of the insured, or to his personal representatives.

North Carolina. Little v. Caldwell (1912) 158 N. C. 351, 39 L.R.A. (N.S.) 450, 74 S. E. 10.

Pennsylvania. Jennings v. Grand Fraternity (1917) 67 Pa. Super. Ct. 139.

England. Cleaver v. Mutual Reserve Fund Life Asso. [1892] 1 Q. B. 147, 61 L. J. Q. B. N. S. 128, 66 L. T. N. S. 220, 40 Week. Rep. 230, 56 J. P. 180-C. A.

And it has been held that upon the death of the insured, in the absence of an eligible beneficiary, a resulting trust in favor of the insured's estate is created. Schmidt v. Northern Life Asso. (1900) 112 Iowa, 41, 51 L.R.A. 141, 84 Am. St. Rep. 323, 83 N. W. 300, supra, II.; Haskins v. Kendall (1893) 158 Mass. 224, 35 Am. St. Rep. 490, 33 N. E. 495; Cleaver v. Mutual Reserve Fund Life Asso. (Eng.) supra.

But this view has been expressly repudiated by other cases. Cook v. Supreme Conclave, I. O. H. (1909) 202 Mass. 85, 88 N. E. 584; 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, supra, II.

A member of a benefit society who, under its laws, has the power to designate the person to whom the benefits shall be paid and to designate

he can dispose of by contract or will, nor does such benefit descend to his the estate is not among the classes of beneficiaries named in the statute, he cannot designate his estate as a beneficiary. Supreme Colony, U. O. P. F. v. Towne (1914) 87 Conn. 644, 89 Atl. 264, Ann. Cas. 1916B, 181, supra.

Where the beneficiary's right to the funds on a certificate issued by a mutual benefit society is forfeited because she murdered the insured, the society cannot escape liability on the certificate, but the same may be enforced by the insured's administrator for the benefit of his estate, on the ground of a resulting trust created in favor of the estate by the forfeiture of the rights of the beneficiary named. Schmidt V. Northern Life Asso. (Iowa) supra. The court in reaching this conclusion followed the doctrine that where there has been no designation, or the designated beneficiary dies or was ineligible, the association holds the money in trust for the benefit of the estate of the insured, stating that, as the defendant had obligated itself to pay on the death of the insured, the rule of public policy denying the beneficiary in such case the right to recover on the policy should not be extended to defeat all claims thereon. And it was further stated that if the designation of the beneficiary was treated as a bequest the same result would follow, for a lapsed legacy descends to the heirs of the testator.

And under similar facts a like conclusion was reached in Cleaver v. Mutual Reserve Fund Life Asso. (Eng.) supra.

In Weiditschka v. Supreme Tent, K. M. (1919) 188 Iowa, 183, 170 N. W. 300, 175 N. W. 835, where the by-law which provided that, in case an ineligible beneficiary was named, the fund should revert to the association, was held invalid, the estate of the deceased member was held to be entitled to the benefit fund where the beneficiary designated by the member was ineligible.

Where the certificate of membership directed that the proceeds there

of should be paid to the member's estate, and the general purpose of the statute under which the order was organized, and of the constitution of the order, was to make suitable provision for the welfare of its members during their lifetime in cases of sickness or distress, and to provide for the legal and proper beneficiary after death, the word "estate," as thus used, will be construed to mean that the member designed the proceeds to go. to such person, being a competent beneficiary, as would take under his personal estate under the Statute of Distribution, so that the fund will not become a part of the general estate of the member to the extent that it will be liable for his debts or the payment of bequests under his will. Re Smith (1904) 42 Misc. 639, 87 N. Y. Supp. 725, holding that the father, who was alive at the time of the death of the member, was, under the Statute of Distribution, entitled to the proceeds, and directing that the funds should be paid to his administrator to be disposed of among his next of kin, he having died after the death of the son.

And in Henry v. Knights & Daughters of Tabor (1922) 156 Ark. 165, 246 S. W. 17, where the beneficiary, who had murdered the assured, was by reason of public policy forbidden to collect the benefit, it was held that the insurer would not be absolved from payment, but would be required to pay the benefit to the estate of the insured.

In Smith v. Supreme Tent, K. M. (1905) 127 Iowa, 115, 69 L.R.A. 174, 102 N. W. 830, in a action by the beneficiary named, who by statute was ineligible, against the insurance company, the proceeds were awarded to the father of the deceased, who was also the administrator of his estate, where the father had intervened and the insurance company did not resist the payment of the sum. And while the court stated that it had no occasion to elaborate on the question as to who was entitled to the proceeds, inasmuch as the association did not resist payment, yet it was well settled that where the beneficiary was

incapable of taking the proceeds under the law, the administrator of the deceased could recover as if no beneficiary had been named.

