2 N.Y.S. 794 | N.Y. Sup. Ct. | 1888
William Rothschild, who was then unmarried, in 1874 became a member of the Independent Order of Free Sons of Israel, which was
“I, the undersigned, member of the Standard Lodge No. 30 I. O. F. S. of I., do hereby declare, of my own free will, that the money, according to the endowment law of this district, amounting to one thousand'dollars, should be paid after my demise to my uncle and aunt, Simon and Yandel Sanger, except otherwise by me directed. W. Rothschild.
“Witness: Henry Levy.
“Moses Lighten alter. ”
And it is under the designation that the plaintiff in his own behalf, and as administrator of his wife, Yandel Sanger, claims this sum of money. Rothschild married the defendant on the 4th of May, 1884, and died on the 15th of January, 1888, leaving his widow surviving him, but no children; and she individually, and also as administratrix, claims the same sum of money. Which of these parties has the better title to the money in controversy must be determined by the constitution or by-laws of the association. Greeno v. Greeno, 23 Hun, 478, 482, where it was held “that it was not in the power of the company, or of the member, or both, to alter the rights of those who by charter are declared to be beneficiaries, except in the mode and to the extent therein indicated;” and the cases of Insurance Co. v. Miller, 13 Bush, 489; Duvall v. Goodson, 79 Ky. 224; Assurance Fund v. Allen, 106 Ind. 593, 7 N. E. Rep. 317; Addison v. Association, 144 Mass. 591, 12 N. E. Rep. 407: Kaiser v. Kaiser, 1 N. Y. St. Rep. 258; Hellenberg v. District No. 1, 94 N. Y. 580; Massey v. Society, 102 N. Y. 523, 7 N. E. Rep. 619,—support this principle. The title to the fund, therefore, becomes a question of construction of the language employed in framing the constitution or by-laws in force and operative upon these parties.
At the time when the written designation for the payment of the $1,000 was made, and which was the only designation made in writing by the deceased member, the constitution of the society declared by section 2 that the object of this fund shall be to secure the sum of $1,000, after the death of a member; and this amount shall be paid, in the first instance, to his wife or children, as hereinafter provided by section 6; or, secondly, if his wife be dead, to his children. No other person shall be entitled thereto, unless a brother shall have so designated in writing to his lodge, as hereinafter provided. And by section 6, in this manner referred to, further, that “a married brother may bequeath one-half of the legal amount to either one or all of his children; five hundred dollars, at least must be devised to his widow.” In 1885, and again in 1887, changes were made in the constitution or by-laws of the order concerning the payment of this sum of money, but in no way advancing the rights or claims of the plaintiff, either individually or as administratrix, but, so far as the changes extended, they appear to have been intended more definitely and distinctly to provide for the widow and the children of the deceased member than that had been done by the constitution or by-laws in force when this written designation was made. If, therefore, the plaintiff, as the widow of this deceased member, became entitled to the money under the constitution or by-laws existing when the written designation was made, a judgment to that effect must be directed in the action, without rendering it in any respect dependent upon more favorable action after-wards taken in her behalf by the association or society; and, as the wife and widow of the member, the constitution or by-law already quoted secured to her this sum of money, inasmuch as no bequest of any part of it was at any time made, or could have been made, to children of the deceased member. As to the widow, no designation in writing was required; for it was declared, in plain lan
Van Brunt, P. J., and Brady, J., concur.