
    Tisch v. The Protected Home Circle.
    
      A by-law of a fraternal benefit association — Providing that certificate issued to a member shall be void in case of beneftci- ' ary’s suicide — Is consistent with the purposes of the association — Such by-law adopted after issue of certificate— Violates no vested right of beneficiary — Laws of beneficiary associations — Law of contracts.
    
    1. A by-law, adopted by a fraternal benefit association, which provides that a benefit certificate issued to a member shall be void and all benefits thereunder forfeited in ease the insured shall die by suicide, felonious or otherwise, sane or insane, is consistent with the purposes of the association and with its corporate charter, and imposes a reasonable condition upon which the parties to the contract may agree.
    2. Sluch a by-law, although adopted after the benefit certificate was issued to the insured and before the death of the insured by suicide, violates no vested right of the beneficiary.
    3. inhere a benefit certificate issued by a fraternal benefit association is silent in regard to suicide by the insured, hut the application therefor contains agreements, signed by the insured, to conform in all respects to the laws, rules and usages of the order then in force, or which might thereafter be adopted by the association, and that such compliance is the express condition upon which the insured shall be entitled to participate in the beneficiary fund, which application is made a part of the contract, and such benefit association afterwards and before the death of the insured adopts a by-law which provides that “the benefit certificate issued to a member shall be void and all benefits thereunder forfeited in case the insured shall die by suicide, felonious or otherwise, sane or insane,” such by-law thereby becomes a condition in the contract which, if broken by the insured, will defeat a recovery thereunder.
    (No. 8901
    Decided March 21, 1905.)
    Error to the Circuit Court of Ashtabula county.
    The plaintiff brought suit against The Protected Home Circle, alleging that the defendant entered into a written contract with his wife, Nell A. Tisch, the material parts.of which contract are as follows:
    MONTHLY PAYMENT.
    No. 15334. $.78 $1,000.
    The Protected Home Circle.
    SHARON, PENNA.
    
      Incorporated under the General Laws of the State of Pennsylvania, August 7, 1886.
    
    
      Benefit Certificate.
    
    
      This Certificate Witnesseth, That the Supreme Circle of the Protected Home Circle, in consideration of the representations and declarations made in the application of Nell A. Tisch, of Rock Creek, state of Ohio, for benefit membership therein, which application is filed in the office of the Supreme Secretary as part of this contract, and 78-100 dollars as the first monthly payment upon the same, on or before the delivery hereof, and a like amount to be paid by her to this Supreme Circle at the beginning of each month after the receipt of these presents, such payment to be made within thirty days after becoming due, and in case such payment is not made before the expiration of said thirty days this benefit certificate shall become null and void, and may not be thereafter revived except upon the filling out of and acceptance by the Supreme Accountant of a reinstatement blank furnished by the Supreme Circle, does promise and agree to pay to P. P. Tisch, husband, or the legal representatives of the member to whom this benefit certificate is issued the sum of one thousand dollars, pursuant to the provisions of the laws of the order governing the benefit fund and relating to the granting and payment of benefit certificates within ninety days after the receipt by the Supreme Circle of satisfactory evidence of the death of the member to whom this benefit certificate is issued, provided, always, that said member shall be in good standing in this order at the time of death. * * *
    
    I accept this certificate oh the conditions above named.
    Nell A. Tisch,
    
      Signature of Holder.
    
    Signed and delivered in our presence,
    C. E. Perris, President.
    
    H. L. Miller, Secretary.
    
    Rock Creek Circle No. 154, P. H. C.
    In witness whereof, the said Supreme Circle of the Protected Home Circle has caused its corporate seal to be hereunto affixed and these presents to be subscribed by its President and Secretary, at Sharon, Penna., this first day of August, A. D., one thousand eight hundred and ninety-four.
    (Seal of the Protected Home Circle)
    P. D. Stratton,
    
      Supreme President.
    
    J. W. Mason,
    (Local Circle Seal) Supreme Secretary.
    
    The petition alleged that the said Nell A. Tisch paid all dues according to the agreement and performed all other conditions to be performed by her, and at her death was in good standing in the order; that the plaintiff had made satisfactory proof of her death, and that more than ninety days elapsed after the delivery of the proof before the beginning of the-action, bnt that the defendant refuses to pay the sum due thereon; and asking judgment for the sum of one-thousand dollars with interest from December 20r 1900.
    The answer of defendant, after sundry admissions- and denials, alleges that it issued the said benefit certificate to the said Nell A. Tisch in consideration of the representations, declarations and statements contained in a written application of Nell A. Tisch, signed by her, which application is made a part of said benefit certificate and is so made by the terms of said application and by the terms of said benefit certificate; that the said application, among other things, contained the following agreement, to-wit: “I agree-to make punctual payment of all dues and monthly payments for which I may become liable and conform in all respects to the laws, rules, and usages of the order now in force or which may hereafter be-adopted by the same.” Attached to the report of the medical examiner and referred to and made part, of said answer was an agreement signed by. said Nell A. Tisch, which was in part as follows: “I do hereby agree that compliance on my part with-all the laws, rules, regulations and requirements,, now in force or that may hereafter be enacted by the association, is the express condition upon which I am to be entitled to participate in the beneficiary fund to the amount named in the constitution and laws of the association.” The said answer also-set out certain parts of the charter under which the-defendant was incorporated, as follows:
    “Article IV. The term for which said corporation shall exist shall be -unlimited.
    