The personal representative of the assured, as against his widow, who was not designated as a beneficiary, and as against the personal representative of a beneficiary who had predeceased the insured, has been held entitled to the benefit, where the by-laws, in providing for the mode of paying the benefit, direct that they shall be paid by check payable to the beneficiary or the legal representative of the deceased member, the society having disclaimed all right to the fund, which it stood ready to pay as the court should direct. Order of Scottish Clans v. Reich (1916) 90 Conn. 511, 97 Atl. 863.

The by-laws of a mutual benefit association, which state that the purpose of the order is to provide a fund to be paid to the widow, orphans, or legal representatives of a member, should be given a liberal construction, and, when so construed, in a case where the beneficiary had predeceased the member and no other beneficiary had been designated, the proceeds go to the member's administrator, upon his death, for the benefit of the surviving wife and child, who are entitled to the amount they would inherit from the decedent in case of his intestacy, as if the fund were a part of his estate. Sykes v. Armstrong (1916) 111 Miss. 44, 71 So. 262. And the court further held that in no case where there are any of the class living who were designated as probable beneficiaries in the policy does the insurance entirely lapse, or is it uncollectable.

A certificate of membership in a mutual aid society, which designates the member's wife as beneficiary, is payable only to the wife in case of her surviving the husband, and where the wife dies prior to the death of the husband, a resulting trust in favor of his estate is created upon his death. Haskins v. Kendall (1893) 158 Mass. 224, 35 Am. St. Rep. 490, 33 N. E. 495, so holding notwithstanding a by-law of the society provided that

the member could not transfer the certificate without the wife's consent.

The brothers and sisters and nephews and nieces not living with or supported by the assured are not legal dependents within the meaning of a certificate of membership making the proceeds payable to such dependents, and the proceeds of the certificate are assets in the hands of the insured's administrator. Little V. Caldwell (1912) 158 N. C. 351, 39 L.R.A. (N.S.) 450, 74 S. E. 10.

The provisions of the constitution of a benefit fraternity that no beneficiary shall have a vested interest in the benefit certificate until it has matured upon the death of the member, and of a subsequent clause that "if a single cash payment has been specified in the certificate, the said sum shall be paid to the beneficiary, or her executors or administrators," must be construed together, and, when so construed, mean that the member may change the designation at any time before his death, but upon his death the money shall be paid to the beneficiary or her personal representative, so that where the beneficiary named in the certificate predeceases the member, the administrator of the beneficiary is, upon the death of the member, in the absence of another designation, entitled to the benefit. Jennings v. Grand Fraternity (1917) 67 Pa. Super. Ct. 139.

But it has been held that the administrator of a deceased member of a fraternal beneficiary organization. has no claim to the benefit fund due on a certificate of membership, where no beneficiary was named, by virtue of any vested interest which the member had in the fund at the time of his death, for the member had no right or interest therein which could pass to his estate. Order of Scottish Clans v. Reich (Conn.) supra.

IV. Heirs of member.

A majority of the cases hold that where there is a failure of the beneficiary, due either to a failure of the member to designate one, the ineligibility of the beneficiary designated,

or the death of the one designated before the death of the member, the fund will go to the member's heirs upon his death.

Smith v. Covenant

United States. Mut. Ben. Asso. (1885) 24 Fed. 685. Illinois.-Covenant Mut. Ben. Asso. v. Sears (1885) 114 Ill. 113, 29 N. E. 480; Baldwin v. Begley (1900) 185 Ill. 180, 56 N. E. 1065; Supreme Lodge, K. L. H. v. Menkhausen (1904) 209 Ill. 277, 65 L.R.A. 508, 101 Am. St. Rep. 239, 70 N. E. 567; Sanders v. Grand Lodge, A. O. U. W. (1910) 153 Ill. App. 7, affirmed in (1910) 246 Ill. 555, 99 N. E. 962; Women's Catholic Order of Foresters v. Heffernan (1917) 206 Ill. App. 70.

