205 A.D. 503 | N.Y. App. Div. | 1923
When Ida Kiekebusch in 1913 married Otto Kiekebusch, it was understood that he would give her at his death $5,000 and no more, the balance of his estate to be divided among his three children. The doubtful competency of the witness whose testimony established that fact is disregarded.' In 1915 Otto made Ida the beneficiary under two insurance certificates in the Masonic Life Association for $5,000. On September 22, 1920, Otto told the secretary of the association that he wished to make his certificates payable to his estate instead of to his wife. He thereupon to that end executed two formal written instruments known as changes of designation. The rules of the association required in such cases the payment of a fee of $1 and the production of the certificates at its office so that the instruments executed by the member might be attached thereto. That was deemed equivalent to the issuance of new certificates. The rules further provided that if from any cause the member was unable to return the certificate he should state the reasons for such failure and the board of directors might then make the change notwithstanding. None of those things was done.
On the same day, after signing the changes of designation, Otto made a will which gave Ida $5,000 and certain household furniture, the bequest to be in lieu of dower and in full of all claims.
Otto died on November 7, 1920. Ida, claiming a right to take the insurance money as well as the bequest, brought action against the association. Plaintiff here, a daughter of Otto, brought this action in equity to compel the payment of the insurance money to the estate of Otto and to compel Ida to accept $5,000 in full of her claim. There was an order of interpleader. On the trial judgment was given for Ida. The court refused to find that there had been a change of beneficiary from Ida to the estate of Otto.
In such a contest between rival claimants it has been said that the question is one of title; and that the contract creating the power to appoint another beneficiary protects the existing beneficiary until the forms imposed upon the execution of the power have been substantially complied with. (Fink v. Fink, 171 N. Y. 616, 623.) Substantial compliance was found where the only imposed form lacking was the surrender of the old certificate, and it appeared that plaintiff, the beneficiary therein, refused to give it up after the assured had demanded it. (Lahey v. Lahey, 174
It is clear that the insured did not pursue the course pointed out by the laws of the association and did not do all in his power to change the beneficiary. Under such circumstances a court of equity will not act. (Supreme Conclave, Royal Adelphia v. Cappella, 41 Fed. Rep. 1.)
The judgment should be affirmed, with costs.
All concur; Clark, J., not sitting.
Judgment affirmed, with costs.
