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71 Wis. 547, 37 N. W. 817 (second wife).

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Massachusetts. Clarke v. Schwarzenberg (1894) 162 Mass. 98, 38 N. E. 17 (executrix for benefit of heirs); Boyden V. Massachusetts Masonic Life Asso. (1896) 167 Mass. 242, 45 N. E. 735.

Michigan. Switchmen's Union v. Gillerman (1917) 196 Mich. 141, L.R.A.1918A, 1117, 162 N. W. 1024 (widow).

Mississippi. Sykes v. Armstrong (1916) 111 Miss. 44, 71 So. 262 (estate of insured).

Missouri. Lister v. Lister (1898) 73 Mo. App. 99 (widow); Gibbs v. Knights of Pythias (1913) 173 Mo. App. 34, 156 S. W. 11 (member's executor for benefit of eligible beneficiaries).

New York. Re Smith (1904) 42 Misc. 639, 87 N. Y. Supp. 725 (father). Pennsylvania. Arthars v. Baird (1890) 20 Phila. 287 (widow).

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Where the beneficiary named in the certificate predeceased the member, and the member thereafter executed a will in which he directed the executor to collect and hold the proceeds of the certificate, together with the remainder of his estate, in trust for certain persons therein designated, none of whom were within the class of beneficiaries designated by the statute or the by-laws and constitution of the association, the court in Finnell v. Franklin (Colo.) supra, held that, upon the failure of the designation, the fund should go to the class, or some one or more thereof, named in the statute, for whose benefit it could be legally accumulated, and awarded the fund to the uncle and cousins of the deceased member, who under the statute were eligible as beneficiaries, as against the executor of the estate, stating that, the executor of the estate not being within the class of legal beneficiaries, if he were permitted to take the fund, following the wish of the insured as expressed in his will, would be diverted from the purposes and objects for which the law authorized the corporation to be brought into existence.

In Grand Lodge, C. K. P. v. Mackey

(Tex.) supra, the statute defined the persons capable of taking a benefit at the death of a member of a benefit association, and the court stated that it was clear that the classes named in the statute, in the order named, were entitled to the benefit of a certificate of insurance in a fraternal beneficiary association, where there was no designation of a beneficiary, as it was the object and intention of the law that, whether any person had been designated or not, some person named in the statute should receive the benefit money, and it would be against public policy for the money to revert to the association unless there was no person bearing the relation named in the statute to the deceased. And see Carr v. Grand Lodge, U. B. F. (1916) Tex. Civ. App. 189 S. W. 510, holding that in the absence of any beneficiary, payment of the death benefit should be made, in the order, named, to the eligible beneficiaries in its by-laws and statute. The association, however, in that case, did not deny the indebtedness, but expressed a willingness to pay the sum to the persons entitled to receive the same.

The failure of a beneficiary, for the reason that the person designated is not entitled to take under a statute, leaves matters as though no designation had been attempted, and unless otherwise provided by statute, or by the laws of the society, the persons indicated by the statute fixing the classes of persons for whom the funds shall be accumulated are entitled to the benefit. Supreme Lodge, N. E. O. P. v. Hine (1909) 82 Conn. 315, 73 Atl. 791.

Where, in case of the failure of the beneficiary in a benefit certificate, the society disclaims all right to the fund and expresses its willingness to pay it to such person as the court shall direct, the court will make an equitable distribution thereof; and, as the fund exists for the benefit of those who may be designated as beneficiaries, it will be awarded to the only surviving person who is eligible as a beneficiary, as against the estates of the member and of the deceased

beneficiary, neither of which could have been designated as the beneficiary. Supreme Colony, U. O. P. F. v. Towne (1914) 87 Conn. 644, 89 Atl. 264, Ann. Cas. 1916B, 181.

