7 Daly 168 | New York Court of Common Pleas | 1877
The Central Verein of Hermann's Sons is a benevolent association which was formed in the year 1867 under the general act for the incorporation of such societies. It is a sort of mutual life insurance society, only th&se who belong to the order called the Sons of Hermann being eligible to membership in the Central Verein. One Philip Durian became a member of the Central Verein in the year 1867, soon after its formation. At the time Durian joined the association he was living with his wife Catherine, who is now his widow. About two years after-wards Catherine went to Europe, and during her absence Philip begun living with the plaintiff in this action, who adopted his name, and passed as his lawful wife until the time of his death. After Catherine returned from Europe, she probably married a man called Roth.' Philip Durian died in the year 1875. For some time prior to his death, the plaintiff paid with her own money Philip’s dues'to the Verein.
At the time Philip became a member of the Verein, the constitution provided as follows : “ At the death of a brother of this Central Society, every member must pay one dollar, ........and the amount is to be paid over in three months to the widow, or the minor children, or in their absence to such person or persons as he may have indicated to the Central Society in writing before his death.” For the purpose of defeating the plaintiff’s claim in this action, the defendant contends that that article of the constitution is in
It will be seen that the argument of the defendant denies the right of the Verein to make any changes in its constitution, or to pass any by-laws, or to impose any conditions or restrictions whatsoever, even with the consent of a member,, which shall affect the claims of the wife of that member. It is contended, in other words, that the moment a new member was admitted into the Verein under the constitution of 1867, the-right of his wife to the money payable at his death became fixed and vested, and, except, in case of forfeiture, the Verein and the husband, together or separately, could make no-change in the constitution or in their agreement that would cut the wife off. Although that is the position taken by the defendant on the argument of this appeal, the Verein has repeatedly changed its constitution, and prescribed many conditions upon existing members, some as safeguards against fraud, and some to enlarge the power of members to dispose-of insurance money payable. Thus, in 1870, the constitution was amended so as to provide, that “ In case of the death of a brother, the society assumes the obligation to> pay the round sum of #500 to those he leaves behind! (widow, children, or such other person as he shall designate,, more particularly before his death), within thirty days after his decease.” It will be seen that the amendment dispenses-with the requirement that the designation shall be m writing,. ■ and that it omits the provision that other persons can be-designated to receive the money only in the absence of a widow or children. In 1872, the constitution was again
In 1874 an article was added to the constitution which requires that “ the names of the wives of the members shall he registered,” and provides that “ no payment shall be made to any person whose name is not entered on the register as prescribed.”
Philip Durian, in compliance with that article of the constitution, directed the name of the plaintiff: to be registered as that of his wife, and her' name was accordingly so-entered upon the register.
It may be observed in passing, that according to the argument urged by the defendant, the article of the constitution providing for the registry of the names of wives, and making-such registry a condition of paying the insurance money, was null and void as against the wives of all members who had, joined the Verein before the article was adopted. It would, follow therefrom that the fact of the non-appearance of the name of Catherine Durian on the registry did not impair her right to the money, and that the defendant, upon its own showing, had no valid excuse for refusing to pay her.
The statutes of New York, as well as the statutes of almost every State in the Union, have made provision for saving to the wife and- children of a party the amount for which his life shall be insured. They protect the family of the insured against his creditors, and his wife against herself.. (Eadie v. Slimmon, 26 N. Y. 9; Barry v. Equitable Life Assurance Soc. 59 N. Y. 587.) Under the legislation of most of the States, a husband, after taking out a policy for the benefit, of his wife and children, can not assign it, or dispose of it by will. It was said in Gould v. Emerson (99 Mass. 154) that even without any legislation, it was possible that, by the-general principles of equity jurisprudence, a policy on the
I doubt if the counsel for the defendant would contend that the Central Verein was subject to the control of the •superintendent of the Department of Insurance, and obliged to conform to the laws respecting life insurance companies. The Verein is a corporation, but it is not restricted by law as to the methods of accomplishing the benevolent designs to jpromote which it was organized. It issues no policies. Is it true, as the defendant contends, that the constitution for the time being is a policy, and that a member, who by joining the society accepts that constitution, cannot consent to change it, because he would, in fact, be varying the terms of a policy to which another had the sole and indefeasible title ? ■Such certainly has not been the understanding of Hermann’s 'Sons. Those who have joined the Verein since 1870 have 'been at liberty to select others than members of their own families as appointees to receive the insurance money, and the association has repeatedly re-adopted the provision of the constitution which confers that power. It cannot, therefore, be, as the learned judge at special term below supposed,
Charles P. Daly, Ch. J., and Joseph F. Daly, J., concurred.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.