
    The Supreme Council Catholic Benevolent Legion v. McGinness. McGinness v. The Supreme Council Catholic Benevolent Legion.
    
      Beneficial corporation — May not issue benefit certificates to one not dependent on member, when — Petition to recover on certificate, must show plaintiff dependent on deceased member — Lost certificate — New certificate issued with different payees, invalid when.
    
    1. A beneficial corporation, whose charter provides that its particular business shall be to afford material aid to its members and their dependents by establishing a fund for the relief of sick and distressed members, and a benefit fund, from which, on the death of a member, a sum not exceeding $5,000 shall be paid to the'family or dependents of such member, is not authorized to issue a benefit certificate providing for payment to one not dependent upon such deceased member.
    2. A petition in an action against such a corporation, brought to recover upon a benefit certificate, in which the plaintiff is described simply as a brother of the deceased member, and containing no allegation showing that such brother was, in any way, dependent upon the deceased member, is bad on demurrer, and will not support a judgment.
    3. Where such a corporation has issued a benefit certificate to a member payable upon his decease to his wife, and afterward, acting upon a mistaken belief induced by the representation of the member, that such certificate has been lost, issues and delivers to the member a second certificate for a like amount, payable two-thirds to the wife and one-third to a person who is a brother of the member but not a dependent, such second certificate will be held invalid and the first be given full force and effect.
    (Decided January 31, 1899.)
    
      Error to the Circuit Court of Cuyahoga county.
    Louisa McGinness, by her petition filed in the common pleas of Cuyahoga county, charged that the defendant, a New York corporation doing business in Ohio, and formed for social, benevolent and intellectual improvement, and to afford moral and material aid to its members and their dependents by establishing a fund for the relief of sick and distressed members, and a beneficial fund from which, on satisfactory evidence of the death of any member who ,shall have complied with all of its lawful requirements, a sum not to exceed $5,000 may be paid to the family or dependents of such member as he shall have directed, did on the first day of March, 1887, for a valuable consideration, execute to Henry F. McGinness, a member, its benefit certificate numbered 11,240, whereby it agreed to pay out of its benefit fund to Louisa McGinness, wife, a sum not exceeding $3,000 according to the provisions of law governing said fund, upon the death of said Henry. Said Henry died on the twenty-fourth of April, 1894. He was then a member in good standing. The plaintiff is the widow, and at the time of the death of Henry was dependent on him for support. Said Henry, in his lifetime, did not substitute any other beneficiary to reduce the amount of the benefit provided for and agreed to be paid. All conditions to be performed by said Henry were performed by him, and plaintiff has made due proof of loss and performed all conditions on her part to be performed. Judgment for $3,000 was prayed for.
    Thereupon the Supreme Council filed an affidavit of interpleader, averring among other things, that on the third day of February, 1894, said Henry made application to defendant to change the beneficiary from Louisa McGinness to Louisa McGinness two-thirds, and John T. McGinness, one-third, pursuant to the laws of defendant. Thereupon defendant reissued said certificate, but by it agreed to pay Louisa McGinness two-thirds, or $2,000, and to John T. McGinness one-third, or $1,000, which was accepted by Henry, and was in full force at his death. Without collusion with defendant, John T. McGinness now makes claim to $1,000 under said policy last mentioned, while plaintiff claims the entire $3,000. That defendant is ignorant of its rights, as between the claimants, but is willing to pay or deposit the $3,000 as the court may direct and offers to do so in order that claimants may interplead.
    Thereupon John T. McGinness appeared for the purpose only of testing the interpleader, and demurred to the affidavit. This demurrer was overruled by the court and John T. took leave to answer. The money was ordered paid into court which was done. At a subsequent term, on motion of John T., the order made as to interpleader was set aside and his demurrer sustained.
    Thereupon the Supreme Council answered, denying that Henry did not substitute any other in the benefit certificate prior to his death, and averring the fact of substitution of John T. as to part of the benefit, as set forth in the affidavit. Averring also that at the time of the reissue of the certificate said Henry represented that his original benefit certificate, issued March 1, 1887, had been lost. A demurrer to this answer was sustained and judgment rendered in favor of Louisa McGinness for $3,000 and costs. The judgment was affirmed by the circuit court.
    