And it has been held that where the beneficiary designated is, by statute, ineligible to take, upon the death of the member his executrix is entitled to the fund in trust for the benefit for those who, at the time of the contract with the association was made, were entitled to be named as beneficiaries. Clarke v. Schwarzenberg (1894) 162 Mass. 98, 38 N. E. 17. And to the same effect, see Boyden v. Massachusetts Masonic Life Asso. (1896) 167 Mass. 242, 45 N. E. 735, where the beneficiary designated in the certificate died prior to the death of the member, and the by-law providing for such contingency was held to be inapplicable, for the reason that it was not made a part of the policy.

In Given v. Wisconsin Odd Fellows' Mut. L. Ins. Co. (1888) 71 Wis. 547, 37 N. W. 817, the benefit was to be payable to the person designated by the member, or his widow, children, mother, or sisters, etc., as the case might be in the order named, if not otherwise directed by the deceased prior to his death, and it was held that where the first wife, who was designated as the beneficiary in the certificate, died during the life of the insured, the direction that the insurance money be paid to her was abrogated, and upon the death of the member the fund should be paid to the person entitled thereto under the rules and by-laws of the company.

Where it is a practice recognized by an association that anyone becoming a member may designate the beneficiary who is to receive the fund payable upon his death, but the bylaws make no mention of the designation of beneficiaries, merely providing that the fund shall be payable to the member's widow, orphans, heirs, assignees, or legatees upon his death, the personal representatives of a beneficiary named in the certificate, who predeceased the member, are not entitled to the benefit fund, which in the absence of any provision in the

charter or by-laws will go to the persons enumerated in the charter and by-laws, in the order in which they are named. Masonic Mut. Relief Asso. v. McAuley (1882) 2 Mackey (D. C.) 70.

Where the by-laws of a fraternal benefit society are in accordance with a statute which provides that the benefit of such organization shall, upon the death of the member, go to the family, heirs, etc., of the assured, the insured's father, as his heir, is entitled to the benefit as against the administrator of the insured, where the beneficiary designated in membership certificate died before the member. Boice v. Shepard (1908) 78 Kan. 308, 96 Pac. 485, holding that a statute providing that, in case of the death of a beneficiary "in any policy" before the death of the insured, the insurance shall go to the latter's estate, was inapplicable to fraternal benefit societies.

And it has been held that where the contract has been fully executed on the insured's part by the payment of all assessments, although the benefit has been made payable to the insured's personal representative, who is not within the classes who may, under the laws, be appointed a beneficiary, the insurer cannot escape liability, but the representative may recover the benefit for the use of those for whom it has been accumulated, and to whom it should be paid, in accordance with the by-laws, when no proper designation of a beneficiary has been made. Gibbs v. Knights of Pythias (1913) 173 Mo. App. 34, 156 S. W. 11. And a similar conclusion was reached in Mullen v. Woodmen of World (1909) 144 Iowa, 228, 122 N. W. 903.

The court in the Gibbs Case (Mo.) supra, stated that the later and better authorities are all to the effect that when the contract has been fully executed on the insured's part, by the payment of all assessments and dues, and by his death, the society will not be allowed successfully to assert its defense against the payment of the benefit, that the designation in the beneficiary's certificate was of one of

a class of persons not included in the charter as of those for whom the benefits are to be provided.

The benefits on two certificates of membership in a mutual benefit society, formed for the purpose of furnishing indemnity or benefit to the widows, orphans, heirs, or devisees and legatees of its deceased members, which had upon the death of the holder been collected from the surviving members of the association, are payable to his widow, where the certificate is payable to the member's legatee, and the member dies leaving no will. Chicago Guaranty Fund Life Soc. v. Wheeler (1898) 79 Ill. App. 241. The court stated that to hold in accordance with the contention of the society that, because the member died without legatees, it was liable to no one on the certificate, would frustrate the whole scheme and object of its existence as a corporation.

And in Caudell v. Woodward (1893) 15 Ky. L. Rep. 63, it was held that, in case the beneficiary designated in a certificate is ineligible, the fund does not revert to the society, but goes to the person for whose benefit the charter declares it to be created.

VII. Reversion to society. There are a number of cases which hold, in accord with the reported case, that, in the absence of the designation of a beneficiary, the benefit fund reverts to the society, where there is no direction as to what disposition is to be made of it under such circumstances.

