
    No. 24,763.
    Della Tamblyn, Appellant, v. The Columbian Circle, Appellee.
    
    SYLLABUS. BY THE COURT.
    Fraternal Insurance — Case Controlled by Former Decisions. The decisions made in Roper v. Columbian Circle, ante, p. 280, and Miller v. Columbian Circle, ante, p. 285, are held to be controlling in the present case and require an affirmance of the judgment.
    Appeal from Shawnee district court, division No. 1; James A. McClure, judge.
    Opinion filed April 7, 1923.
    Affirmed.
    
      W. A. S. Bird, of Topeka, for the appellant.
    
      A. M. Harvey, and Ralph T. O’Neil, both of Topeka, for the appellee; William H. Beckman, of Chicago, Ill., of counsel.
   The opinion of the court was delivered by

Johnston, C. J.:

This appeal brings up for review the construction of the reinsurance contract made between the Sons & Daughters of Justice and The Columbian Circle. The questions raised have been considered and determined in the recent decisions made in Roper v. Columbian Circle, ante, p. 280, and Miller v. Columbian Circle, ante, p. 285. The present case is distinguishable from those only in that after the reinsurance contract and before the death of the insured an application was made by her for a certificate in the Circle at a higher rate of assessment which, when issued, was to take effect on the first day of the following month and an advanced assessment was paid. The insured died before the new contract went into effect. The assessment paid was returned and the amount due under the certificate in the Sons & Daughters of Justice was calculated on the basis of the assessments which had been paid, and the amount found to be due was tendered to the beneficiary. It was paid into court and subsequently accepted by the plaintiff under a stipulation that her acceptance should not operate as a waiver of any right she had to claim additional benefits.

The plaintiff brings her action under the reinsurance contract made by the defendant, and under the construction which has been placed upon it she can only recover in accordance with its terms. The new certificate arranged for had not become effective at the death of" the insured and the plaintiff under the decisions made in the Roper and Miller cases can claim no more than she was entitled to under the certificate issued by the Sons & Daughters of Justice, an amount based on the assessments which had been paid by her under the original contract.

We find nothing substantial in the grounds of procedural error alleged, nor any error in the judgment rendered.

The judgment is affirmed.

Harvey, J., not sitting.  