
    Simon Sanger, Individually and as Administrator, etc., v. Emma Rothschild, Individually and as Administratrix, etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    1. Insurance (life)—Mutual benefit association—Constitution of— Certificate.
    One William Rothchild, who was then nnmarried, in 1874 became a member of the I. O. of E. S., a mutual benefit aid society, which obligated itself to pay $1,000 on the decease of a member. He duly; designated his uncle and aunt as his beneficiaries. Afterwards he married the defendant, and died leaving her his widow, but leaving no child- en. The plaintiff, an uncle of the deceased, claimed under the designation in his own behalf, and as administrator of his wife. Held, that the widow of the decensed member became entitled to the money under the constitution and by-laws existing when the written designation was made. Any action taken by the association or society afterwards, would not affect her rights ■ thereto.
    2. Same—Governed by law of association when issued. ■'
    The constitution and by-laws at the time that the designation aforesaid was made, secured to the member’s wife in the first instance the whole sum. Held, that the direction was no less imperative, because the deceased member was not married at the time when he made the written designation in favor of his uncle and aunt. That the designation was necessarily subject to the direction contained in the constitution or bylaws.
    3. Same.
    The constitution and by-laws of the order in plain language contained" the clear direction that the money should be paid in the first instnnee to the wife, and her right to it was in no way rendered dependent upon or subject to any written or other direction of the member himself. It -was secured to her in direct terms as a fundamental part of the agreement affecting the-disposition of the amount to be paid. Held, that the marriage of the deceased subsequently annulled the preceding written designation in favor of his únele and aunt, and entitled the wife or widow of the deceased member to the sum of money agreed to be paid by said association. .
    Case submitted under section 1279 of the Code of Civil Procedure.
    ' Solon P. Rothschild, for pit’if; Charles A. Adams, for deft.
   Daniels, J.

William Rothschild, who was then unmarried in 1874, became a member of the Independent Order of Free Sons of Israel, which was a Mutual Benefit Aid Association, organized and existing under the laws of the state of New York. By its constitution, or by-laws, it obligated itself to pay the sum of $1,000, on the decease of a member. Rothschild, in September, 1881, made the following designation for the payment of this sum of $1,000:

I, the undersigned, member, of the Standard Lodge No. 30, I. O F. S. of I., do hereby declare, of my own freewill, that the money, according to the endowment law of this district, amounting to $1,000, should be paid after my demise, to my uncle and aunt, Simon and Yandel Sanger, except otherwise by me directed.

W. ROTHSCHILD.
Witness:
Henry Levy,
Moses Lichtenauer.

And it is under the designation that the plaintiff in his own behalf and as administrator of his wife Yandel Sanger, claims this sum of money. Rothschild married the defendant on the 4th of May, 1884, and died on the lath of January, 1888, leaving his widow surviving him, but no children, and she individually, and also as administratrix, claims the same sum of money.

Which of these parties has the better title to the money in controversy, must be determined by the constitution or by-laws of the association. Greeno v. Greeno, 23 Hun, 478, 482, where it was held “that it was not in the power of the company, or of the member or both, to alter the rights of those who by charter, are declared to be beneficiaries, except in the mode and to the extent therein indicated. And the cases of Masonic Ins. Co. v. Miller, 13 Bush, 489; Duvall v. Goodson, 79 Ky., 224; Pres. Mutual Assurance Fund, v. Allen, 106 Ind., 593; Addisons. New England Com. Travel ers’ Association, 144 Mass., 591; Kaiser v. Kaiser, 1 N. Y. State Rep., 258; Hellenberg v. Dist. No. 1, etc., 94 N. Y., 580; Massey v. Mutual Relief Society, 102 N. Y., 523; 2 N. Y. State Rep., 487, supports this principl. The title to the fund, therefore, becomes a question of construction of the language employed in framing the constitution or by-laws in force and operative upon these parties.

At the time when the written designation for the payment of the $1,000 was made, and which was the only designation made in writing by the deceased member, the constitution of the society declared by section 2 that: The object of this fund shall be to secure the sum of $1,000, after the death of a member, and this amount shall :be paid, in the first instance, to his wife or children, as hereinafter provided by section 6; or, secondly, if liis wife be dead,, .to his children. No other person shall be entitled thereto, unless a brother shall have so designated in writing to his lodge, as hereinafter provided. And by section 6, in this manner referred to, further that “ A married brother may bequeath one-half of the legal amount to either one or all of his children. $500 at least must be devised to his widow.” In 1885, and again in 1887, changes were made in the constitution or by-laws of the order concerning the payment of this sum of money, but in no way advancing the rights or claims of the plaintiff, either individually or as administratrix. But so far as the changes extended, they appear to have been intended more definitely and distinctly to provide for the widow and the children of the deceased member, than that had been done by the constitution or bylaws in force when this written designation was made. If, therefore, the plaintiff, as the vzidow of this deceased member, became entitled to the money under the constitution or by-laws existing when the written designation was made, a judgment to that effect must be directed in the action, without rendering it in any respect dependent upon .more favorable action afterwards taken in her behalf by .the association or society.

And as the wife and widow of the member, the constitution or by-law, already quoted, secured to. her this sum of money, inasmuch as no bequest of any part of it was at any time made, or could have been made to children of the deceased member. As to the widow, no designation in writing was required, for it was declared in plain language that the sum of $1,000 should' be paid in the .first instance to the wife of the member or to his children, as provided by section 6, and as he left no children and made mo bequest under the authority of section 6, the direction of "the consitution was absolute for the payment of the money to his widow.

That direction was no less imperative for the reason that he was not married at the'time when he made the written designation in favor of the plaintiff and the intestate represented by him. The designation was necessarily subject to this direction contained in section 2 of the constitution or by-laws. It rendered that designation ineffectual in case of the decease of the member leaving a widow surviving him, as. was the fact in this instance.

The case of Folmers' Appeal (87 Penn., 133) has been relied upon as an authority opposed to this construction, but the facts of. that case materially differ from the present controversy. It seems to have been disposed of upon the effect of a proviso which the court held did not deprive the member of the power of disposing of the fund in favor of another person not within the proviso. The construction which was there adopted was somewhat severe, and is not entirely in harmony with the language of the constitution or by-laws of the association, and it cannot reasonably be extended to this case, which does not depend upon a proviso but upon an unqualified direction that the money shall in the first instance be paid to the wife of the deceased member.

The case of Highland v. Highland (109 Ill., 366) also depended upon the peculiar provisions of the constitution of the order from which the money proceeded in that instance and it as materially differs in its controlling facts from this case, as the other authority just referred to. Here there can be no misapprehension as to the construction which should be placed upon the constitution or by-laws of the order, for it in plain language contains the clear direction that the money shall be paid in the first instance to the "wife. And her right to’ it has in no way been rendered dependent upon or subject to any written or other direction of the member herself. It is secured to her in direct terms as a fundamental part of the arrangement affecting the disposition of the amount to be paid. His marriage consequently annulled the preceding written designation in favor of the plaintiff, and the intestate represented by him, and entitled the defendant, as the wife or widow of the deceased member, to this sum of money.

Judgment must accordingly be directed upon the case submitted to that effect.

Van Brunt, P. J., and Brady, J., concur.  