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Texas. Screwmen's Benev. Asso. v. Whitridge (1902) 95 Tex. 539, 68 S. W. 501; Home Circle Soc. v. Hanley (1905) 38 Tex. Civ. App. 547, 86 S. W. 641; Grand Lodge, C. K. P. v. Mackey (1907) Tex. Civ. App. 104 S. W. 907. Virginia.

Smith v. Hatke (1913) 115 Va. 230, 78 S. E. 584.

And see Rollins v. McHatton (1891) 16 Colo. 203, 25 Am. St. Rep. 260, 27 Pac. 254.

It will be observed, however, from an examination of these cases, that in most, if not all, instances the certificate specifically provides that the fund is to be payable to the person whom the member shall designate as his beneficiary, which, the courts. apparently hold, is an agreement to pay only to such person as the member names; while in the majority of cases the certificate does not absolutely require the member to name a beneficiary.

And it is to be noted that in Cook v. Supreme Conclave, I. O. H. (Mass.), Warner v. Modern Woodmen (Neb.), and Eastman v. Provident Mut. Relief Asso. (N. H.), supra, the member died without leaving legal heirs.

The rule that in case there is no valid beneficiary at the time of the member's death, the certificate lapses, in the absence of by-laws providing for the disposition of the fund, was applied in Golden Star Fraternity v. Martin (N. J.) supra, where the constitution of the fraternity provided for the payment to such person as the

member should direct, and a certificate was issued which, by its terms, was payable to the mother of the insured, who predeceased him, and no other designation was made. It was held that there was never a vested interest in the mother, and therefore her representatives were not entitled to the fund, and neither were the representatives of the member entitled thereto, since the contract did not bind the insurer to pay the member, and the association was liable to no one. This holding reversed the judgment of the trial court, based on the theory that the fund became vested in the insured upon the death of the beneficiary, in the absence of the designation of a new beneficiary, and was payable to the insured's beneficiary as in case of ordinary life insurance; the court stated that it could not adopt this theory for several reasons, namely, that the contract, if construed in this manner, was not one which the fraternity was authorized by law to make, that it ignored the express provision of the constitution to the effect that, upon the death of the member, the sum was to be paid to a person designated, and that the contract could not be construed as vesting the member with any interest in the fund, but only with a power to designate a beneficiary.

And in a case where there was a controversy as to the identity of the beneficiary named in a certificate of membership in an unincorporated benefit association, the by-laws of which provided for the payment of death benefits to the beneficiary named in the application, giving the member the right to change the beneficiary, the court in Dickerson v. Midvale Beneficial Asso. (1919) 264 Pa. 415, 107 Atl. 778, held that the administrator of the member's estate could not maintain an action for the benefit of the member's mother, since as next of kin she had no legal claim upon the fund, recoverable directly or through the administrator. The court stated that the only provision for the payment of the death benefit was to the beneficiary, and if none were named, or the designation were fatally defective,

the fund would revert to the association, for such benefit formed no part of the deceased member's estate.

The reported case (DISTRICT. GRAND LODGE, G. U. O. O. F. v. COTHRAN, ante, 759) holds, in answer to questions propounded by the court of appeals, that where the wife, who was named as beneficiary in a certificate issued by a benefit association, died without leaving children, prior to the death of the association member, neither the administrator of the member nor the administrator of the beneficiary is a proper party to sue the association for the benefit due under the certificate, since the fund in such case reverts to the society.

In Screwmen's Benev. Asso. V. Whitridge (1902) 95 Tex. 539, 68 S. W. 501, where it was not proved that the beneficiary under whom the plaintiff claimed survived the insured, both parties having perished in a flood, and there was no provision for payment to any other person, the contract was held to lapse, so that no recovery thereon could be had by the legal heir of the beneficiary.

