Omaha daily bee., 1902-04-06
EQUITY ACTS FOR THE DEAD
So Holds Judge Keysor in Deciding OOuns-
mar Insurance Case,
DECISION AGAINST coUNsMANs WIDOW
Court Says that Inv VIII Accomplish
for n Party that which He
Intends TO DC when
Death I~nterferes.

After two days interment with the au-
thorities cited, Judge Keysor exAumed him
self yesterday and gave a decision for
Arabella Counsman. the mother, and
against Mary Counsman, the wife, In the
case involving the $4,000 benefit due from
the Modern woodmen OF America since the
death OF Ulysses G. CounsmAn. a member
Of the order. Under this ruling 81. 500 would
be paid TO Counsman's son and $500 to his
mother. but the case is to be appealed to
the supreme court, the wife's attorney
says.
The case is given its principal interest
by the circumstances attending Il. rather
than the amount involved. Its history, as
related by the Judge this morning. dates
from June. 1900. when Mrs. Mary Couns-
mar went to New York, ostensibly on q
visit, but neither returned at the expected
time nor wrote. Early in the spring of
1901 Mr.. Counsman was taken III, was re-
moved to his brothers neme and finally to
that OF his parents. He had written Mrs.
Counsman several times before, II Is told,
and when his condition became serious his
father, Jacob J. C~ounsman, wrote, telling
the wife Of the husbands sickness and
asking her to return.
Applies for n Change
The invalid at last concluded his wife
had abandoned him and on May 2S he had
the clerk of the Modern Woodmen Of
America called to his home and there re-
quested to have a new certificate made out.
providing that in the event OF his death
his father should take 81, 500 to hold in
trust for his (Ulysses') son and the remain
ing $500 to go to his mother, Arabella, In
stead of to his wife, Mary. as provided in
the old certificate. The clerk collected the
proper fee and took the proper acknowl-
edgment and that afternoon he sent the
papers to the grand secretary OF the order
at Rock Island, III. The papers could not
reach there until some time the next fore
noon and Mr.. Counsman died at 9 a. m.
The grand secretary returned the papers,
saying that the certificate could not be
approved as prepared, because It provided
for paying the money to the grandfather,
whereas It would be necessary to pay to
the boy direct and then let the courts
appoint a guardian. It was, OF course, for
ever too late to secure the signature OF the
departed member to any new or altered
certificate and on this technicality was
hung the contest.
Arabella and Mary Counsman both de-
manded the $500 Of the fraternity and the
fraternity. to relieve itself Of the RESPONSE
bility, took the matter into court as inter-
pleader. The attorney for Mary cited that
provision Of the Woodmen bylaws which
stipulates that no change of beneficiary
can become effective until the old certin-
cate is Cancelled and a new one completed.
He commended that the new one had not
been and could not be completed.
Judge KeysOr's Opinion.
The judge conceded that the authorities
cited on most Of the points In the case
were quite evenly balanced, but he ac-
cepted as the best the opinion of Justice
Brown OF Michigan. who held that under
such circumstances equity must accomplish
for a party that which he desired to do
and had started TO do when death In
terrupted. Specifically Judge Keysor said:
such change must be made according
to the bylaws, but II a man desires to make
the change and does all he can. but dies
before the change is complete. equity will
complete that change for him. As to the
change itself, the court considers that Mr..
Counsman was Justified in ordering It, as
he acted only after giving his wife ample
opportunity to inform him OF any inten-
tion she had Of returning to him."
Concerning this last remark. 1t is the
assertion Of the attorney for Mrs. Couns-
man that she never received her husbands
nor ais fathers letters.