126 Ill. 387
Ill.
1888
Mr. Justice Bailey

delivered the opinion of the Court:

The amount involved in the case of Stubbings vs. The Supreme Council of the Boyal League and Cornelia Martin is only $474.76. It is true the amount found due from the Supreme Council of the Boyal League on the membership certificate of Heal K. Martin, deceased, was $1023.28, but of that sum $548.52 was ordered to be paid and was in fact paid to Cornelia Martin, and only $474.76 was ordered to be paid to Stubbings. The Supreme Council of the Boyal League is not complaining, the writ of error having been sued out by Cornelia Martin alone. As between her and Stubbings, the only parties to the present controversy, only $474.76, or less than $1000 is involved. There is no certificate by the judges of the Appellate Court that the case involves questions of law of such importance, either on account of principal or collateral interests, that it should be passed upon by this court. It follows that in that case the writ of error was improvidently issued, and it must therefore be dismissed.

In the other case, the one involving the certificate of membership in the Knights Templars and Masons’ Life Indemnity Company, Mrs. Martin bases her right, as against Stubbings, to receive the money payable on said certificate on two grounds, . first, that there, was' no sufficient legal consideration to support either the note executed by her and her husband to Stubbings or the assignment to him of the certificate of membership, and second, that during Martin’s lifetime said certificate was not assignable so as to vest in the assignee the right to receive the money payable thereon at Martin’s death.

In support of the first of these propositions counsel have sought to avail themselves of the principles discussed and adopted by the Appellate Court when the case was before that court on motion to vacate the judgment against Mrs. Martin entered on said note by confession. See Martin v. Stubbings, 20 Ill. App. 381. In that case, it will be observed, the decision was based upon the facts established by certain ex parte affidavits, which, for the purposes of the decision, the court was compelled to take as true. The facts thus shown were, among others, that at the time the note was given the partnership had not been dissolved, but continued after its execution and was dissolved only by the subsequent death of Martin; that,no accounting took place and no balance was struck in Martin’s lifetime; that the consideration of the note was an estimated balance which was not arrived at by any accounting, and wras not regarded or treated by the parties as the true balance, but was subject to correction when an accounting should be had and a balance -ascertained. A state of facts entirely different and calling for an application of entirely different rules of law was presented by the pleadings and proofs at the hearing in the present case. That the partnership was in fact dissolved at the time the note was given is now placed beyond the possibility of question, by the express covenant of the parties in their new articles of co-partnership that such was the ease. It also appears without' contradiction that a most careful and thorough accounting was had in respect to all the business of the firm down to January 1,1886, which showed that Martin, who contributed nothing to the capital of the firm and whose interest was only in the profits, had drawn out his entire share of the profits and the sum of $3411.66 in addition thereto. Had the firm been dissolved January 1, Martin would, according to the accounting, have been indebted to Stubbings in the sum above mentioned. The evidence fails to show whether or to what extent the accounts between the parties were affected by the firm business transacted between January 1 and April 16, the date of the new partnership agreement, but the presumption may be indulged in that very little if any business was transacted during that interval. However that may be, it was clearly competent for the parties, on dissolving their co-partnership, to agree upon the balance due, if they saw fit to do so, without a new accounting. It was competent for them to adopt the balance of January 1 as the true one, and disregard subsequent transactions, and this they are clearly shown to have done. The firm being dissolved and the amount due from Martin to Stubbings being ascertained and agreed upon, such balance constituted an individual indebtedness from Martin to Stubbings which was a sufficient consideration both for the note and for the assignment of the certificates of membership.

But this is not all. The execution of the new articles of co-partnership was" a consideration sufficient to support Mrs. Martin’s execution of the note as surety. It should be observed that the note recites no particular consideration, and it is therefore admissible in order to establish the liability of any of the parties to it, to resort to extrinsic evidence to show a consideration. See Martin v. Stubbings, 27 Ill. App. 121, and authorities there cited. The execution of the note by Martin and wife and the deposit with Stubbings of Martin’s certificates of membership as collateral security, was the inducement to Stubbings to consent to a new co-partnership, instead of terminating his business relations with Martin per-emptorily and at once. There can he no doubt that the note ' and collaterals were given to obtain a renewal of the partnership relation, and such renewal, coupled with the existing and admitted indebtedness from Martin to Stubbings, was a sufficient consideration for Mrs. Martin’s signature and for the deposit of the collaterals. f

The question remains whether the certificate of membership in the Knights Templars and Masons’ Life Indemnity Company was assignable in Martin’s lifetime so as to vest in the assignee the right to receive the money payable thereon at Martin’s death. This question is, we think, substantially settled by the decision of this court in Bloomington Mutual Benefit Association v. Blue, 120 Ill. 121. Counsel, however, have seen proper to re-argue it at considerable length, and we have therefore been disposed to reconsider the question in the light of t.he numerous authorities to which our attention is now directed.