      “Article V. Said corporation shall have power to institute a Supreme, and such State, District and Local Circles as may he deemed necessary in accordance with its constitution and laws; also to draft a constitution and laws for their government which shall determine the time, place and manner of the election of officers, their number, names and terms of service; the reception of members, their rights, privileges, obligations, duties, dues, fees and penalties; the right to control all funds raised for the prosecution of its work in accordance with its laws, to determine the qualifications of its own members, and also the right to have and use a common seal.
    “Article VI. The business, property and affairs of the said corporation shall be under the general control and management of a board of directors and such other officers as may be provided for in the bylaws, as provided in the act of assembly and to be chosen as therein provided.”
    And also the constitution and laws of the defendant which were in force at the date of the application by Nell A. Tisch as aforesaid, which are as follows:
    “Constitution and Laws or The Protected Home Circle.
    “ARTICLE I. COMPOSITION AND DIVISION.
    “Section 1. Composition. The Protected Home Circle shall be composed of all of its members, duly received and in good and regular standing.
    “Section 2. Division. This Order shall be divided into Supreme and Local Circles, whose powers, privileges, obligations and duties are set forth under their respective constitutions herein contained.
    “Constitution op the Supreme Circle.
    “ARTICLE II. NAME, JURISDICTION, POWERS, ETC.
    “Section 1. Name. This body shall be called The Supreme Circle of the Protected Home Circle.
    “Section 2. Jurisdiction. This Circle shall have jurisdiction over all such Local Circles as may be instituted through its influence, and governed by its laws, wherever located, and the term of its existence shall be perpetual.
    “Section 3. Powers. This Circle shall have power to institute such Local Circles as may be deemed necessary in accordance with the constitution. Also to draft constitutions and laws for their government, which shall determine the time, place, and manner of their meetings and the election of their officers; their number, name and terms of service; the reception of members, their rights, privileges, obligations, duties, dues, fees and penalties. The right to control all funds raised for the prosecution of its work in accordance with its laws; to determine the qualifications of its own members, and also the right to have and use a common seal.
    “Section 4.' Membership■. The membership of this Supreme Circle shall comprise the original incorporators, during their membership in the order, and such faithful Deputy Supreme Presidents and other members of the order as shall be chosen by a two-thirds vote of the members present at any annual meeting, together with such regular representatives as are provided for in section 5 of this article.
    
      “Section 5. Representatives. Each Local Circle comprising one hundred (100) or more beneficial members shall he entitled to send one (1) male representative to the Supreme Circle, who, when he has received the degree of protection according to the ritual adopted by this body, whose provisions are hereby made authoritative, and in which all of the official business of the Supreme Circle must always he transacted, shall he entitled to a seat in the Supreme Circle, participate in its discussions and have the same privileges as any other member of the Supreme Circle except tó vote for the officers and such amendments to the constitution as refer to the election of officers; and when he shall have served his Circle by his personal presence as its representative for three consecutive years he shall, by virtue of such service, become a member of the Supreme Circle with the same rights of voting, holding office, etc., as any other member or representative, except mileage and per diem..
    “ARTICLE X. BY-LAWS AND AMENDMENTS.
    ‘ ‘ Section 1. By-Laws. This Supreme Circle may, at any regular session, adopt such by-laws, rules of order and order of business as may he found necessary for its government and control, and change the same by a two-thirds vote of the members.
    “Section 2. Amendments. This constitution, and the constitution of Local Circles, may he altered or amended only by the Supreme Circle at a regular annual session. ’ *
    
