
    Marie Janda, as Administratrix, etc., of Frank Janda, Deceased, Respondent, v. Bohemian Roman Catholic First Central Union of the United States of America, Appellant.
    
      Mutual benefit society—a death benefit, payable by the by-laws to the “legal heirs,” may be sued for by the widow as administratrix.
    
    Where .the articles of incorporation of a mutual benefit society state that its object is to provide a fund for the benefit of the widows and orphans of deceased members and the by-laws of the society provide that the death benefit shall be paid to the “legal heirs” of the deceased member, the widow of a member of the society who dies intestate, leaving surviving him the widow and children-, may maintain, in her capacity as administratrix of her husband’s estate, an action to recover such benefit.
    Yan Brunt, P, J., and Laughlin, J., dissented.
    Appeal by the defendant, the Bohemian Roman Catholic First Central Union of the United States of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of December, 1901, upon the report of a referee.
    
      Howard E. White, for the appellant.
    
      Paul Jones, for the respondent.
   McLaughlin, J.:

This action was brought to recover the amount of a death benefit upon the life of the plaintiff’s intestate, who, at the time of his death, was a member of the defendant, a mutual benefit society. The plaintiff had a judgment and defendant has appealed.

The referee found that one of the objects for which the defendant was organized was to provide a certain-fund for the benefit of widows and orphans of deceased members, and that the intestate, at the time of his death, was a member of the defendant, for which reason his widow and children were entitled to receive from such fund the sum of $1,300, that being the amount which the defendant promised and agreed to pay to the intestate’s legal heirs, and that the plaintiff, in her capacity as administratrix, had “ such interest in said fund and assurance as entitles her to recover the same in this action.”

There is no dispute as to the facts, and the only question presented is whether the plaintiff, as administratrix, is entitled to maintain this action, the fund by the terms of the by-laws of defendant, being made payable to the “ legal heirs ” of the intestate. The term legal heirs,” as here used, when taken in connection with the general object of the defendant, as expressed in its articles of incorporation, means the widow and children. (Griswold v. Sawyer, 125 N. Y. 411; Bishop v. G. L. E. O. of M. A., 112 id. 627.) Here the intestate left him surviving the plaintiff, his widow, and two infant children, and that she has a right to maintain this action as administratrix of her husband’s estate was settled by Bishop v. G. L. E. O. of M. A. (supra). In that case the deceased left him surviving a widow and two minor children, and the fund was payable “ to the families, heirs or legal representatives of deceased or disabled members, or to such person or persons as such deceased member might, while living, have directed.” Action was brought by the widow as administratrix of her husband’s estate, and the trial court directed a verdict for the defendant upon the ground that she could not maintain an action to recover since no certificate of membership had been issued to her intestate. The judgment was affirmed by the late General Term, but was reversed by the Court of Appeals. After holding that an action could be maintained notwithstanding no certificate had ever been issued, that court also said, referring to the right of the plaintiff as an administratrix to maintain the action: “We also think the plaintiff had sufficient interest in the fund to sustain this action in her capacity as administratrix. It is true the fund does not come into her hands technically and strictly as assets of the estate of her intestate, nor is it to be liable for his debts. But the plaintiff in her capacity as administratrix represents both herself and those others who are entitled to receive the fund as its intended beneficiaries, for it comes to them by reason of the membership of the deceased, and the plaintiff is a quasi trustee for her children and as administratrix represents them in this action. * * * For the reasons already given, however, we think the action is properly brought in the name of the plaintiff.”

This authority is directly in point, and it follows the judgment appealed from must be affirmed, with costs.

O’Brien and Hatch, JJ., concurred; Van Brunt, P. J., and Laughlin, J., dissented.

Judgment affirmed, with costs.  