
    Kaiser v. Kaiser.
    
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed, June 28, 1886.)
    
    "1. Benevolent associations—Designation op beneficiary—Interpretation OF WORD “HEIRS ” IN DESIGNATION OF BENEFICIARIES.
    Plaintiff was married to deceased in 1869, who became a member of a mutual relief association in 1883, which was to pay a fund to the designated beneficiaries of its deceased members. In the application to become a member he designated as the beneficiaries “my leagal heir os." He died 1884, leaving a will which contained among other things the following: “I do hereby designate my said wife to be the person to whom the money and benefits accruing from the said Mutual Relief Association of New York upon my death be paid.” Held, that although the word “heirs,” as it is generally understood, means and includes only next of kin or relations by blood, and excludes the widow, yet it may include other than blood relations where the intention that it should is shown.
    Same—Construction of constitution and by-laws.
    There was no prescribed form of application for membership, and the constitution of the association simply required that the beneficiary “be designated,” without further limitation, and provided for cases where no designation had been made bj- the member: Held, that the designation intended by the deceased was his wife and children.
    Appeal from an order of the general term of the city ■ court, reversing a judgment in defendant’s favor, entered upon findings made at the trial term of that court, after a trial therein by the court without a jury.
    
      
       See 3 How. (N. S.), 104.
    
   Bookstaver, J.

This action was originally brought by the plaintiff against the Mutual Relief Association of the •city of New York, to recover a benefit fund of $994.15, payable by said association under its constitution upon the death of a member, and the defendant was interpleaded as ,a rival claimant. The plaintiff is the widow of Solomon W. Kaiser, deceased. He left no children, father, mother, brother or sister him surviving, except the brother who was made defendant in this action by interpleader. The plaintiff was married to the deceased in 1869. In February, 1882, he became a member of the Mutual Relief Association, the objects of which, as far as material to this case, were to pay a fund to the designated beneficiaries of its deceased members.

At the time he made application to become a member of the association he designated as the beneficiaries to whom the fund, in his case was to be paid after death, “my leagal heiros.”

He died on the 28th of September, 1884, leaving a last will and testament, dated the 26th of January, 1884, which was duly admitted to probate as a will of personal estate "by the surrogate of the county of New York, that being the proper county.

By said will deceased bequeathed all of his personal property to his wife (the plaintiff), including all benefits which should become due and payable from the before mentioned association; and the will, among other things, contained "the following : “I do hereby designate my said wdfe to be the person to whom the money and benefits accruing from the said Mutual Relief Association of New York, upon my death, shall be paid.” The deceased, by his will, appointed his wife sole executrix thereof.

From the testimony it appears he left no property whatever, and no other provision for the widow than the above. His brother, at the time he became a member of the association, lived in Europe, and, as far as appears from the case, never levied in this country.

The plaintiff claims the fund as the “designated beneficiary ” of her husband, having been so designated by his will. The defendant claims it as the sole legal heir of "his brother, under the term, “my leagal heiros,” used in the brother’s designation made in his application for membership of the association.

The learned justice, at trial term, was undoubtedly right in the meaning he attached to the phrase “legal heirs,” as used among those learned in the law, and in fact as it is generally understood among educated people. It includes only next of kin or relations by blood, and excludes the widow. In Tallman v. Davis et al. (95 N.Y., 17), the court of appeals so held, but after so holding the court says : “The primary object of all construction of will is in each case to .ascertain the intention of the testator, and to give effect to that within the rules of law. The word “heirs,” “next •of kin,” maybe so used, in association with other language .and under such circumstances, as to show an intention to include others than blood relations.” And we think the same rule should be applied to a case like the present.

Whom did the deceased really intend to designate by his. “legal heirs,” in his application for membership to the association ? He had no near relative by blood, except the defendant, of whom his wife then knew nothing, who was living in Europe, and with whom there seems to have been but little intercourse. As far as appears, the deceased was on the most cordial terms with his wife, whom he had married more than twelve years before; he had a child by her, which was then dead, and he might reasonably expect others; and in fact one was born to them after he became a member-of the association, and he had no other provision to make for his family than that finnished by this association. He was a foreigner and presumably not well acquainted with our language, he certainly was illiterate, as appears by his spelling the words, legal hens (leagal heiros); and finally, in his will, he calls the plaintiff, “his beloved wife,” gives, her all his personal estate, including this benefit, to the exclusion of his brother, even if his wife should not outlive him, and makes her sole executrix of his will. We think all this entirely inconsistent with the theory that he used the phrase, “legal heirs,” in its ordinary acceptation; but we-think that he intended thereby to designate his wife and children, if he should leave any; and this is the meaning often attached to the phrase by the unlearned, especially when only personal property is concerned.

From this view of the case, it follows that his wife was. the beneficiary he really intended to designate in his application for membership, and that the after designation of her in his will, was only to make it more definite and certain.

But if we are mistaken in this, we think the judgment of the general term of the city court should be affirmed, for, while the by-laws of the association require that application for membership shall be made in a prescribed form, no form is prescribed by the by-laws themselves. One was printed and in use by the association, but how this came to be used does not appear. Although this contains a form of designation in the body of the instrument, neither the constitution nor the by-laws require that the person or persons, designated as beneficiaries shall be approved by the association, nor do they forbid a revocation of a designation once made; nor do they require that the designation shall be made in any particular way or at any particular time. In this respect the case is very much like Burton v. Provident Mutual Relief Association (5 East. Rep., 7), and differs from Hellenberg v. District No. 1 (94 N. Y., 580), when the-designation was required to be made to the lodge prior to the degree of the member. In this case the constitution simply requires that the beneficiary or beneficiaries should “be-designated ” without further limitation, and indeed it goes on to provide for cases where no designation has been made by the member, clearly showing that a designation was not necessary in an application for membership.

In the case last cited the court implies a designation by will would have been good but for the by-law requiring a formal designation to the lodge prior to the decease of the member. No such by-law exists in the case of the Mutual Relief Association of New York.

We therefore think the judgment of the general term should be affirmed, and judgment absolute entered in favor •of the plaintiff and against the defendant, with costs, under the stipulation in the case.

Allen, J., concurring.  