    And that at the tenth regular and first biennial session of the Supreme Circle of the Protected Home Circle held in pursuance of the laws»of the Protected Home Circle in the city of Detroit, in the state of Michigan, on May 18, 19 and 20, 1897, section 13 of article 11 of the constitution and laws of the Protected Home Circle was amended so as to provide and read as follows:
    “article si. benefit certificates.
    “Section 13. Suicide. The benefit certificate issued to a member shall be void and all benefits thereunder shall be forfeited in case the insured shall die by suicide, felonious or otherwise, sane or insane, or by his own hand, sane or insane. Provided, that in such case there shall be refunded to the beneficiary named in said certificate the amount of all payments made, together with interest thereon at the rate of 3 per cent, per annum.”
    It was also alleged that the proofs of the death •of the said Nell A. Tisch, as submitted, signed and sworn to by the plaintiff and attending physician, show that her death was caused by a pistol shot fired purposely by herself, with suicidal intent.
    The reply of the plaintiff admits the proofs attached to the answer to be a correct copy, and admits that the suicide by-law, as set forth in the answer, was passed by the Supreme Circle at its meeting in Detroit in 1897 as alleged in the answer; admits that the death of said Nell A. Tisch was caused by a pistol shot fired by her own hand with suicidal intent, and denies every other allegation, and statement in the answer. For further reply the plaintiff says that when said Nell A. Tisch so fired said shot she was insane and irresponsible, and that at the time said application was made and said benefit certificate accepted by said Nell A. Tisch there was no rule, bylaw, or other provision of the Protected Home Circle making said certificate void if death should be by-suicide. It is also alleged in the reply that no notice or knowledge of any change or attempt to change the rules, by-laws or constitution of the defendant in regard to suicide or other matters mentioned was ever given the insured in her lifetime or to the plaintiff until after her death, and no consent or agreement to change said contract was ever given by the holder of said benefit certificate or by the beneficiary named in the same. It is also alleged in'the reply that at the meeting of the said Supreme Circle held in Canton, Ohio, May, 1895, which was after the issuing of said benefit certificate, said Supreme Circle changed section 2 of the constitution and laws of the Protected Home Circle mentioned in the answer to read as follows: ‘1 This order shall be divided into Supreme, Grand and Local Circles, whose power, privileges, obligations and duties are set forth under their respective constitutions herein named,” and changed sections 2, 3 and 5 of article 2, quoted in the answer, to read as follows:
    “Section 2. This Circle shall have jurisdiction over all such Grand and Local Circles as may be instituted through its influence, and governed by its laws wherever located, and the term of its existence shall be perpetual.”
    “Section 3. This Circle shall have power to institute such Grand and Local Circles as may be deemed necessary in accordance with the constitution.” (Balance of the section the same as quoted in answer.)
    “Section 5. Every Grand Circle shall be entitled to send one beneficial member as a representative to the Supreme Circle for the first five hundred members or less, and an additional representative for each additional one thousand members over and above.the first five hundred as shown by the books of the Supreme Circle on the fifteenth of December preceding the session of the Grand Circle, which representative shall have the same rights of voting, holding office, etc., as any other member of the Supreme Circle while serving as such representative; provided that after the membership of any Grand Circle’s jurisdiction reaches 5,500, the basis of representation over and above that shall be one additional representative for each additional 2,000 members; and provided this amendment does not change the relation of any who are already members of the Supreme Circle.
    “Section 7. Representation in the Grand Circle. Every Local Circle within the jurisdiction of a state, province or territory, and comprising twenty-five or more beneficial members, shall be entitled to send one representative to the Grand Circle and one additional representative for each additional one hundred members above the first hundred, such representative to be a beneficial member.”
    It was also alleged that the Supreme Circle which met at Detroit in May, 1897, and which passed the suicide by-law, was entirely composed and made up in accordance with section 4 as quoted in the answer and section 5 as changed at Canton and not according to said section as it was then said benefit certificate was issued. Also that by the terms of article 5 of the charter of said association, the power to enact constitutions and laws for the government of all circíes instituted by said association is vested in the corporation, and that at the time said application was made and said benefit certificate was issued and accepted by said Nell A. Tisch, and at all times since said date the corporation has been composed of all its members duly received and in good and regular standing. It is denied in the reply that any amendment to the laws, rules, regulations or usages of the defendant in regard to suicide was ever made, passed or adopted by said corporation in any other way or manner than as stated in the answer.
    The defendant demurred to the reply for the reason that the facts stated therein are not sufficient in law to constitute a defense to the answer of the defendant. This demurrer was sustained by the court of common pleas, and the plaintiff not desiring to plead further, and both parties waiving a jury, the cause was submitted to the court upon the pleadings and the exhibits attached thereto, viz., the benefit certificate and the application and without any further evidence. On consideration of which the court found the issues joined in favor of the defendant and that the plaintiff is not entitled to recover thereon any other amount than the amount paid by her upon said certificate, with interest at three per cent, to-wit: the sum of eighty-five dollars, and rendered judgment , accordingly.
    Motion for a new trial was made and overruled, and a bill of exceptions taken, and upon a petition in error in the circuit court the judgment of the common pleas court was affirmed, and this proceeding is prosecuted to obtain a reversal of the judgments of both the lower courts.
    
      
      Mr. A. C. White, attorney for plaintiff in error.
    The plaintiff contends—
    1. That, under the charter of this society, and the law of the state under which it is organized, the Supreme Circle had no power to enact such a by-law.
    2. The by-law could not work a forfeiture of this contract because the member never knew of the bylaw nor consented to it.
    3. The by-law, if intended to apply to contracts made before its enactment, is unreasonable, inconsistent with the law of the state, and void.
    4. This by-law cannot operate retroactively as it does not clearly indicate that such was the intention of the body enacting it.
    5. No forfeiture was declared or premiums returned.
    By the charter the power to pass by-laws is vested in the corporation, not in the Supreme Circle, which is only a creature of the corporation. There is nothing in the charter which gives the Supreme Circle any power whatever to manage or control the business affairs of this corporation. This authority so vested by the charter cannot be delegated.
    Unless delegated by the charter to a select body, the power to make by-laws resides in the body of members themselves and is to be exercised by the majority. Bacon on Mutual Benefit Societies, sec. 80; Morawetz on Corporations, sec. 491; Beach on Private Corporations, 311, 421; Thompson on Corporations, 955-960.
    In this case the power is not delegated but is specifically declared to be vested in the corporation. The Knigths of Pythias v. La Malta, 31 S. W. Rep., 493 (30 L. R. A., 838); Accident Association v. Wind-
      