      Upon being dismissed from the action of Louisa against the Supreme Council, John T. McGinness commenced an action against that defendant upon the reissued certificate No. 11,240, dated' February 3, 1894, giving a copy of the same, and describing himself in the petition as a brother of the deceased Henry, and asking judgment of $1,000.
    A demurrer to this petition having been overruled, the defendant answered, setting up, among other things, that the certificate of incorporation of defendant specifies that its particular business and object shall be, among other things, “to afford moral and material aid to its members and their dependents, by establishing a fund for the relief of sick and disabled members, and a benefit fund from which, on satisfactory evidence of the death of a member who shall have complied with all its lawful requirements, a sum- not exceeding $5,000 shall be paid to the family or dependents of each member as he shall have directed;” that the constitution of defendant has a like provision; that the by-laws provide thart each applicant shall enter upon his application the name or names of the members of his family, or those dependent upon him, to whom he desires his benefit paid, and the same shall be entered in the benefit certificate. A member may at any time, when in good standing, surrender his certificate and have a new one issued payable to such beneficiary or beneficiaries dependent upon him as he may direct.
    On or about the first day of March, 1887, for a valuable consideration, the defendant company did execute and deliver to Henry F. McGinness its benefit certificate, No. 11,240, in and by which the defendant agreed to pay out of its benefit fund to Louisa McGinness, wife of said Henry, a sum of money not exceeding $3,000, according to the provisions of law governing said fund, upon the death of said Henry in good standing. Afterward, on the third day of February, 1894, the said Henry made application to defendant to change the beneficiary named in said policy, No. 11,240, from Louisa McGinness, $3,000, to Louisa McGinness two-thirds, or $2,000, and John T. McGinness one-third, or $1,000 (wife and brother). That by section 3 of the by-laws said Henry was required to surrender his benefit certificate to the defendant for the purpose of reissue; but being unable to find the same he made affidavit that said certificate, No. 11,240, was lost and that he therefore could not surrender it, and upon payment of certificate fee of fifty cents this defendant reissued to said Henry the benefit certificate No. 11,240, a copy of which is attached to plaintiff’s petition, by which defendant agreed to pay to Louisa McGinness two-thirds and John T. McGinness one-third (wife and brother) a sum of money not exceeding $3,000, according to the provisions of law governing said fund upon the death of said member in good standing.
    Defendant further says that plaintiff, John T. McGinness, brother of said Henry, was not on said third day of February, 1894, or at any time subsequent thereto, a. member of the family of said Henry, nor was the said John T. McGinness at said date, or at any time subsequent, a dependent upon the said Henry, all of which was unknown to this defendant on said third day of February, 1894, and at all times subsequent thereto, during the life, of said Henry.
    A demurrer to this answer was, on hearing, sustained, and judgment rendered in favor of plaintiff for $1,102 and costs. The circuit court reversed this judgment and remanded the cause to the court of common pleas with instructions to overrule the demurrer to the answer, and for further proceedings.
    ■ The Supreme Council seeks a reversal of the judgment in favor of Louisa McGinness, and John T. McGinness seeks a reversal of the judgment of the circuit court, and an affirmance of the judgment of the common pleas.
    
      Meyer & Mooney, for the Supreme Council.
    
      Blcmdin da Rice, for Louisa McGinness.
    
      James Fitch, for John T. McGinness.
   Spear, C. J.

The right of Louisa McGinness to the entire fund may be determined by considering first, what are the rights of John T. Mc-Ginness to a portion of it, inasmuch as her claim rests upon the proposition that the second, or reissued certificate, is invalid.

This presents the question whether or not Henry, the husband, had power to substitute one who stood simply in the relation of brother, as the recipient of part of the fund, and whether the Council had power to issue a certificate calling for the payment of any part of the benefit to him. It is to be borne in mind that John T. describes himself in his petition as a brother of the deceased, Henry, and his counsel claims that this brings him within the class designated by the law of the Council, because it is equivalent to an averment that he was of the family of the deceased, while the answer of the Council averred that John was not of the family of Henry, nor a dependent upon him*, and its counsel contends that the bare allegation that John is a brother is wholly insufficient to bring John within the class prescribed by the charter, and to satisfy the requirement of that .clause of the by-laws which limits the payment of benefits to the family or dependents of a deceased member. Their contention in brief is, that, upon the admitted facts, John T. McGinness is not within the class of persons who might be desigmated by Henry as a beneficiary, and that the designation of him as a beneficiary was an invalid act. That therefore the original designation and certificate remain in full force, and they cite State ex rel. v. Central Ohio Mutual B. A., 29 Ohio St., 399; State v. Moore, 38 Ohio St., 7; State v. Standard Life Ass'n, same vol., 281 ; State ex rel. v. Peoples' Mutual B. A., 42 Ohio St., 579; National Mutual Aid Ass'n v. Gonser, 43 Ohio St., 1 ; American Legion of Honor v. Perry, 140 Mass., 580; Daniels v. Pratt, 143 Mass., 216; Skillings v. Mass. Ben. Ass'n, 146 Mass., 217; Northwestern Masonic Aid Ass'n v. Jones, 154 Pa. St., 99; Rockhold v. Canton Masonic Mutual Ben. Society, 129 Ill., 441; Bacon on Beneficial Societies, section 46, and' Niblack’s Mutual Beneficial Societies, section 3.

