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71 Wis. 547, 37 N. W. 817 (second (Tex.) supra, the statute defined the wife).

persons capable of taking a benefit at Massachusetts. Clarke v. Schwar- the death of a member of a benefit zenberg (1894) 162 Mass. 98, 38 N. association, and the court stated that E. 17 (executrix for benefit of heirs); it was clear that the classes named Boyden v. Massachusetts Masonic in the statute, in the order named, Life Asso. (1896) 167 Mass. 242, 45 were entitled to the benefit of a cerN. E. 735.

tificate of insurance in a fraternal Michigan. Switchmen's Union v. beneficiary association, where there Gillerman (1917) 196 Mich. 141, was no designation of a beneficiary, L.R.A.1918A, 1117, 162 N. W. 1024 as it was the object and intention of (widow).

the law that, whether any person had Mississippi. Sykes v. Armstrong been designated or not, sonde person (1916) 111 Miss. 44, 71 So. 262 (estate named in the statute should receive of insured).

the benefit money, and it would be Missouri. — Lister v. Lister (1898) against public policy for the money 73 Mo. App. 99 (widow); Gibbs v. to revert to the association unless Knights of Pythias (1913) 173 Mo. there was no person bearing the relaApp. 34, 156 S. W. 11 (member's exec- tion named in the statute to the deutor for benefit of eligible benefi- ceased. And see Carr v. Grand Lodge, ciaries).

U. B. F. (1916) Tex. Civ. App. —, New York. Re Smith (1904) 42 189 S. W. 510, holding that in the Misc. 639, 87 N. Y. Supp. 725 (father). absence of any beneficiary, payment

Pennsylvania. - Arthars v. Baird of the death benefit should be made, (1890) 20 Phila. 287 (widow).

in the order named, to the eligible Where the beneficiary named in beneficiaries in its by-laws and statthe certificate predeceased the mem- ute. The association, however, in that ber, and the member thereafter exe- case, did not deny the indebtedness, cuted a will in which he directed the but expressed a willingness to pay the executor to collect and hold the pro- sum to the persons entitled to receive ceeds of the certificate, together with the same. the remainder of his estate, in trust The failure of a beneficiary, for the for certain persons therein designated, reason that the person designated is none of whom were within the class not entitled to take under a statute, of beneficiaries designated by the leaves matters as though no desigstatute or the by-laws and constitu- nation had been attempted, and unless tion of the association, the court in otherwise provided by statute, or by Finnell Franklin (Colo.) supra,

the laws of the society, the persons held that, upon the failure of the des- indicated by the statute fixing the ignation, the fund should go to the classes of persons for whom the funds class, or some one or more thereof, shall be accumulated are entitled to named in the statute, for whose bene- the benefit. Supreme Lodge, N. E. fit it could be legally accumulated, 0. P. v. Hine (1909) 82 Conn. 315, 73 and awarded the fund to the uncle and Atl. 791. cousins of the deceased member, who Where, in case of the failure of the under the statute were eligible as beneficiary in a benefit certificate, the beneficiaries, as against the executor society disclaims all right to the fund of the estate, stating that, the exec- and expresses its willingness to pay utor of the estate not being within it to such person as the court shall the class of legal beneficiaries, if he direct, the court will make an equitawere permitted to take the fund, fol- ble distribution thereof; and, as the lowing the wish of the insured as fund exists for the benefit of those expressed in his will, would be di- who may be designated as beneficiaverted from the purposes and objects ries, it will be awarded to the only for which the law authorized the cor- surviving person who is eligible as a poration to be brought into existence. beneficiary, as against the estates of

In Grand Lodge, C. K. P. v. Mackey the member and of the deceased

V.

are

beneficiary, neither of which could charter or by-laws will go to the perhave been designated as the benefici- sons enumerated in the charter and ary. Supreme Colony, U. 0. P. F. v. by-laws, in the order in which they Towne (1914) 87 Conn. 644, 89 Atl.

named. Masonic Mut. Relief 264, Ann. Cas. 1916B, 181.

Asso. v. McAuley (1882) 2 Mackey And it has been held that where (D. C.) 70. the beneficiary designated is, by stat- Where the by-laws of a fraternal ute, ineligible to take, upon the death benefit society are in accordance with of the member his executrix is en- a statute which provides that the titled to the fund in trust for the benefit of such organization shall, upbenefit for those who, at the time of on the death of the member, go to the contract with the association was the family, heirs, etc., of the assured, made, were entitled to be named as the insured's father, as his heir, is beneficiaries. Clarke v. Schwarzen- entitled to the benefit as against the berg (1894) 162 Mass. 98, 38 N. E. 17. administrator of the insured, where And to the same effect, see Boyden the beneficiary designated in the v. Massachusetts Masonic Life Asso. membership certificate died before the (1896) 167 Mass. 242, 45 N. E. 735, member. Boice v. Shepard (1908) 78 where the beneficiary designated in Kan. 308, 96 Pac. 485, holding that a the certificate died prior to the death statute providing that, in case of the of the member, and the by-law pro- death of a beneficiary "in any policy" viding for such contingency was held before the death of the insured, the to be inapplicable, for the reason that insurance shall go to the latter's esit was not made a part of the policy. tate, was inapplicable to fraternal

