
    Magdalena Kepler, Executrix, etc., Resp’t, v. Supreme Lodge Knights of Honor, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    1. Insurance—Life — Mutual benefit society—Nomination of beneficiary.
    The plaintiff’s testator, who was an illiterate man, became a member of the defendant society, which was a fraternal organization engaged in the business of life insurance upon the assessment plan, and received a benefit certificate, in which was written the name of his wife as beneficiary in case of his death. Shortly after he became a member his wife died. He had no children, but the plaintiff was his step-daughter and had lived with him for about forty years. He made a will after his wife’s death, by which he left all his property to his said step-daughter, except a small sum for a gravestone, etc. He had a letter written on said will to the principal officer of the lodge of defendant to which he belonged, and delivered the will so endorsed to said officer, and told him the purpose of the will. The will was received and kept by the defendant until after the testator’s death. There was a provision in the constitution of the lodge that “ in the event of the death of all the beneficiaries designated by the member before the decease of such member, if he shall make no other disposition thereof, the benefit * * * shall revert to the widow and orphan benefit fund.” Held, that the testator made a sufficient disposition of the funds within the meaning of said provision. Helleriberg v. Diet. Mo. 1, I. 0, of B. B., 94 N. Y., 583, distinguished.
    S. Sake—Waiver of irregularity.
    
      Held, That the delivery of the will to the proper officer of the lodge and the contemporaneous statements made by the assured and the retention of the will by said lodge, without any objection to the form or manner of designation, const tuted a waiver of any defect or irregularity in such designation.
    
      Appeal from a judgment rendered at the Dutchess county circuit in favor of plaintiff in a case tried by the court without a jury.
    
      Thompson, Weeks & Lown, forresp’t; Morris Ooodhart, for app’lt.
   Pratt, J.

The defendant is a fraternal organization engaged in the business of life insurance upon the assessment plan, and the testator of the plaintiff became a mémber of such organization.'

It was incorporated under the laws of Missouri, but did business through' subordinate lodges, one .of which was located at Poughkeepsie.

The testator, Adam Macht, a German laboring man, married a wife, Catherine, about forty-five years ago in Germany, who was a widow with one child, the executrix.

They soon after came to America and settled in Poughkeepsie where they lived as one family. No children were born to the testator and Catherine, but the'child of the latter was always the same as if she was the testator’s own child.

In 1885 Macht became a member of the lodge in Poughkeepsie, and received, in due form, a benefit certificate in which was written the name of his wife as beneficiary in case of his death.

A few months after Catherine died, but no change was made in the certificate, but Macht continued to live with his step-daughter until September 1886, when he went to a lawyer to get his will drawn.

By the will he left all his property to his step-daughter except a small sum- for a stone and care of a burial plot.

Except his clothes and some little furniture he left no property of any kind except the insurance in question.

After the will was drawn he went to a friend and caused him to write a letter on the back of it to Oakley Osborn, then one of the principal officers of the “Dutchess Lodge.”

The will, so endorsed with a letter, was then delivered by the insured to said Osborn.

Apparently the motive for such endorsement and delivery was a belief on the part of Macht, who was an illiterate man, that the will relating entirely to his benefit insurance should properly be placed in the custody of the lodge or its officers.

Osborn received the will and kept the same without reporting to the lodge or taking any action thereon.

Subsequently Macht died, and the step-daughter then went to him and got the will, which was duly proven, and letters testamentary issued to said Magdalena.

The grand lodge of the order refused to pay the claim on the ground that Macht had not taken steps sufficient to pass the insurance to his step-daughter.

Section 6 of Article 9 of the constitution of the lodge is as follows, " In the event of the death of aE the beneficiaries designated by the member, before the decease of such member, if he shall make no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and if no person or persons shaE be entitled to receive such benefit, by the laws of this order it shaE revert to the widow and orphan benefit fund.”

This section expressly states what shall be done in case of the death of the beneficiary, and must be regarded as controEing.

We think, under a fair construction of this provision, Macht disposed of this fund, and therefore it did not revert to_the widow and orphan fund.

It is plain the testator intended to dispose of this fund by his will, when all the facts and circumstances surrounding the transaction are considered.

He had no other property upon which the wiE could take effect. He spoke to the lawyer who drew the wiE about this insurance, and teEs Boyer, the reporter of his lodge, that it was to go to his step-daughter. He sent the will to the officer of his lodge apparently with the design to notify the lodge of his intention.

It is true that the will does not specificaEy mention the fund, but he had kept up the insurance after his wife’s death, with the assistance of the step-daughter, and undoubtedly intended that she should have the benefit of it, and as clearly supposed he had secured it to her by the wiE and by taking steps to notify the lodge.

So far as appears, he had no relations and no object of bounty except the plaintiff, and it is not at all probable that he, together with the plaintiff, would struggle to keep up the insurance for the benefit of the widow and orphan fund.

_ Under aE the circumstances, we think he made a sufficient disposition of the fund within the meaning of the section above quoted.

The case of Hellenherg v. Dist. No. 1, I. O. of B. B. (94 N. Y., 583) is not in conflict with these views. There the insurance was, in the absence of wife and children, to go to such person or persons as he may formally have designated to his said lodge prior to his decease.” Such designation was by means of the signature of the assured in a certain lodge book, which signature was to be witnessed by a brother member. The by-laws contained a plain provision, that if the assured left no wife and children, and neglected to make such designation in the manner prescribed, then the insurance should lapse.

There was no general power of “disposition,” as in this case; and, hence, the court held that the assured having only the power to designate a person to receive the fund, and that person having to be designated in a formal manner prescribed by the by-laws, and said designation having to be “to his said lodge prior to his decease,” that these requirements were not met by a clause in his will leaving the fund to his brother.

But even in this case the court says, in substance, that the will would have operated as a sufficient designation if it had been brought to the notice of the lodge during the lifetime of the assured.

That in that case ‘ it would have been good as a designation, although not yet operative as a will,” but that it not being brought to the lodge’s notice till after the assured’s death, it was ineffectual.

In the present case the will was sent to the proper officer of the lodge within a day after it was executed, and the reporter of the lodge was apprised of the contents by Macht and of the understanding that it conveyed his insurance to his step-daughter, right after its execution.

The delivery of the will to Osborne, the proper officer of the lodge, and the contemporaneous statements made by the assured to Boyer, the reporter of the lodge, and the retention of the will by said lodge, without any objection to the form or manner or designation, constitute a waiver of any defect or irregularity in such designation or disposition.

' If the paper was regarded as imperfect, it was the duty of the officers of the lodge to return it to the assured, with notice of defect.

We have examined the other exceptions in the case, but find no error to the prejudice of the defendant.

Judgment affirmed, with costs.

Dykman, J„, concurs; Barnard, P., J., not sitting.  