      over, 137 Ill., 417; Railroad Co. v. Hatch et al., 12 Dec. Re., 501; 1 Disn., 94.
    The Supreme Circle is the mere agent of this corporation, created by the corporation, having no power to pass by-laws relating to contracts made by it in behalf of the corporation. Knights of Pythias v. Stein, 37 L. R. A., 775; Knights of Pythias v. Trebbe, 74 Ill. App., 545; Knights of Pythias v. McLennan, 171 Ill., 417; Knights of Pythias v. Kutscher, 72 Ill. App., 462; Tempel v. Dodge, 32 S. W. Rep., 514; Joliffe v. Mutual Ins. Co., 39 Wis., 111; Insurance Co. v. Bachman, 39 W. L. B., 324 (affirmed by the Supreme Court without report, April 2, 1898).
    The contract sued upon in this case is one of simple life insurance. The fact that the defendant is a fraternal society does not affect in any degree the obligations of the parties in respect to this contract. Bacon on Mutual Benefit Societies, secs. 51, 78 and 162; Commonwealth v. Wetherbee, 105 Mass., 149; Rochhold v. Benevolent Soc., 129 Ill., 440; State v. Life Assn., 38 Ohio St., 288.
    By the charter the Supreme Circle had no power to enact this by-law, and the courts will not lend their aid to support this usurpation of authority. Bacon on Mutual Benefit Societies, sec. 71; Bauer v. Samson Lodge, 102 Ind., 262; 2 Am. & Eng. Ency. Law, 174.
    Counsel for defendant have heretofore claimed, and will doubtless still contend that the Supreme Circle is the corporation. This claim is inconsistent with the terms of the charter and laws under which the society is organized, and inconsistent with the constitution adopted by the corporation at its beginning and which has ever since been part of its constitution.
    By the terms of this charter the Supreme Circle is a creature of the corporation, instituted by the corporation, and subject to the constitution and laws enacted by the corporation for its government.
    The relation which the Supreme Circle bears to the corporation is more analogous to a board of control ; and that is more nearly in accord with the charter, and with the law of the state of Pennsylvania, which contains . the following: Such corporation shall have power “to carry on its operations through supreme and subordinate bodies or lodges and to issue beneficiary or relief certificates in accordance with its constitution and general laws.”
    By the authorities already cited it is established that boards of control and boards of directors have no power to enact by-laws, and in this law of Pennsylvania that power is vested in the corporation.
    It is contended by the defendant that the charter, constitutions and laws governing this society are part of the contract; that Nell A. Tisch, when she became a member was presumed to know them and that she and her beneficiary were bound by them.
    If she was presumed to know the power and rights conferred by this charter and the laws then in existence, she was equally presumed to know the limitations upon the powers and rights of the Supreme Circle, and also the extent and nature of the powers reserved to the corporation and to have contracted, in pursuance of the same.
    When Mrs. Tisch became a member and received the benefit certificate all of the rules and regulations governing the insurance feature of this association were known and named in its manual as “Laws of General Application.” This is in accordance with the act under which the charter is granted, which provides that the corporation shall have power “to make a constitution and general laws for the management of its affairs,” etc. The charter provides that the corporation shall have power “to draft a constitution and laws” which shall determine the matters mentioned.
    It is to be presumed that the word “constitution” as used in the state law, in the charter, and in said article X of the constitution of the Supreme Circle, is used in the same sense in all places and does not refer to the “Laws of General Application.” Beals v. Rubber Co., 11 R. L, 381. The words “general laws” in the act of the legislature, and “laws” in the charter, cannot be treated as mere surplusage.
    There never v/as any other article, section or law giving the Supreme Circle the right to make, amend or alter constitutions or laws, except the above •mentioned article X; and section 1 of that article, the only one relating to by-laws, does not pretend to confer upon the Supreme Circle power to pass any "by-laws except for its own government and control.
    It is claimed that this is a contract between the Supreme Circle and Nell A. Tisch as shown by the face of’the benefit certificate.
    The certificate admits of no such construction when read in the light of the charter and the state law under which the charter is granted which are part of the contract. The Supreme Circle is merely the agency through which the business operations are carried on as provided by law, which gives the corporation power—
    
