
    Cordelia Armstrong, as Guardian, etc., Resp’t, v. Samuel Warren, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    Insurance—Mutual benefit—Beneficiaries.
    The beneficiaries in a mutual benefit insurance policy cannot be changed without the consent of the company.
    Appeal from a judgment in favor of plaintiff.
    
      James J. Allen, for app’lt., J. Mortimer Bill, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term in favor of the plaintiff. The action was originally instituted against the Royal Arcanum to recover the amount of a benefit certificate payable, on the death of Horatio Forbes, to his two children, Madeline and Olive. The defendant conceded its liability on the certificate, but one Samuel Warren also claimed half of the fund as guardian of Mandoline Forbes. The fund was therefore paid into court, and Warren substituted as defendant. The claim of the plaintiff is based upon an indorsement made by the deceased upon the certificate in July prior to his death. This is in the form following:

“To Supt Secy. S. O. R. A: I herewith surrender and return to the supreme council of the Royal Arcanum the within benefit certificate No. 51,636, and direct that a new one be issued to me, payable to Cordelia Armstrong, as trustee for and guardian of my children, Madeline W. and Olive H. Forbes, residing at437 Lincoln avenue, Mt, Vernon, N. Y., related to me as sister.
“Horatio Forbes. [L. S.]
“Signed in presence of R M. J. Armstrong.”

After thé death of Horatio Forbes, the execution of this indorsement was proved by the subscribing witness, and the instrument recorded in the register’s office of Westchester county, where the deceased resided, on January 15, .1894. The defendant, Warren, was appointed general guardian of Madeline Forbes on November 23, 1893:

The first contention of the plaintiff is that the indorsement changed the beneficiary from the infants named in the certificate to herself, as trustee and guardian. Had this been an ordinary insurance policy, the deceased would have had no right to dispose of it. The title to the policy would have been in the children, to whom the insurance was payable. But the statute has modified this rule as to fraternal organizations. Where the designation of the beneficiary proceeds from the mere gift or bounty of the insured, his assent to a change of payee is not necessary. Laws 1892, c. 690, §238; Smith v. Nat. Ben. Society, 123 N. Y. 85; 33 St. Rep. 67. But this statute subjects this right of the insured to the qualification that the change shall be made upon the consent of the society in manner and form prescribed by its by-laws. Section 238, supra. There is no claim that the Royal Arcanum ever consented to a substitution of beneficiaries, or even had notice of the indorsement till after the decease of the insured. It follows, therefore, that there was no valid transfer of the insurance.

The second claim of the plaintiff is that the indorsement signed by the deceased constituted a valid, legal appointment of herself as guardian of the infants, and that the appointment of the defendant is superseded and void. We should be very loath to hold that this instrument, the sole intent of which was a contemplated change of the payees of the benefit certificate, could operate as a deed ap pointing a guardian. It is not necessary to determine the construction of this instrument. While the trial court found that the deceased duly executed this instrument, which might include a delivery, it also found, at the request of the defendant, that the certificate and endorsement remained in the possession of the deceased till his death. This latter finding must control, Traders' Nat. Bank v. Parker, 130 N. Y. 415; 42 St. Rep. 506, and in fact determines that there was no delivery of the instrument. To give the instrument vitality as a deed, it was necessary that it should have been delivered to the plaintiff, or for her benefit. Govin v. De Miranda, 76 Hun, 418 ; 59 St. Rep. 337.

The judgment appealed from should be. reversed, and a new trial ordered; costs to abide event.  