1896. Judgment.

shall be issued to him by the Royal Secretary and returned to his Chief, who shall countersign the same and deliver it to him."

Sec. 2.-"Each applicant shall direct in his application to whom he KILLAM, J. desires his bequeathment paid. The beneficiary or beneficiaries may thereafter be changed, as provided in the Bequeathment Laws of the Order." Sec. 3.- -“A Bequeathment Certificate of a clansman shall not be changed, nor a new one issued, until the surrender of the original, except," &c., (providing for a case of loss.)

--

"Persons who pass the medical examination and pay full yearly dues and all assessments, shall be entitled to such benefits and the benefit of the Bequeathment Fund."

"No clansman can surrender his Bequeathment Certificate, or become suspended for the non-payment of bequeathment assessments, and remain an active member of the Order."

The constitution thus defined the term "Active Members "

"All above eighteen and not exceeding fifty years of age, respectively, at the time of their initiation, who have made application for a Bequeathment Certificate, have passed the medical examination, retain bequeathment membership, and who contribute such dues as are required by the by-laws of their Clan."

At the date of the admission of Charles McGregor as a member of the Order, there were in force certain Bequeathment Laws," enacted by the Royal Clan, among which were the following:

1. "There shall be a bequeathment from the Order of Scottish Clans payable within sixty days after due proof of the death of an active member. It shall be controlled by the Royal Clan."

2. "Such bequeathment shall be divided into three classes, A, B and C. The Clansman insuring in class A shall receive at death a sum not to exceed $2,000. . . . . Provided, however, that if a less sum than $2,000 is realized on an assessment, such sum shall be the amount received by the beneficiary or beneficiaries of a member dying in class A, as only one assessment shall be levied on account of any death occurring in the Order," &c.

4. "In the event of the death of a Clansman in good standing in any Subordinate Clan, the amount of bequeathment, as provided for by section 2, at the time of such Clansman's death, shall be paid by the Royal Clan to the beneficiary designated in his Bequeathment Certificate."

5. "No member shall assign his Bequeathment Certificate, nor shall such assignment, if made, be recognized by any officer of the Order, but such assignment shall be deemed void. Bequeathments

will be paid only to the beneficiary designated by the Clansman, or to 1896. the legal representative of such beneficiary.

Judgment, 7. "The Secretary of a Clan in which a death may occur, shall immediately send to the Royal Secretary a notice," &c., "accompanied KILLAM, J. by a certificate under the signature of the Chief and seal of the Clan, that the representatives, heirs, or assigns of such deceased member are entitled to the bequeathment, and stating the amount of all dues, fines and bequeathment assessments remaining unpaid by such deceased Clansman."

9. "The Royal Treasurer, upon due notice having been given to him of the death of a Clansman in good standing, shall forward the amount of the bequeathment, as at the time ordained by the Royal Clan, to the Subordinate Clan of which deceased Clansman was a member. And the Chief of such Subordinate Clan shall retain from such amount for said Subordinate Clan all unpaid dues, fines and bequeathment assessments, if any, owing by such deceased Clansman at the time of his death, and all expenses exceeding the final benefit that may have been incurred by such Clan for the proper interment of such deceased Clansman, and shall cause the balance to be paid to the beneficiaries, or the legal representatives of such beneficiaries of such deceased Clansman."

Provision was made for the surrender of a certificate in order to obtain one for a greater or a less amount.

And by section 15:—

"No Clansman can surrender his bequeathment, or failing to pay one bequeathment assessment can remain an active member of the Order."

When Chas. McGregor was admitted to the Order, he received a certificate bearing date the 8th December, 1891, which stated that he was entitled to the benefits of the Bequeathment Fund, conditioned that his statements in his application were true and that he should comply in future with the laws and regulations of the Order; and, further, stating that his beneficiary should be entitled to the amount realized by one assessment from the Clans, not to exceed $2,000, that the Clansman named as his beneficiary, "Duncan McGregor, father," subject to section 4 of the Bequeathment Constitution, and that no Clansman should be entitled to the bequeathment unless all his dues were paid in conformity with the constitution and by-laws of the Order.

In 1893, the 4th section of the Bequeathment Laws was amended so as to read as follows :

1896.

Judgment,

"In the event of the death of a Clausman in good standing in any Subordinate Clan, the amount of Bequeathment, as provided for in section 2, at the time of such Clansman's death, shall be paid by the KILLAM, J. Royal Clan to the wife, the affianced wife, or relatives of, or persons dependent upon said member as designated in his Bequeathment Certificate."

By his last will and testament, bearing date the 5th May, 1894, Chas. McGregor appointed the plaintiffs as his executors and trustees, devising and bequeathing to them all his real and personal estate, upon certain trusts, among which were payments of small legacies to different nurses, and one to the Winnipeg General Hospital, an annuity of $400 to his father for life, then to his step-mother for life, legacies to his brothers and a residuary bequest to his brothers. By this will he directed that his life assurance and the moneys arising therefrom should be paid to his executors for the purpose of carrying out the trusts of the will.

