
    Mary Maguire and Others, Appellants, v. Kate Maguire, Respondent, Impleaded with The Supreme Council Catholic Benevolent Legion.
    
      Mutual benefit life insurance—a fund payable “ to the family or dependents” of a member—the objection that a niece is not included therein is amailahle only to the association.
    
    
      Where a member of a mutual benefit life insurance association, whose certificate of incorporation provides that the benefit fund shall be paid “to the family or dependents of such member as he shall have directed,” designates his niece as the beneficiary of his certificate, the objection that such designation was ultra vires, in that the beneficiary was neither of the family of the deceased nor dependent upon him, is available only to the association and cannot be urged by the widow and children of the member.
    Appeal by the plaintiffs, Mary Maguire and others, from a judgment of the Supreme Court in favor of the defendant Kate Maguire, entered in the office of the clerk of the county of Kings on the 6th day of June, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.
    
      Henry P. Burr, for the appellants.
    
      Thomas F. Magner, for the respondent.
   Jenks, J.:

This is an appeal by the plaintiffs from a judgment of the Special Term in favor of the defendant Kate Maguire. The plaintiffs are respectively the widow and the children of Thomas Maguire, deceased, and the defendant Kate Maguire is' his niece. In 1888 Thomas Maguire became a member of the defendant, The Supreme Council Catholic Benevolent Legion, and received its benefit certificate entitling the beneficiary named therein to receive $1,000 at the death of Maguire, provided that at that time he was in good standing. The beneficiary first named was his daughter, the plaintiff Sarah Maguire. In 1892, as authorized by the laws of the council, Maguire surrendered the certificate and received a new certificate as of original date, 1888, wherein the beneficiary named was Thomas Maguire’s son. In 1899, Maguire surrendered the second certificate ■and received a new certificate as of original date 1888, which second •certificate hears date of reissue of July 19, 1899, and names .as the beneficiary Kate Maguire, niece. Some time before May, 1899, Maguire fell into arrears for dues. He was notified by the council ■and asked to pay them to prevent a lapse of the certificate, but refused to pay, stating, that he preferred the lapse to a continuance by payment of dues. The council then notified ■ the son Thomas, then named as beneficiary, and asked him to pay. the dues,to preAmnt a lapse, but he also refused to pay previous or coming dues. Thomas Maguire was suspended, and during suspension was cut off from all benefits, as were his beneficiaries. Previous to his rein- ' ¡statement, he went to his sister, the mother of the beneficiary last named, and asked her to take up the certificate. She at first refused, but finally said she would take it' for her daughter Kate. Maguire replied : li That will just do; I stood for her.” She was his god•child. His sister then advanced him money to pay his debts, to pay the examining physician, and thereafter kept the insured in good standing until his death. Before he could be reinstated he was examined by a physician, balloted for and admitted by vote. In 1881, the defendant was incorporated for benevolent purposes under the laws of Hew York. The certificate of incorporation states that the benefit fund shall be paid “ to the family or dependents of such member as he shall have directed.”

This action is brought by the widow and the children of the ■deceased against the society and Kate Maguire, the beneficiary, on the theory that the insurance was payable to his family and his ■dependents, these plaintiffs. The council obtained an order permitting it to deposit in court to the credit of this action the amount, •of the benefit, and was thereupon dismissed the action, which was thereafter litigated between the other parties named. The learned Special Term gave judgment for the defendant.' The by-laws provide that a member in good standing may at any time surrender his benefit certificate to the secretary of the council for a change of beneficiary, and have a new certificate issued payable to such legal beneficiary or beneficiaries as he may direct. . The contention of the plaintiffs is that the designation of the beneficiary was ultra vires the council, in that she was neither of the family of the deceased nor dependent on him. Such a contention would be available to the council alone. In any event, it cannot be maintained by the plaintiffs, who have no certificate, and who came into court without .any basis for any claim whatever. (Luhrs v. Supreme Lodge Knights & Ladies of Honor, 27 N. Y. St. Repr. 88.) The council takes no position adverse to the co-defendants, but, on the contrary, pays the money into court.

The judgment must be affirmed, with costs.

All concurred, except Sewell, J., taking no part.

Judgment affirmed, with costs.  