Slaughter v. Grand Lodge, supra. Appellant is not entitled to raise the issues made by her bill, but the eligibility of the beneficiary can be raised only by the association. Slaughter v. Grand Lodge, supra; Miller v. Sovereign Camp, W. O. W., 207 Ala. 551, 93 So. 526, 29 Cyc. 105, IV, A-1; Supreme Lodge v. Terrell, C.C.Ga., 99 F. 330. THOMAS, Justice.
" The Supreme Court of Wisconsin construed the seven years' presumption of death rule in a case as early as 1872 in Cowan v. Lindsay, 30 Wis. 586. It quoted at length from Greenleaf in his treatise on the law of evidence in volume 1. Later in the case of Miller v. Sovereign Camp, W.O.W., 140 Wis. 505, 122 N.W. 1126, 28 L.R.A. (N.S.) 178, 133 Am. St. Rep. 1095, the court followed the same construction, and again in the case of Page v. Modern Woodmen of America, 162 Wis. 259, 156 N.W. 137, 138, L.R.A. 1916F, 438, Ann. Cas. 1918D, 756, it affirmed the former decisions, and the language therein used somewhat clarifies the case at bar: "An examination of the evidence in the instant case satisfies us that it permits only of the inference that plaintiff's husband left his home and place of residence in the early part of March, 1905, and that neither the plaintiff nor any other person has had any tidings or information concerning him or of his whereabouts since the summer of 1905. The evidence clearly establishes the fact that Arthur E. Page had not been heard from for a period of eight years immediately preceding the time of the trial of this case, and that his whereabouts are wholly unknown. Under this state of the evidence the legal presumption that he is dead is established.
Delaney v. Metropolitan Life Insurance Co., 216 Wis. 265, 270, 257 N.W. 140. Nor was it necessary under Wisconsin law to prove diligent search and inquiry. Miller v. Sovereign Camp W. O. W., 140 Wis. 505, 122 N.W. 1126, 28 L.R.A.,N.S., 178, 133 Am.St.Rep. 1095. The outstanding Wisconsin cases which deal with the issue of death at a specific time within the seven year period are Delaney v. Metropolitan Life Insurance Co., supra; Dobelin v. Ladies of the Maccabees of the World, 171 Wis. 54, 174 N.W. 897; In the Delaney case, a married man, of regular habits, and a steady worker, lived peacefully with this wife, did not drink, was earning better wages than ever before, and customarily spent his evenings at home.
That a presumption of death so arises is a familiar doctrine, and in our state the presumption exists without search by the relatives to find him or to ascertain whether he is alive. Miller v. Sovereign Camp W. O. W. 140 Wis. 505, 509, 122 N.W. 1126. There would seem to be no question that the finding as to Helmuth's death and the distribution of the estate made by the court was correct but for sec. 318.03 (2), Stats., and the action of a county court in a similar situation which we firmed in Estate of Bloch, 227 Wis. 468, 278 N.W. 875. Sec. 318.03 provides what should be done in case of "escheats and unclaimed legacies and shares."
The beneficiary named in a benefit certificate does not have a vested right precluding the member from changing the beneficiary, the naming of the beneficiary conferring merely an expectancy. Miller v. Sovereign Camp, W. O. W., 207 Ala. 551, 93 So. 526; Slaughter v. Grand Lodge, 192 Ala. 301, 68 So. 367. Public policy which forbids one having no insurable interest to take out insurance on the life of another does not prevent one who procures insurance on his own life from making the benefit to another who has no insurable interest in it, unless restricted by statute or by charter or by-laws of insurer, and insurer can bind itself to pay to the beneficiaries named therein although they have no insurable interest in the life of the insured. Barnett v. United Bros., c., 10 Ala. App. 382, 64 So. 518; 2 Couch, Cyc.Law of Ins., 813, § 307.
By some the idea expressed by appellant's counsel is approved, and the party relying upon the presumption must show a high degree of diligence in making inquiry and search. By others it is distinctly held that proof of disappearance and continued unexplained absence for seven years, without being heard from by those with whom, in the natural course of things, the person would be likely to communicate is all that is necessary, and that the presumption is not rebutted or overcome by a failure to show specific acts of search or inquiry. Miller v. Sovereign Camp, 140 Wis. 505, 122 N.W. 1126, 28 L. R. A. (N. S.) 178, 133 Am. St. Rep. 1095; Page v. Modern Woodmen, 162 Wis. 259, 156 N.W. 137, L. R. A. 1916F, 438, Ann, Cas, 1918D, 756. " 'In none of our cases have we gone to either extreme, We have said that "when the absence) is shown to have continued for seven years, * * * unaccompanied by circumstances which reasonably account for his disappearance on theory not involving his death, it becomes sufficiently strong to cast to burden of rebutting it upon the party asserting a continuance of life. * * * Slight evidence may sometimes be sufficient to rebut the presumption of death; but ordinarily it is a question for the triers of fact to determine whether the presumption shall prevail.
Code 1923, § 8478; Sov. Camp v. Snider, 227 Ala. 126, 148 So. 831. Provisions of the certificate as to change of beneficiary may be waived by the insurer. Harris v. Whittington, 207 Ala. 551, 93 So. 526. Restrictions on disposition of the benefit by will applies only when the disposition was made during the life of the beneficiary named in the certificate. High Court, etc., v. Malloy, 169 Ill. 58, 48 N.E. 392.
A provision of the benefit certificate requiring change of beneficiary to be made in specified manner may be waived, and if waived a former beneficiary cannot avail of noncompliance therewith. Harris v. Whittington, 207 Ala. 551, 93 So. 526. The evidence was clear and uncontroverted, and the affirmative charge was due to be given for defendant.
(We are not required to consider now whether there must be proof also by those relying on the presumption of a diligent but fruitless search and inquiry. See Modern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100, 2 L.R.A. (N.S.) 809, 7 Ann. Cas. 570; Miller v. Sovereign Camp, 140 Wis. 505, 122 N.W. 1126, 28 L.R.A. (N.S.) 178, 133 A.S.R. 1002; Modern Woodmen v. Ghromley, 41 Okla. 532, 139 P. 306, annotated, L.R.A. 1915B, 728, Ann. Cas. 1915C, 1063.) Where it is an essential of a cause of action, death may be established by presumption alone; for example, in suits on policies of life insurance wherein the one who has disappeared was the insured.
The applicant, if she had received the policy, might have changed the beneficiary named therein, if done subject to its prescribed form and terms. That the mere issuance of the policy would not have established in the beneficiary rights paramount to those of the assured is the rule of old line policies. Morgan v. Prudential Ins. Co., 95 So. 355, 209 Ala. 110; Harris v. Whittington, 93 So. 526, 207 Ala. 551. This rule likewise obtains as to fraternal benefit societies. Supreme Council v. Behrend, 38 S.Ct. 522, 247 U.S. 394, 62 L.Ed. 1182, 1 A.L.R. 966; 1 Williston on Contracts, p. 741, § 396a.