The record in this case shows that on the 8th day of December, 1930, plaintiff in error, Merchants and Bankers Guaranty Company, a corporation, issued a membership certificate No. 6977 for the sum of $1,000.00 maximum death benefit on the life of Charlie Downs, who at that time was 65 years of age. The beneficiary named in the membership certificate was Mrs. Mollie Downs, wife of the insured Charlie Downs. The certificate and the record fail to show a medical examiner's report was required by the plaintiff in error as to the health or physical condition of the insured. The record shows further that the necessary premium installments required by the plaintiff in error were paid and receipts issued therefor.

The membership certificate, supra, was affected by Chapter 15885. It became the legal duty of plaintiff in error to *Page 789 conform with this Act, and to accomplish this objective it was beneficial to its interest to obtain a surrender of the membership certificate, supra, and, if agreeable to the parties, to issue one in lieu thereof. On the 7th day of February, 1934, a membership certificate No. 5034 SL issued by plaintiff in error to Charlie Downs, and his wife, Mollie Downs, was made the beneficiary thereof. A lawful surrender and cancellation of the original membership certificate is asserted by plaintiff in error. Proof of death of Charlie Downs was filed by the widow with plaintiff in error.

A question arises as to the method of obtaining a substitution of membership certificates. The record shows that Charlie Downs was 68 years of age at the time of the substitution, he died some few months thereafter, no medical report appears as to his physical condition, but an instrument agreeing to the substitution of certificates appears bearing his signature. His wife testified that the deceased could not read or write and under these circumstances the old certificate was surrendered and another certificate issued. If fraud, misrepresentation or any other act unlawful in its nature was resorted to in obtaining a surrender of the original membership certificate No. 6977, it should and ought to be made an issue, or issues, when the pleadings are reframed, hence the reason for concurring especially.

TERRELL and BROWN, J.J., concur.