
    The Brooklyn Trust Company, as Executor, etc., of George W. Jones, Deceased, Plaintiff, v. Seventh Regiment Veteran and Active League, Defendant.
    Second Department,
    June 8, 1906.
    Dife insurance — "by-laws as to change of beneficiary in membership insurance corporation construed—beneficiary to be named in will — waiver of defects by insurer — when testamentary trustee is beneficiary.
    When one insured in a membership insurance .corporation having under the by-laws a right to change his beneficiary by designating the change desired, which shall be “duly recorded■ and endorsed” on his certificate, has duly requested, after the death of his wife, the first beneficiary, that the beneficiary should be “as provided in my will” which change was indorsed on the certificate by the company and recorded in its books, the trustee of the residuary estate of the insured is entitled to recover the amount" due.
    This is so although the company's rules require payment to “the person or persons whose name or names shall be recorded on the books ” of the company, and the name of no person was in fact" recorded.
    Moreover, the fact that the insurer received"the dues and assessments of the member, knowing that the name of no person was recorded in its books as beneficiary, was a waiver of any such objection.
    The insured by naming in his will a testamentary trustee of his residuary" estate sufficiently names a beneficiary entitled to recover the insurance money.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      
      Henry Hirschberg, for the plaintiff.
    
      John H. Lewis, for the defendant.
   Rich, J.:

' In December, 1884, George W.. Jones became, a member of defendant, a corporation doing business in this State as a co-opéiia- , ti ve life insurance association, whose. membership -is composed of former honorably discharged members of the Seventh Regiment of ■ the Hational Guard of the State of Hew York. ’ His membership continued.until the time of his death, March 1, 1905.

Section 7 of article 5 of defendant’s by-laws, is as follows: Section 7. Every member shall -within ten days after he has been notified of his election, designate in writing' some person or persons who shall be entitled to receive the ,amount that would be due in the - event of the death of such member; the name Of such person or persons shall be duly recorded by the Secretary and - endorsed by him on the certificate of such member. Ho change shall be made in the name of the person or persons so designated unless the member so desiring shall return his certificate to the Secretary accompanied'with 'his written request designating- the alteration desired-, which. alteration shall be duly recorded . and endorsed' on such certificate and.it returned to the member. * * * ”

Pursuant to the written request of Jones the name of his wife ■ was recorded by the secretary in-the books' of the defendant as his beneficiary,” and her name; was indorsed by the secretary upon the certificate of • membership. The beneficiary died in May", 1887, whereupon Jcfnes returned his certificate to the secretary," accompanied by his written request' designating the alterations desired, to wit, that his “ beneficiary ” should be “ ‘ as provided in my will,’ which alteration was thereupon recorded in those words by the secretary in the- books of the defendant, and indorsed by .him on. said certificate^ which lie drily returned to said Jones.” The indorsement was as follows :Beneficiary, 'As provided for in will.”

- Section 8 of article '4 of the by-laws reads as. follows: “ Section 8. Upon satisfactory proof of the death of any member of the League ‘ to the Executive Committee, they shall order the payment of an amount equal to eighty per cent of the. total sum received from such member’s death assessments to the person or persons .whose name or names shall he recorded on the books of the League as his beneficiary or beneficiaries, or their- "legal representatives, said payment to be made upon the surrender of the certificate of membership of the deceased member.” The name of no person was recorded in the books of defendant as his beneficiary.

The question submitted for our determination is, whether Jones, after the death of his wife, designated a person who should be entitled to receive the amount that would be due, in the event of Jones’ death, from defendant, as required by and in accordance with the by-laws of defendant.

It is contended by the learned' counsel for defendant that there was no compliance with the by-laws, in that the name of plaintiff is not recorded on the books of defendant as Jones’ beneficiary. We cannot accept this view. It is true the by-laws required payment to be made to the person or persons whose names appear on the books as beneficiary. We think, however, that the entry made by defendant’s officer must be regarded as a substantial compliance with the by-laws. The certificate was delivered to the secretary, who indorsed and returned it to Jones, and made the record of the change in defendant’s books, which have remained in its possession from the date of the change in 1887 to March, 1905, when Jones died, during which - time Jones paid his assessments and dues, as, they became due, to defendant, which received the same, knowing the name of the beneficiary was not recorded in its books,'and if there was no substantial compliance with the by-laws, defendant must be held to have waived the objection that the name of the beneficiary was not upon its books. It follows, therefore, that upon the- death of Jones defendant became liable upon the certificate (satisfactory proof of death having been furnished defendant as required by its by-laws), providing a beneficiary was named in his will. By tlie 6th paragraph of his will lie provides: “ All the rest, residue and remainder of my estate and property of every sort, nature and description, and wheresoever the same may be situate of which I may die seized, possessed or entitled to, I give, devise and bequeath to the Brooklyn Trust Company,of the Borough of Brooklyn, City of New York, the same to be had and held by them and their successors and assigns, but nevertheless in trust and to and for the uses and purposes following, that is to say,” etc.

We think it was the intention of the testator'to .name the plaintiff, -in its character as testamentary, trustee, as his beneficiary. He had long before expressed his intention to name a beneficiary in his will, and while here, as.in the case of Kepler v. Supreme Lodge, Knights of Honor (45 Hun, 274), the will did not specifically mention the fund, yet he does'effectually dispose of the fund given to his trustee for the benefit of certain off his heirs, by the residuary clause of his will. . '

The learned counsel for the defendant- calls our attention" to the fact that “the officers of the defendant would v.ery cheerfully pay a ‘ benefit’-upon Mr. Jones’ membership- if they believed they could, rightfully do so,” etc. We think it. would be all right to pay, and .answer the-question, “Did the said George W. Jones,, after the deáth of his wife, designate a person who should be entitled to receive the amount that would be due from the ‘ Seventh ¡Regiment Veteran and Active League,’ in the event of,his death, as required by and in accordance with the by-laws of'said league?” in the affirmative, and direct judgment for the plaintiff in accordance, with the stipulation. " - ■ .

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment for plaintiff, without costs, on submission of controversy.  