But it has been held that an instruction to the effect that, where the by-laws of a fraternal organization provide that upon certain conditions it will pay a benefit to the beneficiaries of its member according to a certificate of endowment, the heirs at law of the member are entitled to take the benefit when the person designated by the deceased member is not within the class of persons mentioned who, under the statute, may be designated, was properly refused in the absence of any by-law providing for the payment of the fund to the member's heirs at law. Lamothe v. Société Laurier (1923) 244 Mass. 189, 138 N. E. 899.

In view of the general purpose of a corporation formed for the object of assisting and supporting members or their families in case of sickness, want, or death, a benefit fund which, under the laws of such corporation, is to be set aside to be paid over to the families, heirs, or legal representatives of the deceased or disabled members, or to such person as the deceased, while living, may have directed, will, in the absence of a certificate designating to whom the funds shall go, be distributed, as in cases of intestacy, as a special fund, subject to the exemption provided for in the act of incorporation, and not liable for the debts of decedent, or to be taken on process for the payment of such debts. Bishop v. Grand Lodge, E. O. M. A. (1899) 112 N. Y. 627, 20 N. E. 562. The issue in this case was made and tried as to the existence of any liability on the part of the defendant corporation. And to the same effect, see Simon v. O'Brien (1895) 87 Hun, 160, 33 N. Y. Supp. 815, holding that, as the member has a vested interest in the certificate, his legal representatives are entitled to the fund in case of his death without having designated a beneficiary.

But it has been held that, in case the beneficiary named in the certificate is ineligible, the heirs of the member are not entitled to the fund, in the absence of any provision in the by-laws of the association to that effect. Lamothe V. Société

Pennsylvania. Arthars v. Baird (1890) 20 Phila. 287.

Texas. Appleby v. Grand Lodge, S. H. (1920) Tex. Civ. App. 225 S. W. 588.

And see Masonic Mut. Relief Asso. v. McAuley (D. C.), and Given v. Wisconsin Odd Fellows' Mut. L. Ins. Co. (Wis.) infra, VI.

And in some cases the fund has been awarded to the widow and children of a deceased member. Supreme Lodge, N. E. O. P. v. Hine (1909) 82 Conn. 315, 73 Atl. 791; Kentucky Grangers' Mut. Ben. Soc. v. McGregor (1886) 7 Ky. L. Rep. 750 (abstract); Gibson v. Kentucky Grangers' Mut. Ben. Soc. (1886) 8 Ky. L. Rep. 520

(abstract); Carson v. Vicksburg Bank (1897) 75 Miss. 167, 37 L.R.A. 559, 65 Am. St. Rep. 596, 22 So. 1.

And see Beresh v. Supreme Lodge, K. H. and National Union v. Keefe (Ill.) infra. VI.

And it has been held that the fund will be awarded to the surviving children of a deceased member, in the absence of a beneficiary capable of taking. Sanders v. Grand Lodge, A. O. U. W. (1910) 153 Ill. App. 7, affirmed in (1910) 246 Ill. 555, 92 N. E. 962; Richmond v. Johnson (1881) 28 Minn. 447, 10 N. W. 596; Grand Lodge, A. O. U. W. v. Gandy (1902) 63 N. J. Eq. 692, 53 Atl. 142; Handwerker v. Diermeyer (1896) 96 Tenn. 619, 36 S. W. 869; Grand Lodge, O. S. H. V. Iselt (1896) Tex. Civ. App. - 37

S. W. 377; International Brotherhood,
M. W. E. v. Duncan (1917) Tex. Civ.
App. -
194 S. W. 956; Re Sons of
Scotland Benev. Asso. (1910) 2 Ont.
Week. N. 200.

In Sons & Daughters of Job v. Wilson (Ga.) supra, the holder of a benefit certificate failed to designate his beneficiary by a will, as provided in the by-laws of the association; the trial court, on evidence that it was the custom, whenever a member died without a will, to pay the assessment over to the members of the family, held that the widow of the member was entitled as against his estate; in affirming this judgment, the appellate court said that, as the primary purpose of the association was to take care of members during sickness and to contribute to the assistance of their dependents after their death, even in the absence of such evidence the benefit assessment should be paid to the member's family, where no beneficiary was designated, and not to the estate.