In Given v. Wisconsin Odd Fellows' benefit societies. Mut. L. Ins. Co. (1888) 71 Wis. 547, And it has been held that where the 37 N. W. 817, the benefit was to be contract has been fully executed on payable to the person designated by the insured's part by the payment of the member, or his widow, children, all assessments, although the benemother, or sisters, etc., as the case fit has been made payable to the inmight be in the order named, if not sured's personal representative, who otherwise directed by the deceased is not within the classes who may, prior to his death, and it was held under the laws, be appointed a benethat where the first wife, who was ficiary, the insurer cannot escape liadesignated as the beneficiary in the bility, but the representative may recertificate, died during the life of the cover the benefit for the use of those insured, the direction that the insur- for whom it has been accumulated, ance money be paid to her was abro- and to whom it should be paid, in gated, and upon the death of the mem- accordance with the by-laws, when no ber the fund should be paid to the proper designation of a beneficiary person entitled thereto under the has been made. Gibbs v. Knights of rules and by-laws of the company.

Pythias (1913) 173 Mo. App. 34, 156 Where it is a practice recognized S. W. 11. And a similar conclusion by an association that anyone becom- was reached in Mullen v. Woodmen ing a member may designate the of World (1909) 144 Iowa, 228, 122 beneficiary who is to receive the fund N. W. 903. payable upon his death, but the by- The court in the Gibbs Case (Mo.) laws make no mention of the desig- supra, stated that the later and better nation of beneficiaries, merely pro- authorities are all to the effect that viding that the fund shall be payable when the contract has been fully to the member's widow, orphans, executed on the insured's part, by the heirs, assignees, or legatees upon his payment of all assessments and dues, death, the personal representatives of and by his death, the society will not a beneficiary named in the certificate, be allowed successfully to assert its who predeceased the member, are not defense against the payment of the entitled to the benefit fund, which in benefit, that the designation in the the absence of any provision in the beneficiary's certificate was of one of

a class of persons not included in L.R.A. 603, 108 Am. St. Rep. 634, 93 the charter as of those for whom the N. W. 397, 2 Ann. Cas. 660. benefits are to be provided.

New Hampshire. Eastman v. The benefits on two certificates of Provident Mut. Relief Asso. (1883) membership in a mutual benefit soci- 62 N. H. 555. ety, formed for the purpose of furnish- New Jersey. Golden Star Fratering indemnity or benefit

benefit to the nity v. Martin (1896) 59 N. J. L. 207, widows, orphans, heirs, or devisees 35 Atl. 908. and legatees of its deceased members, New York. Kunkel v. Workmen's which had upon the death of the Sick & Death Ben. Fund (1902) 68 holder been collected from the surviv- App. Div. 385, 75 N. Y. Supp. 188; ing members of the association, are Alexander v. Page (1914) 150 N. Y. payable to his widow, where the cer- Supp. 104; Reichle v. Perkins (1922) tificate is payable to the member's 232 N. Y. 435, 134 N. E. 336. legatee, and the member dies leaving Pennsylvania. – Dickerson v. Midno will. Chicago Guaranty Fund Life vale Beneficial Asso. (1919) 264 Pa. Soc. V. Wheeler (1898) 79 Ill. App. 415, 107 Atl. 778. 241. The court stated that to hold in Texas, Screwmen's Benev. Asso. accordance with the contention of the v. Whitridge (1902) 95 Tex. 539, 68 society that, because the member died S. W. 501; Home Circle Soc. v. Hanwithout legatees, it was liable to no ley (1905) 38 Tex. Civ. App. 547, 86 one on the certificate, would frustrate S. W. 641; Grand Lodge, C. K. P. the whole scheme and object of its v. Mackey (1907) -- Tex. Civ. App. -, existence as a corporation.