Iowa. Newman v. Covenant Mut. Ins. Asso. (1888) 76 Iowa, 56, 1 L.R.A. 659, 14 Am. St. Rep. 196, 40 N. W. 87; Bush v. Modern Woodmen (1915) 182 Iowa, 515, 152 N. W. 31, 162 N. W. 59. Kentucky. Hess v. Segenfelter (Morgan v. Segenfelter) (1907) 127 Ky. 348, 14 L.R.A. (N.S.) 1172, 128 Am. St. Rep. 343, 105 S. W. 476. Massachusetts. Sargent v. Supreme Lodge, K. H. (1893) 158 Mass. 557, 33 N. E. 650; Shea v. Massachusetts Benev. Asso. (1894) 160 Mass. 289, 39 Am. St. Rep. 475, 35 N. E. 855; Clarke v. Schwarzenberg (1894) 162 Mass. 98, 32 N. E. 7; Boyden v. Massachusetts Masonic L. Ins. Co. (1897) 167 Mass. 242, 45 N. E. 735.

Michigan.

Michigan Mut. Ben. Asso. v. Rolfe (1889) 76 Mich. 146, 42 N. W. 1094; Wolfe v. District Grand Lodge, I. O. B. B. (1894) 102 Mich. 23, 60 N. W. 445.

Minnesota. Devaney v. Ancient Order, H. L. I. F. (1913) 122 Minn. 221, 142 N. W. 316; Sharpless v. Grand Lodge, A. O. U. W. (1916) 135 Minn. 35, L.R.A.1917B, 670, 159 N. W. 1086.

New York.-Bishop v. Grand Lodge, E. O. M. A. (1889) 112 N. Y. 627, 20 N. E. 562; Simon v. O'Brien (1895) 87 Hun, 160, 33 N. Y. Supp. 815; Pfeifer v. Supreme Lodge, B. S. B. S. (1903) 173 N. Y. 418, 66 N. E. 108.

Camp, W. W. (1923) 90 Okla. 154,

A.L.R., 216 Pac. 467.

But see Supreme Colony, U. O. P. F. v. Towne (1914) 87 Conn. 644, 89 Atl. 264, Ann. Cas. 1916B, 181, supra, and Lamothe v. Société Laurier (1923) 244 Mass. 189, 134 N. E. 899.

The benefit fund, in an order organized for the purpose of furnishing benefits to the widow, heirs, etc., the by-laws of which provide that the benefit may be payable to the member's wife, husband, children, parents, or other blood relatives, does not lapse on the death of the member, where the beneficiary named in the membership certificate is precluded from taking because he murdered the member, but goes to the children of the deceased member as his heirs. Supreme Lodge, K. L. H. v. Menkhausen (1904) 209 Ill. 277, 65 L.R.A. 508, 101 Am. St. Rep. 239, 70 N. E. 567. The court treated the action as a suit to recover the benefit which the organization undertook by its constitution and by-laws to pay to the person, within certain classes, who should be designated by the member, and not as an action upon the certificate of membership in which the beneficiary who was precluded from taking was named.

Where the certificate of membership provides that the benefit fund is to be paid to the devisee of the member upon his death, the fund does not, upon the death of the member without a will, become a part of his estate, which can be recovered by the administrator. Worley v. Northwestern Masonic Aid Asso. (1882) 3 McCrary, 53, 10 Fed. 227.

But where the certificate provides that the benefit shall be payable to the member's devisees as provided in his last will, or, in the event of their prior death, to the legal heirs or devisees of the holder of the certificate, the legal heirs of the member are, in cases of intestacy, entitled to the fund. Smith v. Covenant Mut. Ben. Asso. (1885) 24 Fed. 685. It will be observed that the contract provision for the payment of the benefit in this case is distinguishable from the contract in the Worley Case

(Fed.) supra, which, from the report, appears to have made no provision for the payment of benefits except to the devisees named in the last will and testament.

And where the beneficiary has forfeited his right to the benefit by murdering the insured, the sole heir of the deceased, who would take in the event of the death of an eligible beneficiary before that of the member, in the absence of a subsequent designation, is entitled to the fund. Sharpless v. Grand Lodge, A. O. U. W. (1916) 135 Minn. 35, L.R.A.1917B, 670, 159 N. W. 1086.

In Pfeifer v. Supreme Lodge, B. S. B. S. (1903) 173 N. Y. 418, 66 N. E. 108, the fund was awarded to the next of kin of the member, where there was no designation of a beneficiary; the issuing of a certificate designating a beneficiary was held not to be a condition precedent to a right of recovery against the organization.