About the date of the will he also signed a memorandum indorsed on the bequeathment certificate, revoking his former directions as to the payment of the insurance due at his death, and authorizing and directing such payment to be made to the plaintiffs as his executors. He delivered the certificate, thus indorsed, to the plaintiffs, who handed it to the secretary of the Winnipeg branch of the Order, for the purpose of having it forwarded to the proper officials of the Order, to have the assignment in favor of the plaintiffs recognized by the Order. It was so forwarded, and those officials refused to recognize it on the ground that it was in contravention of the laws of the Order, and returned it to the plaintiffs. During the period occupied in the transmission to and from these officers, Chas. McGregor died, and the (so called) assignment to the plaintiffs was never recognized by the Order, which, however, recognizes its liability under the certificate, but refuses to pay until the rights of the parties are settled by a Court of competent jurisdiction.

The special case states that the plaintiffs are not, nor is either of them, the wife, affianced wife or relative of, or per

son dependent on, Chas. McGregor, or persons designated

in the certificate.

1896.

Judgment. On behalf of the plaintiffs it is contended that on Chas. KILLAM, J. McGregor's becoming a member of the Order there was raised, under the constitution and laws of the Order and the terms of the certificate, a contract by the Order with him to pay upon his death a sum of money to his father the defendant, but that, in view of his power to change the payee, there was no absolute trust, as between him and the father, and, the direction for payment to the father having been revoked, the moneys were recoverable by the executors for the benefit of the estate of the deceased. It has also been urged by the plaintiffs' counsel that Chas. McGregor had a right to substitute any persons whom he pleased as payees, and he having done all he could towards a substitution of the plaintiffs for the original payee, and the assent of the Order having been wrongfully refused, this is sufficient, at any rate in equity, to give the plaintiffs the right to the money.

For the defendant it was argued simply that the contract was one for payment to the party named in the certificate, to whose benefit the contract inured, and that the Order was under no obligation to accept nominees not within the classes enumerated in the amended rule No. 4.

Now, undoubtedly, a contractual relation of some kind was created by membership of the Order, and the first question is to determine the nature of this. In the present case there was no express promise by the Order as a body, either to Charles McGregor or to the defendant. The certificate states that "said Clansman is entitled to the benefits of the Bequeathment Fund, conditioned," &c. This, however, is not a distinct promise to pay him or the named beneficiaries. It is necessary to go back to the constitution and laws of the Order for the purpose of ascertaining what are the "benefits" referred to.

In In re William Phillips' Insurance, 23 Ch. D. 235, Lindley, L. J., said, " Prima facie, the money payable under a policy of insurance which a man effects on his own life, is

1896.

his own. But the rules of the society in which the insurJudgment. ance is effected may negative the probability." So that, to characterize the contract in the case as one of insurance, is to go a very short distance towards fully construing it.

KILLAM, J.

It has come to be the settled doctrine in the Courts of the United States that, in the case of a society having objects and a constitution similar to those of this Order, 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.

Apparently, the first case in which this was decided was that of The Maryland Mutual Benev. Society v. Clendinen, 44 Md. 429, cited in Mr. Bacon's Treatise on the Law of Benefit Societies and Life Insurance, at pp. 34 and 428, to the detailed report of which I have had no opportunity of referring. This was followed by Arthur v. The Oddfellows' Beneficial Association of Columbus, 29 Oh. St. 557, in which the same view was taken. See, for a full discussion of this point, pp. 426-440 of Mr. Bacon's work and particularly Greeno v. Greeno, 23 Hun. 479; Kepler v. The Supreme Lodge of the Knights of Honor, 45 Hun. 274; Hellenberg v. District No. 1 of the Independent Order of B'Nai Berith, 94 N. Y. 580; The American Legion of Honor v. Perry, 140 Mass. 580; Daniels v. Pratt, 143 Mass. 216; Highland v. Highland, 109 Ill. 366; Covenant Mutual Benefit Association of Illinois v. Sears, 114 Ill. 108; Masonic Benefit Association of Central Illinois v. Bunch, 19 S. W. Rep. 25; Wist v. The Grand Lodge of the Ancient Order of United Workmen, 29 Pac. Rep., 610.

This view of the right of the insured was taken in England in Ashby v. Costin, 21 Q. B. D., 401, a case of a Friendly Society, and in Attorney General v. Rowsell, 36 Ch. D. 67, n; Attorney General v. Abdy, 1 H. & C. 266; In re Pocock's Policy, L. R. 6 Ch. 445; In re William Phillips' Insurance, 23 Ch. D. 235; and Urquhart v. Butterfield, 36 Ch. D. 55, 37 Ch. D. 357. These latter cases related to a statutory fund from which payments were to be made on the deaths of contributing customs officials.