      “(XI.) To carry on its operations through, supreme and subordinate bodies or lodges and to issue beneficiary or relief certificates in accordance with its constitution and general laws.”
    By a co-ordinate section of this same law, quoted above, the power to make a “constitution and general laws” is vested in the corporation; and the agent employed must operate according to “such constitution and general laws;” and in this certificate the Supreme Circle agrees to pay “pursuant to the provisions of the laws of the order.”
    The section just quoted confers the power to issue certificates upon the corporation, and this certificate is entitled “The Protected Home Circle, * * # benefit certificate,” and bears the seal of the corporation.
    If it be true that Mrs. Tisch was presumed to know of by-laws enacted while she was a member the presumption exists only as to valid by-laws; those passed by the proper authority, reasonable, and such as the society had the right to 'enact, and which were applicable to her membership. She was not presumed to know nor bound to notice any other. So that before any argument can be predicated upon the fact that she did not complain, it must be established that the by-law is valid and applicable to her membership. Silence cannot be construed as a consent to the change. Hamilton Ins. Co. v. Hobart, 2 Gray, 543.
    In the same opinion it is said that beneficiary associations resemble mutual insurance companies in regard to their methods of government and operation. Section 3690, Revised Statutes of Ohio.
    
      The suicide hy-law cannpt affect the contract with Nell A. Tisch because she never knew of it or assented to it.
    It is claimed that, by the agreement contained in the medical examiners’ report, she is bound by subsequently enacted by-laws without notice.
    It will be observed that by this agreement she is only to be bound by the “rules, laws and regulations enacted by the association. ’ ’ She does not agree to be bound by new rules or laws, without notice of them, or by-laws passed by anybody but the association.
    Furthermore we contend that that agreement has nothing to do with the rights of the plaintiff under this contract. It is not referred to in the benefit certificate nor in the laws which form a part of the contract. That agreement, as well as similar language used in the application, refers only to rules and laws regulating the fraternal membership or good standing of the member, and cannot be construed as agreeing to the interference with her contract rights without notice. Besides if it is construed to apply to contract rights it only affects the rights of the member personally under the disability clause of the certificate, and does not affect the beneficiary. Forfeitures are strictly construed. Webster v. Insurance Co., 53 Ohio St., 558; Starling v. The Royal Templars, 66 N. W. Rep., 340; Seiverts v. National Benefit Association, 64 N. W. Rep., 671.
    The same holding was made by the New York court of appeals in Kent v. Quicksilver Mining Co., 78 N. Y., 159; Morrison v. I. O. O. F. Ins. Co., 18 N. W. Rep., 13; Becker v. Farmers’ Mutual Ins. Co., 12 N. W. Rep., 874; Gaut v. American Legion of Honor, 
      55 L. R. A., 465; Wheeler v. Iron Hall, 68 N. W. Rep., 229; Cox v. Farmers’ Mutual Assur. Assn., 48 N. J. Law, 53; Strauss v. Mutual Reserve Fund, 54 L. R. A., 605; Hale v. Equitable Aid Union, 168 Pa. St., 377 (31 Atl. Rep., 1066); May on Insurance, sec. 552; see especially 29 Am. St., 903, where this question is discussed; Bacon on Mutual Benefit Societies, sec. 85; Bragaw v. Knights of Honor, 54 L. R. A., 602; Rosenberger v. Washington Fire Ins. Co., 87 Pa. St., 208; Bradfield v. Union Mutual Ins. Co., Berryman’s Dig., 859; American Legion v. Smith, 45 N. J. Eq., 466; Becker v. Beneficial Soc., 144 Pa. St., 232.
    The suicide by-law, if applied to previously issued certificates, is unreasonable, inconsistent with the law of the state and inimical to the common law of the land. Weber v. Knights of Maccabees, 172 N. Y., 490; Parish v. Produce Exchange, 169 N. Y., 34; Tebo v. Royal Arcanum, 93 N. W. Rep., 513; Thibert v. Knights of Honor, 81 N. W. Rep., 220; Beach v. Knights of Maccabees, 177 N. Y., 100; Langan v. Legion of Honor, 174 N. Y., 266; Bacon on Mutual Benefit Societies, sec. 116; Grant v. American Legion of Honor, Tenn.
    What right of Nell A. Tisch or of this beneficiary did the suicide law tend to preserve? None whatever. The monthly dues or premium was not reduced after the law was passed. This is not an assessment company in which the cost of insurance depends upon the death rate of its members. This bylaw could have no effect whatever upon her contract except to destroy it.
    By-laws, to be part of the contract, must be consistent with its validity. Davidson v. Mutual Ben. 
      
      Soc., 39 Minn., 303; Luthe v. Insurance Co., 55 Wis., 543 (13 N. W. Rep., 490); Fry v. Insurance Co., 31 Fed. Rep., 197; Morrison v. Insurance Co., 18 N. W. Rep., 13; Wiberg v. Relief Assn., 73 Minn., 301; Brewer v. Insurance Co., 14 Gray, 203.
    If this by-law had been in existence at the time this certificate was issued and the certificate had in terms insured against suicide, the by-law would not have been part of the contract. This certificate, though not expressly, did insure against suicide. Can a subsequently enacted by-law be more potent to destroy a contract right than one existing when the contract was made? The power reserved to enact by-laws to preserve the contract rights of members cannot be extended by implication into a power to destroy them. Nor does the rule seem to me consistent and reasonable that one, who, by reason of insanity, has no power to make a contract —has power to destroy one.
    But they say there were no vested rights under this certificate. Any contract right is a vested right even executory. Fletcher v. Peck, 6 Cranch, 87; 8 Ill., 241; Butler v. Palmer, 1 Hill (N. Y.), 325-335; Cochran v. Van Surlay, 20 Wend., 381; Varick v. Briggs, 6 Paige, 332; Beadleston v. Sprague, 6 Johns., 101.
    Here is an absolute, executory, vested right to have this payment made according to the laws existing when the promise was made. Langan v. Legion of Honor, 174 N. Y., 266, supra.
    
