formed a definite intention. without value. She could leave at any moment, without Judgment. there being any means of bringing her back or punishing KILLAM, J. her for breach of the undertaking. Slight as is the security which her remaining within the jurisdiction would afford the other party, the authorities show that the defendant is entitled to other security in lieu of it; and the order having been made, it cannot be rescinded upon such uncertain evidence as is now offered. I am not convinced that the applicant's return to Manitoba is anything but a device to evade the obligation to give the security.

Her undertaking is wholly 1896.

I dismiss the appeal with costs.

Appeal dismissed with costs.

LEADLAY V. MCGREGOR.

Before KILLAM, J.

Life Insurance-Mutual Benefit Society.

The plaintiffs were the executors of the will of M., a member of an unincorporated society known as the Order of Scottish Clans, who had held a certificate of membership entitling the beneficiary named therein to the sum of $2000 payable on M's death. By the rules of the society no member could assign his “bequeathment certificate " nor would any assignment be recognized by the society. The name of M's father, the defendant, had been inserted in the certificate by his request. After the date of the certificate and during the life time of M. the bequeathment laws of the society were amended, so as to provide that at the death of a member in good standing the amount of the bequeathment should be paid to the wife, affianced wife, or relative of, or person dependent upon, such member, as designated in his bequeathment certificate. By his last will and testament M. appointed the plaintiffs as his executors and trustees, and directed that his life insurance money should be paid to them

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Statement.

for the purpose of carrying out the trusts of the will; and about the same time he indorsed a memorandum on the bequeathment certificate revoking the former direction as to the payment of the insurance due at his death, and authorizing and directing such payment to be made to the plaintiffs. The officers of the society refused to recognize this revocation, and on the death of M. they refused to pay the insurance money to the plaintiffs without the authority of the Court. The plaintiffs were not, nor was any of them, the wife, affianced wife, or relative of, or person dependent on the deceased. Held, That, in a case of a society having objects and a constitution similar to those of the society in question, the member has no interest in the fund raised or to be raised, but merely a power to appoint an object to receive the same, which power must be exercised in accordance with the regulations of the society; and that the defendant, the beneficiary named in the certificate, was entitled to the money, as against the executors of the deceased's estate.

In re William Phillips' Insurance, 23 Ch. D. 235, followed.

ARGUED: 27th November, 1895.

DECIDED: 23rd January, 1896.

THIS case came before the Court for judgment upon certain admitted statements of fact, which are fully set out in the judgment.

A. Haggart, Q. C., for plaintiffs. On the issue of the certificate there was a contract between the deceased and the Order of Scottish Clans. The regulations of the Society at the time were a part of the contract; so also were those which were substituted for the rules and regulations repealed from time to time. The constitution of the Order of 1893 was in force at the time of the death of the deceased and should govern; that of 1894 was enacted after the death of Charles McGregor, and is not a part of the contract. Article 2 gives the objects. The Clans are not incorporated; the central organization is the Royal Clan; Grand Clans have territorial jurisdiction; Charles McGregor was a member of a subordinate Clan. There is authority to change beneficiaries under bequeathment certificates, but no method of changing same is provided. At common law a father has no insurable interest in his son's life. It is only under special circumstances he has such an interest: Porter on Insurance, 40; Halford v. Kymer,

1896.

10 B. & C. 724; Worthington v. Curtis, 1 Ch. D. 419. There is no privity at law between the father, the beneficiary and Argument. the Clans. The father could not sue at law for the money. The executors of Charles McGregor are the only parties who could sue: Addison on Contracts, 288; Price v. Easton, 4 B. & Ad. 434; Crow v. Rogers, 1 Str. 592. At the date of the certificate and subsequently the father could claim no stronger position than that of a cestui que trust under a voluntary settlement. What is a voluntary settlement? Prideaux on Conveyancing, vol. 2, p. 264; Garrard v. Lord Lauderdale, 3 Sim. 1; Acton v. Woodgate, 2 M. & K. 492. In this case there is a revocable trust: Lewin on Trusts, 568; Cornthwait v. Frith, 4 De G. & Sm. 552; Walwyn v. Coutts, 3 Sim. 14; Welding v. Richard, 1 Coll. 655; Godefroi on Trusts, 60; Antrobus v. Smith, 12 Ves. 39. Deceased never parted with the assignment showing that he intended to retain the control. The trust was revoked so far as he could do so. Insurance on life is not a contract for indemnity, but a security for money: Porter on Insurance, 306; Stokoe v. Cowan, 30 L. J. Ch. 882. There is no interest vested in the father: May on Insurance, § 399 m. The retention of the policy shows the intention of deceased to retain control over moneys represented. The methods prescribed by a policy for changing the beneficiary must be followed, but courts will not let third parties take advantage of slight irregularities. Equity will relieve where deceased has done all he could and even complete a change after his death: May on Insurance, § 399, o. The rules of