The question thus presented is not a novel one, nor do we think its solution difficult. This corporation belongs to that class of organizations known as beneficial societies. They are not insurance companies. The benefits secured by membership are intended for the relief of a member when sick, and for his family or dependents at his decease. The term family, it is true, in a broad sense, includes brothers, as it does sisters, and many others in a remoter degree of consanguinity, and is sometimes extended to include a group or succession of persons connected by blood, but it has never been assumed in any of the many cases in which kindred questions have been considered, that the word family, as used in certificates of this character, embraces so extended a circle, nor, indeed, that it could take in persons not dependent upon a member. Applying the familiar maxim of construction, nosoitur a soeiis, the meaning in the present case is made plain. The term “or dependents” immediately follows the word “family.” The language, taken together, imports one who is dependent upon a member for support, as a wife or child, and it will be noted that the declared purpose of the organization, as specified in the charter, is “to afford moral and material aid to its members and their dependents.” This language might, it is true, include a brother, but not necessarily, for it might easily be that the brother himself was the head of a family, and, for aught' that appears, that is true in the present case. To bring a brother within the category of the benefit clause it would be necessary to allege and prove that he was in fact one of the family in such sense as to be, in part at least, dependent upon the member for support. Ballou v. Ghile, 50 Wis., 614. The relationship of brother, standing alone, would be wholly insufficient. The classes of persons to be benefited being designated in the charter, it is clear that the member would be without power to select as a beneficiary one not so designated, and the corporation equally without power to accumulate a fund for persons other than those of the classes so named. To attempt, therefore, to designate one who is neither of the family of the member, nor dependent upon him, being inconsistent with the charter and the laws, was wholly ineffectual to accomplish that purpose. Nor can we assume that the deceased member intended the procuring of the second certificate to operate as a revocation of the first in the event of its invalidity as respects his brother John. It follows that the allegation in the petition which undertakes to describe the relation of the plaintiff to the deceased, when weighed in connection with the allegations of the answer respecting the charter of the council, was insufficient in law, and taking the two pleadings together, it is clear that the plaintiff had no case. The certificate of February 3, 1894, being invalid, and the liability of Council for the whole amount under the first cer1 tificate being admitted, it would follow that the original certificate should be regarded as in force, and that the widow is entitled to the entire fund. There was, therefore, no error in the judgment of the circuit court affirming that of the common pleas in the case of Louisa McGinness against the Supreme Council, and that will be affirmed.

In the other case, the parties having submitted their cause upon the merits as shown by the pleadings, and the law of the case being held by the circuit court against the plaintiff below, there should have been a final judgment against him in that court instead of an order remanding the cause to the common pleas. And now, proceeding here to render such judgment as the circuit court should have rendered, it will be ordered that the petition of John T. McGinness be dismissed at his costs.

It is difficult to discover a reason for the strange action of the common pleas in setting aside the order of interpleader, sustaining the demurrer of John -T. McGinness to the-affidavit, and in effect dismissing him from the case commenced by Louisa against the Council. The ruling is not ground of error here, as no proper exception was preserved, but we are led to notice it lest silence might be misconstrued. It resulted in the prosecution of two suits on the merits in that court, where one was sufficient to determine every real issue, two error proceedings in the circuit court and two in this court, and that, too, after the defendant had shown its readiness to respond to the court’s order by bringing into court the fund in dispute. If the rules of interpleader are not sufficiently comprehensive to avoid such multiplicity, it would seem that they are of little use.  