| N.H. | Dec 5, 1885
The mutual contract between the husband of the plaintiff, Sarah A. Barton, and the defendant association, provided or a consideration to be paid as a condition of membership, and further sums to be paid annually and at other times as assessments, by one party, and a sum not exceeding $2,000, to be ascertained by rules certain, to be paid by the other party, on the death of the member, to any person designated by him, and is in form and substance a contract of life insurance. May on Ins. 1; Commonwealth v. Wetherbee,
The contract, though one of life insurance, must be interpreted according to its terms, in view of the laws of the defendant association and of the evident understanding of the parties. The by-laws provide that "when a member dies, the association shall pay within sixty days, to his direction as entered upon his certificate of membership, the sum of two thousand dollars," if the death assessments amount to that sum. The certificate of membership provides that "in accordance with the provisions and laws governing said association, a sum not exceeding $2,000 will be paid by the association as a benefit, upon due notice of his death and the surrender of the certificate, to such person or persons as he may, by entry on the record-book of the association or on the face of this certificate, direct, said sum to be paid provided he is in good standing when he dies." The power of direction as to the object of the benefit is given to the member both in the by-laws and certificate of membership, and there is nothing in either tending to show that the power is to be exercised at the time of becoming a member, or that, when exercised, the power is exhausted and another beneficiary cannot be substituted. The power of selection is unlimited as to persons, and is limited in time only by the death *538 of the member. The certificate remains in the possession and control of the member until death, and the provision for paying the benefit to the person named in the certificate at the death of the member, as then appears, leaves the power to appoint the beneficiary continuous until that event. The power of appointment is the one thing in the contract which is given to the member, and over that power no other person has any control. The right of its free exercise requires its continuance until death. The appointment by Barton of the plaintiff, his wife, to the benefit at the time he became a member, was no bar to his right to appoint another or others by a subsequent change. She was no party to the contract, and acquired no vested right in the benefit. The contract was between Barton, her husband, and the defendants, who, on the performance of the conditions of membership, agreed to pay the benefit to any person whose name might appear by his entry on the record-book or the face of the certificate at his death. The power of appointment being free and continuous, no right to the benefit could vest in the plaintiff until it became certain that her name remained in the certificate as beneficiary at her husband's death. If, by the entry of her name as beneficiary, the plaintiff acquired any interest whatever in the benefit, it was only a contingent interest, which her husband had the power to defeat, and which he has defeated, by exercising the power of substitution in the appointment of other beneficiaries.
Chapter 175, Gen. Laws, which gives the benefits of life insurance to the beneficiaries named in the contract to the exclusion of the creditors and personal representatives of the assured, does not attempt to control or interpret contracts of insurance, but protects beneficiaries, whoever they may be found to be, and has no application here. The plaintiffs, James W. and Betsey T. Barton, are entitled to the fund. There must be judgment for the defendants in the suit of Sarah A. Barton, and for the plaintiffs in the suit of James A. and Betsey T. Barton.
Judgment.
SMITH, J., did not sit: the others concurred.