the Society required a payee who could give a discharge; but such payee might not be entitled in equity. Here there was never more than a mandate which was revoked. Deceased did all he could to effect a change. The executors, it is true, are not relatives; but the bequests in the will are all to relatives, excepting a few small gratuities, and the executors were only the medium through which the relatives should take the benefits of the insurance, and in naming the executors as beneficiaries he named them as representatives for relatives. The deceased substantially

1896.

complied with the regulations of the Society passed with Argument. the object of securing the benefits to his relations.

J. Stewart Tupper, Q. C., and F. H. Phippen for defendants. There is no question as to revocation; even plaintiffs cannot succeed unless they can show themselves entitled, as against the Society, to the money. Under the Bequeathment laws in force at the death there is no provision for changing beneficiaries. The only change of beneficiary must be a matter of agreement between the clansman and the Order. The Bequeathment laws provide for payment to the wife, affianced wife, or relative of, or person dependent on Charles McGregor, or person designated in the certificate. The defendant is the party designated in the certificate which the case admits. The Society refused to change the beneficiary. The case admits that even if there could be an assignment it could only be to certain classes and that the plaintiffs are not within any of such classes. The assignment to the plaintiffs is void. The statute 14 Geo. 3, c. 48, only operates to relieve an insurance company. But where money has been paid the recipient can retain it Worthington v. Curtis, 1 Ch. D. 419. Some one could sue the Society for the money, and if not the father, it was the executors. If the executors, it would be under the contract by which they were trustees. The trust was not created by Charles McGregor only, but by Charles and the Society, and both must concur to revoke it. The relation between the Society and Charles McGregor is a sort of partnership agreement with provision for payment of a share in a certain event. Parties band themselves together with an arrangement to pay a certain amount on death of each, not an absolute amount, but only what would be realized by a call, not to exceed the amount named in the certificate. At the time Charles McGregor became a member, the constitution then in force formed part of the agreement. The object was to secure a fund for relatives, freed from creditors.

KILLAM, J.-The plaintiffs are the executors of the will of Charles McGregor, deceased, who, in his lifetime, was a

member of an unincorporated society known as the Order 1896. of Scottish Clans. This society had a written constitution Judgment. in which its objects were stated to be:—

1. "To unite Scotchmen, sons of Scotchmen and their descendants of good moral character and possessed of some known reputable means of support, who are over eighteen and not exceeding fifty years of age.

2. To provide or establish a Bequeathment Fund, from which, on satisfactory evidence of the death of a member who has complied with all its lawful requirements, a sum not exceeding $2,000, $1,000, or $500, respectively, according to the class insured in, shall be paid to his beneficiary, as provided by the Constitution and Laws of the Order of Scottish Clans.

3. To establish a fund for the relief of sick members, and to ameliorate their condition in every reasonable manner.

4. To cultivate fond recollections of Scotland, its customs and amusements."

The Order consists of the Royal Clan, Grand Clans and Subordinate Clans, of which the chief and the fountain of authority is the Royal Clan. It enacts laws and regulations for the government of the other Clans, and supplies them with their constitutions, and may amend the constitution of the Order or of a Grand or a Subordinate Clan. The Subordinate Clans act under charters granted by the Royal Clan, and exist under the authority of the Royal Clan "while acting in conformity with the constitution, laws, rules and regulations of the said Royal Clan."

The constitution further provided as follows:--

Art. XII, Sec. 1-"Upon the death of an active member of the Order of Scottish Clans who has not failed to pay within the prescribed thirty days any bequeathment assessment, or is not six months in arrears for dues, a bequeathment from the Order, not exceeding $2,000, $1,000, or $500, respectively, according to class insured in, shall be raised by per capita assessment by the Subordinate Clans, and paid over to the Royal Clan, and by the Royal Clan through the Chief of the Subordinate Clan of which the deceased clansman was a member, and by him paid over to the beneficiary or beneficiaries of such deceased clansman, as provided by and subject to the provisions of the constitution and the bequeathment laws of the Order.”

Art. XIII, Sec. 1.-" Every Subordinate Clan shall forward to the Royal Secretary all applications for membership within three days after the applicant is initiated, and with each application one dollar to pay for a Bequeathment Certificate, and a Bequeathment Certificate

KILLAM, J.