It should be observed that the question comes up here in'a somewhat different form from the one presented in the case last cited. There the controversy was between the mutual benefit society and the person to whom the fund, by the terms of the membership certificate, was made payable. The society denied its liability on the ground that the person to whom the money was appointed to be paid was not one of those enumerated by the statute as proper beneficiaries. Here the society admits its liability, and the only question now is, to which of two parties, the assignee or the widow, the money admitted to be due shall be paid. The court has decreed it to the assignee, and the decree must be" affirmed unless the widow has succeeded in establishing a better title. She being the only one complaining, if she has failed to prove title to the money, it is quite unimportant here what disposition the court has made of it, since no one having a right to do so is calling such disposition in question.

A mutual benefit society is not a life insurance company in the restricted sense in which that term is used in our statute in relation to life insurance -companies, nor is a certificate of membership in such society a policy of life insurance in the same restricted sense of the term, yet it is manifest that such membership certificate is in the nature of a mutual life insurance policy. Commonwealth v. Wetherbee, 105 Mass. 161 ; State v. Benevolent Society, 72 Mo. 146; Supreme Commandery v. Ainsworth, 71 Ala. 436; Sherman v. Commonwealth, 82 Ky. 102; State v. Vigilant Ins. Co. 30 Kan. 585; State v. Northwestern Mutual Life Ins. Co. 16 Neb. 549; State v. Mutual Benefit Association, 18 id. 276; Illinois Masons’ Benevolent Society v. Winthrop, 85 Ill. 537; Illinois Masons’ Benevolent Society v. Baldwin, 86 id. 479; Niblack on Mutual Benefit Societies, 193. Such contracts are therefore subject to the rules of law governing life insurance policies, except so far as those rules must be held to be modified by the peculiar organization, objects and policy of such societies.

While it is a general rule that no person can procure a valid insurance on the life of another unless he has an insurable interest in such life, policies issued where there is no such interest being deemed to be mere wager policies, yet the rule seems to be that a person having insured his own life, may, by an assignment of the policy, provide for the payment of the insurance money to an assignee who has no insurable interest in his life. See authorities cited in Bloomington Mutual Benefit Association v. Blue, supra. A fortiori may he make such assignment to a person having such insurable interest. In this case Stubbings was a creditor of Martin, and so had an insurable interest in his life. Bliss on Life Insurance, secs. 13, 27. He might have taken out a policy of insurance directly on the life of his debtor, and there can therefore be no doubt that had the case been one of an ordinary life policy taken out by Martin on his own life and for his own benefit, the assignment of such policy by him to Stubbings would have been perfectly valid, and would have vested in the latter the right to receive the insurance money at Martin’s death.

If any different rule applies in this case, such rule must find its basis either in the terms of the contract evidenced by the certificate of membership, or in the provisions or policy of the statute under which the certificate of membership was issued. It must be admitted that there is neither in the statute or contract any express prohibition of an assignment by a member of his certificate of membership to his creditor, so as to constitute such creditor a beneficiary of the fund payable at the member’s death. But the position taken by counsel is, that the policy of the statute is to limit the persons who may become beneficiaries to certain enumerated classes, and that such limitation is implied in the provisions both of the statute and contract.

Most of the decisions seem to concur in holding that, in case of mutual benefit societies, the beneficiary named in the eer- . tificate of membership acquires no vested right to the benefit to accrue upon the death of the member, until such death occurs. The member may therefore, during his lifetime, exercise, the power of appointment, without other limits or restrictions than such as are imposed by the organic law of the society or the rules and regulations adopted in conformity therewith. Masonic Mutual Benefit Society v. Burkhart, 110 Ind. 189; Presbyterian Mutual Assurance Fund v. Allen, 106 id. 593; Splawn v. Crew, 60 Texas, 532; Johnson v. Van Epps, 110 Ill. 551; Niblack on Mutual Benefit Societies, sec. 201. All the beneficiary has during the lifetime of the member, owing to the member’s right of revocation, is a. mere expectancy, dependent upon the will and act of the holder- of the certificate. Cases where a different rule has been announced seem to be confined to those where the organic law of the society prohibits a change in the beneficiary first designated.