    The suicide by-law cannot be regarded as retroactive in its operation. 8 Ill., 241; Carnes v. Association, 76 N. W. Rep., 683; Benton v. Brakemen, 146 Ill., 570; Templars, etc., v. Jarman, 104 Fed. Rep., 638; Pulford v. Fire Department, etc., 31 Mich., 458; 14 Am. St. Rep., 94; 18 Ill.; Knights v. Jarman, 187 U. S., 197.
    All laws that provide for a forfeiture, suspension, or abridgment of the rights of a member of a beneficiary society are to be strictly construed against the society. Webster v. Insurance Co., 53 Ohio St., 558; West v. Insurance Co., 27 Ohio St., 1; Folmer’s Appeal, 87 Pa. St., 133; Berlin v. March, 82 Pa. St., 166; Knights v. Abbott, 82 Ind., 1.
    No forfeiture of this certificate was declared by the association or by the Supreme Circle, and no return of premiums was offered.
    The insurance contracts of the defendant are in all respects similar to those made by other mutual companies. The forfeiture provided for in the suicide by-law could not take effect or render this certificate void without the action of the association and a repayment to the beneficiary of all premiums with three per cent, interest. Mutual Life Ins. Co. v. French, 30 Ohio St., 240.
    No such action was ever taken by the society, or by the Supreme Circle, and no payment or offer of payment of the premiums and interest was ever made to the beneficiary in the amended answer filed in this cause. A tender in the answer is not sufficient. Tipton v. Tipton, 49 Ohio St., 364; Simmons v. Green, 35 Ohio St., 107; Armstrong v. Spears, 18 Ohio St., 373; Fike v. France, 12 Ohio St., 624.
    
      Mr. A. W. Williams and Messrs. Perry & Roberts, attorneys for defendant in error.
    The rights of the parties to this action are to be' governed and controlled by the terms of the contract between them. This contract is found in the constitution of the defendant association, the application and agreement upon admission thereto, and the benefit certificate thereafter issued. Finch in Hallenberg v. I. O. of B. B., 94 N. Y., 584; Sanger v. Rothschild, 123 N. Y., 579; Sabin v. Phinney, 134 N. Y., 428; Masonic Mut. Beneficial Society v. Burkhart, 110 Ind., 192; Knights of Pythias v. Knight, 117 Ind., 489; Bacon on Benefit Societies, sec. 161; Elstner v. Insurance Co., 12 Dec. Re., 703; 1 Disn., 412.
    Did the association have the right to contract against liability in case of suicide, sane or insane?
    While we are not aware that this precise question has been passed upon by this court, we apprehend that the law is well settled that an insurance company may so limit its liability. It is a matter of contract between the insured and the insurer. Many policies limit liability to certain kinds of accidents and causes of death, the validity of which are not questioned. Insurance Co. v. Maguire, 10 Circ. Dec., 562; 19 C. C. R., 502; Aetna Life Ins. Co. v. Dorney, 68 Ohio St., 151; De Gogorza v. Life Ins. Co., 65 N. Y., 232; Travelers’ Ins. Co. v. McConkey, 127 U. S., 661; Tritschler v. Benefit Association, 180 Pa. St., 205; Kerr on Insurance, 337; Richards on Insurance, 209; May on Insurance, 380; Beach on Insurance, 911; Bacon on Benefit Societies, sec. 336.
    Did the Supreme Circle have power to pass the suicide amendment, was it reasonable and did it apply to Nell A. Tisch and her beneficiary?
    The power to amend was as much a part of the contract entered into between the parties, as any other provision of the benefit certificate sued upon.
    
      We submit that if it be possible for a member of a beneficial order to consent to future amendments to its laws, such consent is disclosed by tbe record in this case, and again, if tbe laws in force at tbe date of tbe application are binding. upon tbe member, section 2 of article X made adequate provision for amendments. We desire to suggest that by section 2 of article X, above quoted, tbe Supreme Circle is tbe only body that bad power to alter or amend tbe constitution, and that right could only be exercised at a regular annual session. This law was in full force at the date of the application of Nell A. Tisch, and when the Supreme Circle issued, to her the benefit certificate it reserved to itself the right to amend the constitution and bylaws in conformity to the provisions of this section, and in the application signed by Mrs. Tisch, she expressly agreed to be bound by the exercise of this power. Poultney v. Bachman, 31 Hun, 49; Hutchinson v. Supreme Tent, etc., 68 Hun, 355; People ex rel. Goett v. Grand Lodge, 32 Misc., 528.
    There is no question made in this record but that the suicide amendment was passed as alleged in the answer, the contention of the plaintiff in error being that the Supreme Circle had no power to amend the by-laws and that it is therefore not binding upon Nell A. Tisch or her beneficiary. In so claiming the plaintiff ignores section 2 of article X of the constitution above quoted and relies on a close, technical construction of article 5 of the charter, which says that the corporation shall have power to draft a constitution and laws, etc. And therefore argues that the Supreme Circle had no such power.
    