And where the beneficiary dies before the member, and no other designation of a beneficiary is made, the benefit fund lapses to the society and cannot be recovered by the administrator of the member, where the laws of the society prescribe the manner of changing the name of the beneficiary and procuring a new certificate, and do not confine beneficiaries to a particular class, and the order is not designed to confer a charity upon a particular class. Home Circle Soc. v. Hanley (1905) 38 Tex. Civ. App. 547, 86 S. W. 641.

A mutual benefit association is under no legal liability for the amount due on a certificate issued by it to one of its members, in the absence of a designation of any person as nominee for the benefit, as provided in the constitution of the association, notwithstanding that the insured by his will bequeathed the amount of the certificate to his wife, and directed the officers of the order to substitute her name in the certificate and pay the money to her. Order of Mutual Com

panions v. Griest (1888) 76 Cal. 494, 18 Pac. 652. The association in this case, however, admitted its moral obligation and its willingness to pay the money, and asked the court to direct its payment; a judgment was affirmed which directed the money to be paid to the executor of the estate, the court holding that the heirs of a former wife, who had been nominated for the benefit, could not be legally aggrieved by such judgment, and the surviving wife had not appealed from the judgment.

And in the reported case (DISTRICT GRAND LODGE, G. U. O. O. F. v. COTHRAN) it is held that, in the absence of any suggestion of a provision in the constitution, 'charter, by-laws of the society, or in the certificate of membership, or in the state statutes, which would prevent a forfeiture, the benefit fund reverts to the society upon the death of a member, where the beneficiary designated in the certificate dies without leaving children prior to the death of the member.

And a like conclusion of nonliability on the part of the association was reached in Cook v. Supreme Conclave, I. O. H. (1909) 202 Mass. 85, 88 N. E. 584, where, under similar circumstances, the court held that a trust did not result in favor of the executor. In discussing the doctrine of the resulting trust the court stated: "It becomes necessary to examine into the nature of this so-called trust fund. The purpose for which the death fund in societies like the defendant is raised, and the persons among whom it may be finally distributed, are described in the statutes. While a member can receive sick benefits during his life, and therefore may be said to be a cestui que trust of the funds raised for that purpose, he never can be a beneficiary under a death benefit. He may designate to whom the part named in his certificate may be paid, but even then he must keep within the classes of beneficiaries named in the statute; and a designation outside of these classes is invalid. Supreme Council, A. L. H. v. Perry (1886) 140 Mass. 580, 5 N. E. 634; Daniels v. Pratt (1887) 143 Mass.

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216, 10 N. E. 166. In the last case the designation was the estate of the member. It was declared invalid, the court saying: 'If it were a part of his estate, it would be assets for the payment of debts and expenses of administration, and would be subject to an unrestricted disposition by will. But this is inconsistent with the statutes, and so beyond the power of the parties.' It thus appears that this fund is not created for the member, and that the only power he has over it is a limited power of appointment. If by reason of a valid appointment expressly made by him, or if, in case of his failure to make such an appointment, there be a provision, either in the certificate or in the laws of the association, making a valid appointment which may be regarded as indirectly made by him, then the fund goes to the appointee. But to say that when there is a failure to make a valid appointment the fund shall go to the member as a resulting trust is to announce a result totally inconsistent for the purpose for which the fund was created. There can be no resulting trust which is inconsistent with the trust created by statute."

The benefit fund due under a certificate of membership in a fraternal beneficiary society, which provides that the payment thereof shall be made only to the family, widow, heirs, blood relatives, affianced wife, or other persons dependent upon the member, where the by-laws of the association as well as the statutes of the state under which it is organized contain the same provisions, cannot be recovered by the administrator of the member, where he dies leaving no one in existence entitled to be made beneficiary under such certificate, for his death creates no interest in his estate in the fund mentioned in the certificate, nor do any equitable rights accrue either to the creditor or to the estate, and the fund in such case will revert to the society. Warner v. Modern Woodmen (1903) 67 Neb. 233, 61 L.R.A. 603, 108 Am. St. Rep. 634, 93 N. W. 397, 2 Ann. Cas. 660. The theory on which the administrator in this case sought

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