104 S. W. 907. And in Caudell v. Woodward (1893) Virginia. Smith v. Hatke (1913) 15 Ky. L. Rep. 63, it was held that, 115 Va. 230, 78 S. E. 584. in case the beneficiary designated in And see Rollins v. McHatton (1891) a certificate is ineligible, the fund 16 Colo. 203, 25 Am. St. Rep. 260, 27 does not revert to the society, but goes

Pac. 254. to the person for whose benefit the It will be observed, however, from charter declares it to be created. an examination of these cases, that in

most, if not all, instances the certifiVII. Reversion to society.

cate specifically provides that the There are a number of cases which

fund is to be payable to the person hold, in accord with the reported case, whom the member shall designate that, in the absence of the designation

as his beneficiary, which, the courts of a beneficiary, the benefit fund re

apparently hold, is an agreement to verts to the society, where there is

pay only to such person as the memno direction as to what disposition is

ber names; while in the majority of to be made of it under such circum

cases the certificate does not absostances.

lutely require the member to name a California. Order of Mutual Com

beneficiary. panions v. Griest (1888) 76 Cal. 494, And it is to be noted that in Cook 18 Pac. 652.

v. Supreme Conclave, I. O. H. (Mass.), Georgia.—DISTRICT GRAND LODGE, G. Warner v. Modern Woodmen (Neb.), U. O. O. F. v. COTHRAN (reported here- and Eastman v. Provident Mut. Relief with) ante, 759.

Asso. (N. H.), supra, the member Louisiana.-Walker v. Young Men's died without leaving legal heirs. St. Michael's Mut. Aid & Benev. Asso. The rule that in case there is no (1921) 148 La. 961, 88 So. 232.

valid beneficiary at the time of the Massachusetts. Cook v. Supreme member's death, the certificate lapses, Conclave, I. 0. H. (1909) 202 Mass. 85, in the absence of by-laws providing 88 N. E. 584.

for the disposition of the fund, was Missouri. Keener v. Grand Lodge, applied in Golden Star Fraternity v. A. 0. U. W. (1889) 38 Mo. App. 543. Martin (N. J.) supra, where the conNebraska. Warner

v. Modern stitution of the fraternity provided Woodmen (1903) 67 Neb. 233, 61 for the payment to such person as the

case

V.

member should direct, and a certifi- the fund would revert to the associacate was issued which, by its terms, tion, for such benefit formed no part was payable to the mother of the in- of the deceased member's estate. sured, who predeceased him, and no The reported case (DISTRICT. GRAND other designation was made. It was LODGE, G. U. O. O. F. v. COTHRAN, ante, held that there was never

a vested

759) holds, in answer to questions interest in the mother, and therefore propounded by the court of appeals, her representatives were not entitled that where the wife, who was named to the fund, and neither were the rep- as beneficiary in a certificate issued resentatives of the member entitled by a benefit association, died without thereto, since the contract did not leaving children, prior to the death bind the insurer to pay the member, of the association member, neither the and the association was liable to no administrator of the member nor the one. This holding reversed the judg- administrator of the beneficiary is a ment of the trial court, based on the proper party to sue the association theory that the fund became vested for the benefit due under the certifiin the insured upon the death of the cate, since the fund in such beneficiary, in the absence of the des- reverts to the society. ignation of a new beneficiary, and In Screwmen's Benev. Asso. was payable to the insured's bene- Whitridge (1902) 95 Tex. 539, 68 S. W. ficiary as in case of ordinary life in- 501, where it was not proved that the surance; the court stated that it could beneficiary under whom the plaintiff not adopt this theory for several rea- claimed survived the insured, both sons, namely, that the contract, if parties having perished in a flood, and construed in this manner, was not one there was no provision for payment to which the fraternity was authorized any other person, the contract was by law to make, that it ignored the held to lapse, so that no recovery express provision of the constitution thereon could be had by the legal heir to the effect that, upon the death of of the beneficiary. the member, the sum was to be paid And where the beneficiary dies beto a person designated, and that the fore the member, and no other descontract could not be construed as ignation of a beneficiary is made, the vesting the member with any interest benefit fund lapses to the society and in the fund, but only with a power cannot be recovered by the administo designate a beneficiary.

trator of the member, where the laws And in a case where there was a con- of the society prescribe the manner troversy as to the identity of the bene- of changing the name of the benefificiary named in a certificate of mem- ciary and procuring a new certificate, bership in an unincorporated bene- and do not confine beneficiaries to a fit association, the by-laws of which particular class, and the order is not provided for the payment of death designed to confer a charity upon a benefits to the beneficiary named in particular class. Home Circle Soc. v. the application, giving the member the Hanley (1905) 38 Tex. Civ. App. 547, right to change the beneficiary, the 86 S. W. 641. court in Dickerson v. Midvale Benefi- A mutual benefit association is uncial Asso. (1919) 264 Pa. 415, 107 Atl. der no legal liability for the amount 778, held that the administrator of due on a certificate issued by it to one the member's estate could not main- of its members, in the absence of a tain an action for the benefit of the designation of any person as nominee member's mother, since as next of kin for the benefit, as provided in the conshe had no legal claim upon the fund, stitution of the association, notwithrecoverable directly or through the standing that the insured by his will administrator. The court stated that bequeathed the amount of the certhe only provision for the payment tificate to his wife, and directed the of the death benefit was to the bene- officers of the order to substitute her ficiary, and if rone were named, or name in the certificate and pay the the designation were fatally defective, 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. 0. 0. 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.

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 leaying

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

no

one

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