      It is evident from a perusal of the pleadings and the exhibits attached thereto, that the defendant is indiscriminately referred to as, “The Corporation,” the “Association,” “The Order,” “The Protected Home Circle,” and “The Supreme Circle,” and that evidently no distinction, in a technical sense, is intended when reference is made to the corporation as drawing a line of demarkation between it and .the Supreme Circle, the association that adopted the suicide amendment.
    In a mutual benefit society, a substantial compliance with its by-laws is sufficient, and strict performance is not required. Earley v. Earley, 13-23 O. C. C., 618.
    We submit that the suicide amendment is clearly within the powers granted to the Supreme Circle, that the whole question was, by the constitution, placed in its hands; that section 3, article 2, above quoted, makes the Supreme Circle the legislative and governing body of the corporation.
    This is a beneficiary association, organized with the contemplation, presumably, of thousands of members, scattered over many states. If the corporation be composed of all certificate holders it would not be feasible or possible to get them or any considerable number of them present as stockholders to legislate for the corporation or to get an expression from the members which would reflect their sentiment or desire as a whole. The only reasonable and possible scheme of government of such a society is by delegated power, to representatives as in this society. The Local Circles speak by their representatives through Grand to the Supreme Circle. The whole organization graduating through different Circles to the Supreme, in which is vested the ultimate power and control and which in a representative way is composed of all the members. It is not something apart from the corporation, but is that form of it in which the legislative power is reposed. •
    It is clear that there is nothing unreasonable in the amendment here complained of, as the defendant association, if its experience has shown that it was for the best interests of its members that it protect them against the payment of suicide claims, would have the undoubted right to incorporate such provision in its constitution and laws. Society v. Burford, 70 Pa. St., 321; Supreme Tent v. Hammers, 81 Ill. App., 560; Bigelow v. Insurance Co., 93 U. S., 284; DeGogorza v. Insurance Co., 65 N. Y., 232; 3 Am. & Eng. Ency. Law (2 ed.), 1064; Supreme Com. v. Ainsworth, 71 Ala., 436; Ritter v. Insurance Co., 169 U. S., 139; Knights of Pythias v. La Malta, 95 Tenn., 157; Hughes v. Life Ins. Co., 98 Wis., 292; State ex rel. v. G. L. A. O. U. W., 70 Mo. App., 456; Daughtry v. Knights of Pythias, 48 La. Ann., 1203; Bogards v. Mutual Ins. Co., 79 Mich., 440; Knights of Pythias v. Knight, 117 Ind., 498; Hobbs v. Association, 32 Ia., 107; West v. Grand Lodge, 14 Tex. App., 471; Stohr v. Association, 82 Cal., 557; Fullenwider v. Royal League, 73 Ill. App., 322; Niblack on Benefit Societies (2 ed.), secs. 25, 26 and 27; Knights of Pythias v. Clarke, 88 Ill. App., 600.
    Is the suicide amendment in any sense retroactive or is it subversive of vested rights ? Bacon on Benefit Societies, sec. 91a; Poultney v. Bachman, supra; Sanger v. Rothschild, supra; Brown v. Catholic Mu
      
      tual Benefit Association, 33 Hun, 263; Boasberg v. Cronan, 30 N. Y., 483; St. Patrick’s Male Society v. McVey, 92 Pa. St., 510; 3 Am. & Eng. Ency. Law (2 ed.), 1064.
    These authorities would seem to be conclusive and fully sustain the contention of the defendant. Wist v. Grand Lodge, 22 Ore., 271; Association v. Tuttle, 87 Ill. App., 309; Bagley v. Grand Lodge, 131 Ill., 498.
   Davis, C. J.

The plaintiff sues upon a contract which was entered into by and between The Supreme Circle of the Protected Home Circle and Nell A. Tisch, the plaintiff’s wife, alleging it to be a contract with The Protected Home Circle, a fraternal benefit society incorporated under the laws of the state of Pennsylvania. He is therefore precluded from claiming that the acts and declarations of the Supreme Circle, which may - affect this contract, are not the acts and declarations of the corporation; for, if the Supreme Circle may manage the business and property of the corporation, notwithstanding article 4 of the charter, it is not very clear why it may not control the affairs of the corporation under both article 5 and article 6 of the charter. Moreover the Supreme Circle is constituted a body representing the whole membership of the corporation, and for that reason alone, if the power were not expressly conferred, it might legislate within the charter powers of the corporation, as to “the reception of members, their rights, privileges, obligations, duties, dues, fees and penalties.” It is provided also in the constitution of the Protected Home Circle (article 10, section 1), that “this Supreme Circle may, at any regular session, adopt such hy-laws * * * as may he found necessary for its government and control, and may change the same hy a two-thirds vote of the members.” Thus having full power to do so, the Supreme Circle did enact a by-law which declares that a benefit certificate issued to a member shall he forfeited in case the insured shall die by suicide. In view of the adjudications upon the subject, there is scarcely room to dispute the proposition that such a by-law is both consistent with the charter of the organization and reasonable. Supreme Tent of Knights of the Maccabees v. Hammers, 81 Ill. App., 560; Bigelow v. Insurance Co., 93 U. S., 284; Be Gogorza v. Life Ins. Co., 65 N. Y., 232; Travelers Ins. Co. v. McGonkey, 127 U. S., 661.