In Meinhardt v. Meinhardt (1912) 117 Md. 426, 83 Atl. 715, on the death of a member of a mutual benefit association, the court awarded the benefit fund to the legal wife of the member, from whom he had been separated for a number of years, where the beneficiary designated in the certificate, a woman with whom the defendant had illicitly lived after the separation from his legal wife, was by

statute ineligible to take; the society having paid the money into court to be distributed as the court might determine.

The benefit, in an association organized for the purpose of assisting "the widows or orphans, or such other person or persons as may hold an assignment of the certificate of membership at the time of the death of the member," is, upon the death of the member, in the absence of a written designation in the certificate of membership of a beneficiary to whom the fund should be paid, payable to the member's widow, and not to the administrators of his estate, where, at the time the certificate was issued, the by-laws provided that, in case no person was designated to receive the benefit, it should be payable to the widow for the use of herself and her minor children, notwithstanding that a subsequent bylaw had been passed, which the court assumed was applicable to the certificate in question, providing that the benefit should be paid to such person or persons as the membership certificate might require, who should have an insurable interest as provided in the section defining the objects of the association. Hadley v. Odd Fellows' Beneficial Asso. (Mass.) supra. The court stated that it thought the words, "to such person or persons as the member's certificate requires," were chosen in view of the circumstance that certificates were outstanding which designated no beneficiary, and which, when issued, had the effect of making the benefit payable to the widow, and that it was the intention that it should continue to be so payable unless the member made a change by designating another beneficiary in the manner pointed out by the amended by-laws. This construction, it was said, was the most consistent with the declared purposes of the association, and most in line with the statute regulating death benefit associations; while the other theory, that the intention of the by-laws was to make the benefit payable to the estate in the absence of explicit designation, would divert the fund from the

declared objects of the association, and tend to make the death benefit a simple life insurance, to be disposed of under the general laws regulating the succession.

Where the beneficiary department of a fraternal order was established to provide relief to members and their families in case of the death or total disability of the members, the benefit fund, upon the death of a member who has designated a person not eligible to take, goes to the widow as the sole member of the family. Lister v. Lister (1898) 73 Mo. App. 99.

In Arthars v. Baird (1890) 20 Phila. (Pa.) 287, a benefit fund in a fraternal organization the object of which was "to pledge the members to the payment of a stipulated sum to such beneficiary as a deceased member may have designated while living, under such restrictions and upon such conditions as the order may prescribe," was awarded to the member's widow as against the administrator of the named beneficiary, where the beneficiary named in the membership certificate had predeceased the member. There was, however, a provision in the by-laws which required a married member to name his wife, or wife and children, as beneficiaries. Nor could the administrator of the member recover the fund for the benefit of the estate, since the member has no individual property in the fund, but only a power to designate the beneficiary.

The widow and children, and not the creditors, are entitled to the benefit of an endowment certificate of a member of a fraternal organization, notwithstanding that the member had changed the beneficiary by substituting for his wife a person whom he intended to be nominal beneficiary as trustee for a creditor, where the constitution of the organization provided that the benefit should be for the persons related to or dependent upon the member, and should never be appropriated to the payment of a debt against his estate. Carson v. Vicksburg Bank (1897) 75 Miss. 167, 37 L.R.A. 559, 65 Am. St. Rep. 596, 22 So. 1. The by-laws provided, however,

that, upon the death of the beneficiary during the lifetime of the member, the fund should go to the widow and children if no new beneficiary were designated.

A creditor of a member of a mutual benefit society not being eligible as a beneficiary, in case such person is named as beneficiary, the certificate will be construed, in connection with the charter of the society, as a contract to pay to the widow and children of the insured the amount of the insurance (abstract opinion). Kentucky Grangers' Mut. Ben. Soc. v. McGregor (1886) 7 Ky. L. Rep. 750. And to the same effect, see Gibson v. Kentucky Grangers' Mut. Ben. Soc. (1886) 8 Ky. L. Rep. 520 (abstract).

