no better right than his. If anybody should be estopped to deny that they were beneficiaries, certainly he should.
But it is said that if they were, they had no vested interest, and that he, as the insured and contracting party, could change the beneficiary and control or assign the policy without consent of the latter; citing Swift v. R. P. & T. C. Ben. Ass’n, 96 Ill. 312, and other cases, in all of which the certificate of membership is in mutual benefit societies organized under statutes. These instruments are in the nature of policies of insurance, but are distinguished from them in some respects, of which the particular case here in question seems to be one. As to ordinary policies we apprehend the rule is that the beneficiary has a vested interest which is beyond the control of the party procuring the insurance.
The text writers concur on that point. Bliss, Sec. 318; May, Sec. 390; Bacon, Sec. 304; Niblack, Secs. 171, 201. It was recognized in Glanz v. Gloeckler, 10 Ill. App. 484; S. C., 104 Ill. 573; and was expressly held in Hubbard v. Stapp, 32 Ill. App. 541. See also the Central Bank of Washington City, v. Hume, 128 U. S. 206, where the same rule is declared and authorities are cited. Then if the children were beneficiaries the assignment of the policy by the insured to the lodge was ineffectual against them. The wife’s interest went to him under her release or assignment, and therefore passed by his, to the lodge.
We hold that the beneficial interest in the insurance was intended to be in the wife and children equally, per capita, and the policy should be so construed. We do not deem it necessary to consider the supposed difficulties in the way to a reformation of it. There is a growing inclination on the part of the courts even at law, to accomplish the same pur- • pose by construction and the application of the doctrines of estoppel and waiver, whenever the cases admit of it. May on Ins., Sec. 566, and eases cited in the notes; also Am. Cent. Ins. Co. v. McLanathan, supra; State Ins. Co. v. Shreck, 27 Neb. 527; German Ins. Co. v. Miller (opinion of this court at this term). Here the contract refers to the beneficiary in three places. In two of them the children are expressly shown to be intended as such together with the wife. In one they are omitted. They ought to have been included there also, and the court will treat as done that which ought to have been done.
For these reasons we think it was error to dismiss the children’s bill and award the whole amount of the insurance to the lodge. The decree will, therefore, be reversed and the cause remanded for further proceedings in conformity with the views here expressed. The costs of this appeal are adjudged against the lodge.
Heversed and remanded.