In the present case, the power of revoking or changing the appointment of the beneficiary was reserved to Martin by the terms of the contract in the broadest possible manner. By his application for membership Mrs. Martin was designated as beneficiary, unless he should otherwise order in his lifetime or by his will, and in substantial compliance with the application, the certificate named as beneficiaries, his widow, children or heirs, in the order named, unless otherwise ordered by him during his lifetime or by his will. The constitution of the society which was incorporated into and made a part of the certificate of membership, provided that any member, having designated his beneficiary or beneficiaries, might change the same at his pleasure, without notice to or consent of the beneficiary or beneficiaries, and that all accepting any interest in the certificate or the society, did so upon those express terms. Under these circumstances it is perfectly clear that Mrs. Martin had no vested interest or property rights in the certificate of membership or the moneys to become payable thereunder, during the lifetime of her husband, and that the certificate, at the time it was assigned to Stubbings, was subject to the absolute control of Martin, and that it was then in his power, either with or without the consent of his wife, to make any disposition of it which did not conflict with the terms of the contract .itself, or the organic law of the society.

Was there either in the statute under which the society was organized, or in the constitution of the society, an implied limitation or restriction upon Martin’s power of appointment of beneficiaries which made it unlawful for him to assign the certificate to his creditor as security for his debt ? The first section of the statute under which the society was organized provides for the organization of corporations, associations or societies for the purpose of furnishing life indemnity or pecuniary benefits to the widows, orphans, heirs, or relatives by consanguinity or affinity, devisees or legatees, of deceased members, and the constitution of the society, in enumerating the objects for which the society was organized, follows precisely the language of the statute. It can not be contended that Stuhbings ■ could by any possibility, be included within the meaning of the terms, “widow, orphans, heirs, or relatives by consanguinity or affinity,” nor can he be properly classed as a “legatee or devisee,” as he could be made such only by Martin’s will.

It is clear, however, that the statute, by empowering a member'to name as his beneficiary his legatee or devisee, without restriction, proceeds upon a policy much broader than do those statutes which limit the benefits to accrue upon the death of the member to his relatives or those in some way dependent upon him. Under the name of legatee or devisee, the member is given the power.to appoint as his beneficiary any person however related to him or not related to him at all. He may, in the selection of his beneficiary, be governed by considerations of affection or duty, or he may yield to the dictates of mere caprice, subject only to the limitation that the appointment be made by will. The legislature having thus enlarged the category of those capable of being selected as beneficiaries so as to include all persons whom the member may see fit to select as his legatees or devisees, we can perceive no substantial rule of public policy which would be violated by the adoption of a different mode of selection of a beneficiary. No substantial rights of any party are better secured or protected by one mode of appointment than by another. The mode of selection is mere matter of form and does not go to the substance of the right to select beneficiaries.

We are aware that upon the general proposition we are discussing the decisions of the courts are not altogether harmonious, and that some courts of high respectability have reached a different conclusion. Those decisions, however, so far as . i we have been able.to examine them, seem to be based upon statutes essentially different from ours. Thus, Briggs v. Earll, 139 Mass. 473, was a case arising under a membership certificate where the purposes for which the society could be formed were strictly limited by statute to rendering assistance to the widows and orphans of deceased members and the persons dependent upon them. It was there held that an assignment of the membership certificate as security for a debt was invalid. In Dietrich v. Madison Relief Association, 45 Wis. 79, the charter of the association declared that its business should be to afford relief to the widows and children of deceased members, and that to such business it should be limited and restricted, and it was held that an assignment by a member of his membership certificate to the association to secure a debt .which he owed to it was void by reason of the want of authority in the association to take it. Authorities of the class to which the foregoing belong manifestly have no application, here.

The assignment of the certificate of membership to Stubbings is not within the strict letter of the statute but in the absence of all negative words forbidding the appointment of a beneficiary in any other mode than the one prescribed, the assignment to him is not necessarily unlawful and therefore void. He was a person capable under the statute of becoming a beneficiary, and the absolute right of naming him as such was in Martin. His failure to adopt the mode prescribed by the statute, that is by executing a will making Stubbings his legatee, was doubtless a matter of which the society could probably object, but Mrs. Martin had no rights in the certificate which could justify her in interposing an objection. She was to all intents and purposes a stranger to the transaction. Her rights could arise only upon the death of Martin, and then only in case he had wholly failed to make a valid and effectual appointment of another beneficiary in her place.

"It can not"be doubted that Martin at any time before his death, so long as the membership certificate was his property and subject to his absolute dominion and control, might have surrendered it to the company for cancellation. If he had done,so his wife would have had no legal ground of complaint. The power of designating his 'beneficiaries being wholly under Ms control, he had the power of determining who should not as well as who should be such beneficiaries. In making the assignment of the certificate to Stubbings he appointed him to receive the benefit to accrue at Ms death to the extent of the debt due him, and by the same act he revoked the appointment of Mrs. Martin as a beneficiary to the same extent. She being no longer a beneficiary, has no interest which can give her a standing to contest the validity of the assignment to Stubbings, and the society having recognized the validity of said assignment, and professed a willingness to pay the money to him, there was no error of which Mrs. Martin can complain - in the decree of the court ordering such payment to be made.

We find no error in the record, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.