An award of the district court, which apportions a fund due on a membership certificate in a beneficial association, which the association has paid into court, equally between the widow, who was the second wife, and the son of a deceased member who had died without designating a new beneficiary after the death of his first wife, is evidently fair and will not be disturbed at the instance of the son's guardian, where the by-laws provide that the fund is to be payable to the member's wife, or to such person or persons as he may subsequently direct. Rollins v. McHatton (1891) 16 Colo. 203, 25 Am. St. Rep. 260, 27 Pac. 264. The court stated that it was not called upon to consider what the result would have been if the society had refused to make the payment and asserted its right to a reversion; the implication from the opinion seems to be, however, that the court would have held that the fund would revert to the society, had the society interposed a claim therefor, as it is said that the son of the original beneficiary, who had predeceased the member, as her heir, had no right to the fund, as no interest had vested in the mother as beneficiary; and since the member had no interest in the fund, but only a power of appointment, the fund could not in any event become an asset of his estate.

A benefit fund due under a certifi

cate of a benevolent order, a by-law of which provides that "each member shall enter upon his application the name or names of the members of his family or those to whom he desires his benefit to be paid, subject to further disposal of the benefit as the member may hereafter direct," is payable to the children of the member upon his death following the death of his wife, who was named in his certificate of membership as beneficiary, in the absence of any new designation, and the children of the deceased wife by a former husband have no claim therein. Handwerker v. Diermeyer (1896) 96 Tenn. 619, 36 S. W. 869.

In Grand Lodge, A. O. U. W. v. Gandy (1902) 63 N. J. Eq. 692, 53 Atl. 142, a member designated an ineligible beneficiary, and the benefit fund. was awarded to the children of the member, the association having interpleaded the parties, and there being a by-law of the association providing that, in case of the death of the beneficiary during the lifetime of the member, the benefit should be paid to the widow, if living, or, if not, to the children, share and share alike, in case no new beneficiary were designated.

The surviving child of the insured, who is within the class specified by the statute as an eligible beneficiary, is entitled to the benefit fund upon the death of the parent, where an ineligible beneficiary has been designated. Sanders v. Grand Lodge, A. O. U. W. (1910) 153 Ill. App. 7, affirmed in (1910) 246 Ill. 555, 92 N. E. 962.

And in Grand Lodge, O. S. H. v. Islet (1896) Tex. Civ. App. 37 S. W. 377, the child of a deceased member of the benefit association, who was the only person entitled to receive the benefit under the charter, was awarded the fund, as against an ineligible beneficiary named in the certificate. The association in this case did not contest its liability, and in fact asserted that the fund belonged to the said child.

The amount of a benefit insurance certificate does not revert to the order issuing it, upon the death of the mem

And where the by-laws of an organization specifically provide who shall take in case the member dies without having legally designated the beneficiary, the estate of the person designated in the by-laws is entitled to collect upon the beneficiary's certificate, where the person named dies after the death of the member, but before the proceeds of the certificate have been collected. Beeson V. Brotherhood of Locomotive Firemen & Enginemen (1917) 101 Kan. 399, 166 Pac. 466.

Where a member of a mutual benefit insurance association names his wife as beneficiary in his certificate of membership therein, and the wife, who during her lifetime made a will devising her property to her husband for life, and after his death to their daughter, died prior to the death of the husband, who during his lifetime. made a will giving the proceeds of the certificate to his daughter, and the wills were properly probated, the proceeds of the said certificate, when paid by the insurance company, become the property of the daughter. Brew v. Clement (1893) 48 Kan. 386, 29 Pac. 704. There was in this case no question of the enforcement of the contract between the insurance company and any other person.