In Sargent v. Supreme Lodge, K. H. (1892) 158 Mass. 557, 33 N. E. 650, the court construed the by-laws, which provided that in the event of the death of all the beneficiaries selected by the member, before his decease, and his failure to make other disposition thereof, the benefit should be paid to the heirs of the deceased member, or, in case of failure of eligible heirs, that the benefit should revert, to entitle the heirs of the member to the benefit, where the beneficiary named in the certificate was, by statute, ineligible to take. to the same effect, see Shea v. Massachusetts Ben. Asso. (1893) 160 Mass. 289, 39 Am. St. Rep. 475, 35 N. E. 855.

And

In Bush v. Modern Woodmen (1915) 182 Iowa, 515, 152 N. W. 31, 162 N. W. 59, the plaintiff brought an action on a benefit certificate issued by the defendant society, in which she was named as beneficiary, and the heirs of the member intervened and claimed the proceeds on the ground that the plaintiff was ineligible as a beneficiary; the society admitted liability on the certificate and paid the money into court. A judgment in favor of the plaintiff was reversed on the inter

vener's appeal, the supreme court holding that the plaintiff was not entitled to become a beneficiary under the Iowa statute.

The fund under a membership certificate in a mutual benefit association formed for the purpose of affording financial aid and assistance to the widows and orphans, heirs or devisees, of its members, the by-laws of which provide that the sum, which is to be collected by assessments on other members, is to be payable to the devisees as provided in the member's last will, or, in the event of his prior death, to the legal heirs of the devisees, is payable to the heirs of a member who dies intestate, and does not revert to the association. Covenant Mut. Ben. Asso. v. Sears (1885) 114 III. 108, 29 N. E. 480. The court stated that the meaning evidently was that the money was to go to the devisees, if there were any, and, if not, then it should go to the heirs, and it would be doing great violence to the decedent's intention, in view of the purpose of the association, to hold that the money should not be paid over to the heirs in case of intestacy. Where from the agreed statement of facts it appears that the first beneficiary, the divorced wife of the member, is disqualified, and the second. beneficiary is prohibited from taking the insurance under statutes of the state and by-laws of the society applicable thereto, the minor children of the first beneficiary, the divorced wife of the member, as heirs of the member, are entitled to collect the insurance. Atkeson V. Sovereign Camp, W. O. W. (1923) 90 Okla. 154, A.L.R. 216 Pac. 467.

In Michigan Mut. Ben. Asso. v. Rolfe (1889) 76 Mich. 146, 42 N. W. 1094, it was said that the intention of the statute permitting corporations to be formed "for the purpose of securing to the families or heirs of any member, upon his death, a certain sum of money," was to secure a fund to the heirs of the member, and not to the heirs of the beneficiary, who was not a member, so that, where a beneficiary dies before the member, the heirs of the member are entitled to 31 A.L.R.-49.

the fund, as against the heirs of the beneficiary, in the absence of any new designation. In this case the fund was awarded to the member's father.

And in Wolf V. District Grand Lodge, I. O. B. B. (1894) 102 Mich. 23, 60 N. W. 445, it was said that in the absence of a devise or designation the heirs of the member of a mutual benefit association are entitled to the benefit fund, under the rule laid down in the Rolfe Case (Mich.) supra.

Where the beneficiary named in the certificate predeceased the insured, and there was no other designation of a beneficiary, and the by-laws provided that the benefits should be payable only to the family, heirs, blood relatives, dependents, etc., of the insured, it was held in Devaney v. Ancient Order, H. L. I. F. (1913) 122 Minn. 221, 142 N. W. 316, that the heirs of the insured were entitled to take the benefit as beneficiaries, and not by descent, there being no provision in the laws expressly covering the situation, and no claim being made that the fund should revert to the order, or that it should go to the heirs of the beneficiary.

In Hess v. Segenfelter (Morgan v. Segenfelter) (1907) 127 Ky. 348, 14 L.R.A. (N.S.) 1172, 128 Am. St. Rep. 343, 105 S. W. 476, where the beneficiary designated in a certificate of membership in a fraternal benefit organization was by statute ineligible, the court directed the fund to be paid to the only surviving sister of the member, who was also administratrix of his estate, the association having paid the money into court and interpleaded the parties.

A mutual benefit certificate made payable to the devisees of the insured becomes payable to his heirs in case he does not leave a will, for the right to the avails of the life insurance descends to the heirs, as any other property or chose in action, and the association cannot avoid its obligation by an alleged failure of beneficiaries. Newman v. Covenant Mut. Ins. Asso. (1888) 76 Iowa, 56, 1 L.R.A. 659, 14 Am. St. Rep. 196, 40 N. W. 87.