The plaintiff, however, insists that it does not appear that the member upon whose application this certificate was issued, ever consented to or knew of the existence of this by-law, and for that reason the by-law cannot apply in this case. The contract which is the foundation of this action is expressly made in consideration of the representations and declarations made in the application, which application, it is stated, is filed in the office of the supreme secretary as part of the contract. 'In that application Mrs. Tisch agrees to conform in all respects “to the laws, rules and usages of the order now in force or which may he adopted hereafter.” She also signed an agreement, which appears in the medical examiner’s report, to the same effect and as “the express condition” upon which she was to he entitled to participate in the beneficiary fund. Having entered into such an explicit agreement with reference to by-laws subsequently to he made, and being a voting member of a local circle wbicb was presumably represented in the supreme circle, she must be held to have had that knowledge of this by-law which she well might have had, and inasmuch as she never, so far as appears, in any manner objected thereto, she must be regarded as consenting to it, both in person and by her representatives in the Supreme Circle.

But the plaintiff also contends that the by-law, having been enacted after the benefit certificate was issued to Nell A. Tisch and before her death, could not deprive the beneficiary of his rights as they existed when the certificate was issued. That proposition might prevail if the contract of the parties had not read into the certificate all of “the laws, rules and usages” then enacted and in force or which might thereafter be adopted. But a subsequently enacted by-law should not be permitted to impair rights which have already vested under the contract. The by-law which is the subject of the controversy in this case is as follows: “The benefit certificate issued to a member shall be void and all benefits thereunder shall be forfeited in case the insured shall die by suicide, felonious or otherwise, sane or insane, or by his own hand, sane or insane. Provided that in such case there shall be refunded to the beneficiary named in said certificate the amount of all payments made, together with interest thereon at the rate of three per cent, per annum.” This bylaw applies to all benefit certificates issued, whether past,'present or future; but if at the time of its passage the death of a member holding a benefit certificate had already occurred it is clear that the certificate could not be forfeited under this by-law, because the right of the beneficiary to the fund had accrued and he already had the vested right to sue for and recover the money due under the contract. But prior to the death of the insured, what enforceable rights can accrue to the beneficiary? That is the question which is presented in this case. The insured may acquire rights in his or her lifetime which may be protected by law; but before the death of the insured the contract is, in general, executory as to the rights of the beneficiary. It may be rescinded by the parties or it may be defeated by failure of the insured to perform. Mrs. Tisch lived more than three years after this by-law was enacted, and then, as it is conceded, shot herself with suicidal intent. There was no condition on the part of the association which had become absolute in her lifetime and which was countervailed by the by-law and we can discover no vested right of the beneficiary, the plaintiff in this action, which has been violated. Supreme Commandery of the Knights of the Golden Rule v. Ainsworth, 71 Ala., 436; Supreme Lodge K. of P. v. LaMalta, 95 Tenn., 157; Supreme Tent of Knights of the Maccabees v. Hammers, 81 Ill. App., 560; Benton v. Brotherhood of Railroad Brakemen, 146 Ill., 570.

It has been suggested that Weber v. Supreme Tent of Knights of the Maccabees of the World, 172 N. Y. 490, is an authority against the views stated here. We do not think so. When the insured in that case took out his policy the rules of the association and the contract provided that the contract should be void if the insured committed suicide within one year, whether sane or insane. It appears in the opinion by Parker, C. J., that “long subsequent to the taking ont of the policy ’ ’ and ‘ ‘ after the lapse of a year from the making of the contract, ’ ’ and while the insured was still living, the by-laws were amended so as to provide that if the insured should commit suicide within five years from the time of admission into the order, whether sane or insane, the contract should be void. It was held that such an extension of the time, after the lapse of the original contract period, was a deprivation of vested rights. The facts of this case are obviously different.

It is also urged in behalf of the plaintiff in error that the certificate has not been declared forfeited by the association, and that no return of premiums was offered. That point is disposed of by Ohio Farmer’s Ins. Co. v. Wilson, 70 Ohio St., 354. The language of the by-law is: ‘ ‘ The benefit certificate issued to a member shall be void,” etc.; and judgment was entered in the court of common pleas against the association, by confession, for the amount of payments made under the certificate, with interest thereon at the rate of three per cent, per annum. The judgment of the circuit court is

Affirmed.

Shauck, Price, Crew and Spear, JJ., concur.  