And in Re Sons of Scotland Benev. Asso. (1910) 2 Ont. Week. N. 200, the fund was awarded to the children of a deceased member, where the beneficiary named in the membership certificate predeceased the member, and the statute in effect provided that in case all the beneficiaries died before the member, the fund should go to the member's children, or, in case there were none, to his estate.

In Sovereign Camp, W. O. W. v. Muth (1920) 91 N. J. Eq. 460, 109 Atl. 853, a member of a fraternal

organization, following the death of his wife, designated as his beneficiary in the membership certificate held by him, his wife's stepdaughter, on whom he had become partially dependent, who, under the by-laws which provided that the beneficiaries under such certificate should be the wife, children, parents, brothers and sisters, or persons dependent upon the member, was ineligible as a beneficiary; upon the death of the member, the benefit being claimed by the beneficiary named and by the member's surviving sisters, the organization paid the money into court and interpleaded the parties. It was held that, as the organization had paid the fund into court, it would be treated in equity as the property of the member, and would be disposed of on equitable principles, and the sisters having shown no special interest in the fund, and there being no question of statutory prohibition or public policy involved, the fund was awarded to the stepdaughter in accordance with the member's wishes, notwithstanding that the by-laws further provided that in case of the death of all the beneficiaries named, and in the absence of a new designation, and in the absence of wife and children, the benefit should be paid to the next living relation of the member in the order named in the section designating the eligible beneficiaries.

VI. Persons in eligible classes of beneficiaries.

In cases where a statute or the by-laws or constitution of the society name the classes of persons who may become beneficiaries, it has been generally held, in case of failure or invalid designation of a beneficiary, and in the absence of express provisions governing such event, that the benefit will go to those belonging to the classes named in the statute or bylaws as eligible beneficiaries, in the order named.

E. O. P. v. Hine (1909) 82 Conn. 315, 73 Atl. 791 (widow and children to exclusion of ineligible beneficiary); Supreme Colony, U. O. P. F. v. Towne (1914) 87 Conn. 644, 89 Atl. 264, Ann. Cas. 1916B, 181 (surviving eligible beneficiary against estates of member and of deceased beneficiary).

District of Columbia.

Masonic Mut. Relief Asso. v. McAuley (1882) 2 Mackey, 70 (widow against personal representative of deceased beneficiary).

Illinois. Chicago Guaranty Fund Life Soc. v. Wheeler (1898) 79 Ill. App. 241; Beresh v. Supreme Lodge, K. H. (1912) 255 Ill. 122, 99 N. E. 349 (widow and adopted son as against ineligible beneficiary); Grand Lodge, A. O. U. W. v. Ehlman (1910) 246 Ill. 555, 92 N. E. 962 (insured's heirs against ineligible beneficiary); Starcke v. Plattduetsche Grot Gilde (1911) 166 Ill. App. 146 (widow of insured); Royal League v. Shields (1911) 251 Ill. 250, 36 L.R.A. (N.S.) 208, 96 N. E. 45 (heirs of insured); National Union v. Keefe (1914) 263 Ill. 453, 105 N. E. 319, Ann. Cas. 1915C, 271 (wife and child).

Kansas. Boice v. Shepard (1918) 78 Kan. 308, 96 Pac. 485 (father entitled, as against insured's administrátor).

Rhode Island. Monroe v. Providence Permanent Firemen's Relief Asso. (1896) 19 R. I. 491, 34 Atl. 997. Texas. Grand Lodge, C. K. P. v. Mackey (1907) Tex. Civ. App. 104 S. W. 907; Carr v. Grand Lodge, U. B. F. (1916) Tex. Civ. App. 189 S. W. 510 (husband against ineligible beneficiary); International Brotherhood, M. W. E. v. Duncan (1917) Tex. Civ. App. -, 194 S. W. 956 (surviving children); Appleby v. Grand Lodge, S. A. (1920) — Tex. Civ. App., 225 S. W. 588 (second wife); Grand Ct. O. C. v. Welch (1923) Tex. Civ. App. (father).

Wisconsin.

250 S. W. 457

Given v. Wisconsin

Odd Fellows' Mut. L. Ins. Co. (1888)