95 Mich. 123 | Mich. | 1893
February 7, 1879, one Noah H. Eckler made application for membership in the endowment rank of the order of the Knights of Pythias. He was admitted to membership, and his application and certificates designated his wife, Ella, as the beneficiary. October 19, 1885, he made applic-tion to be- transferred to the fourth-class. In this application he named, as the beneficiary, his wife, Ella Eckler, or, in ease of her death, his minor son, Charles W. Eckler. After the death of his wife, Ella, Mr. Eckler married the plaintiff. Upon his death the defendant was appointed guardian of Charles. Due proof was made of the death of Ella and'Mr. Eckler, and thereupon the order paid the money to defendant, as the guardian of the child. It appears that the officers of the order had no knowledge, at or before the payment, that Mr. Eckler had remarried. He had no children by his second marriage. Plaintiff, brought this suit in assumpsit to recover one-half the money paid to defendant, under the statute of descents.
The constitution of the order provides that—
“Each applicant for membership and each applicant for re-admission in the endowment rank shall designate in his*125 application some person or persons, related to or dependent upon him for support, to whom the benefit shall be paid when due.”
The name or names of the persons so designated are required to be inserted in the certificate, unless it be made payable to “the wife and children.”
The constitution provides that any member desiring to change the name of his beneficiary shall make a written request to the secretary of the section, upon a blank to. be furnished by the supreme secretary. This application, with the original certificate, must be sent to the proper officer. These papers are then attached to the original-application, and a new certificate is issued, containing the name or names, of the substituted beneficiary or beneficiaries.
Mr. Eckler was- the owner of two certificates, — one in the first class, and one in the second. These certificates were surrendered with the application. TJpon the surrender of these certificates with the application, he received a certificate of membership in the fourth class, which was in force at the time of his death, and the one upon which the insurance was paid. In this certificate it was stated, among other things, that it was issued—
“In consideration of the representations and declarations made in his application, bearing date of February 7, 1879, and his absolute surrender of the certificates heretofore held by him in the first and second classes for cancellation, as requested in his application for transfer to the fourth class, bearing date October 19, 1885, all of which is made a part of this contract.”
This certificate named his wife, Ella Eckler, as the beneficiary, “ or such other person or persons as he may subsequently direct by change of beneficiary entered upon the records of the supreme secretary of the endowment rank.”
The principal question presented is, which clause desig
It is insisted that Mr. Eckler, by accepting and keeping the certificate without objection, assented to the designation, and that his representatives are therefore bound by
The judgment must be reversed, and judgment entered here for the defendant.