45 N.J. Eq. 466 | New York Court of Chancery | 1889
The complainant is a corporation organized under statutes ■of Massachusetts, authorizing the formation of corporations to raise a fund “ for the purpose of assisting the widows, orphans ■or other persons dependent upon deceased members.” Assistance is extended to persons of the classes named by giving such persons as become members of the corporation the right to appoint or designate which of them shall take, on his death, the •sum payable on the death of a member. When the complainant was organized as a corporation, the only persons who. could be appointed as beneficiaries of a member were his widow, his children or other persons dependent upon him. By a statute passed in 1.882 another class was added, namely, relatives of a deceased member, so that, after the statute of 1882 took effect, it was within the power of corporations like the complainant, formed under the laws of Massachusetts, to raise a fund “ for the purpose of assisting widows, orphans or other relatives of deceased members, or persons dependent upon deceased members.” Supreme Council American Legion of Honor v. Perry, 140 Mass. 580, 591; Massachusetts Foresters v. Callahan, 146 Mass. 391.
M. Henry Smith became a member of the complainant corporation in March, 1884. By the certificate of membership issued to him, the complainant bound itself to pay, out of its •benefit fund, on satisfactory proof of his death, and on the surrender of the certificate, to his wife, Hannah A. Smith, a sum not exceeding $5,000, provided he was in good standing in the order at the time of his death, and provided also, that the certificate had not been surrendered and another issued in its place in accordance with the by-laws of the corporation. The proofs show that Smith became a member of the complainant corporation at the request of his wife, under an arrangement by which she made a will- in his favor, and he, in return, obtained the certificate of membership for her benefit, and also, that she paid his
Smith and his wife were divorced from bed and board on the-12th day of April, 1888, by the decree of this court, at the suit, of the wife, for extreme cruelty, and he was ordered to pay her alimony. During the -latter part of April or early in May, 1888, Smith asked his wife to surrender to him the certificate issued by the complainant. She refused to do so, stating, that as she had furnished all the money paid on the certificate, she consid
The question to be decided is, which of the defendants, Hannah A. Smith or Thomas E. Smith, is entitled to the money in court? Hannah is the widow of M. Henry Smith, deceased. The decree of divorce a mensa et thoro did not dissolve their marriage bond. Though separated by the decree from his bed and board, Hannah still remained the wife of M. Henry Smith, and retained all the property rights incident to that relation to him, and on his death she became his widow, and as such succeeded to all the rights in his property which the law gives a widow in the property of her husband on his death. A divorce a mensa et thoro does not, where the common law has not been changed by statute, change the relation of the parties as to property. Its only effect, where the common law prevails, is to compel them to live apart, and to deprive the husband of his control over his wife. 2 Bish. Mar. & D. §§ 729, 730. But a divorce from the bond of matrimony affects the property rights of both parties. A divorce of that kind puts an end to any right which
From the foregoing statement it would seem to be entirely clear that Hannah is entitled to the fund in question, unless the attempt made by M. Henry Smith, in June, 1888, to change his-beneficiary was effectual to make his brother his beneficiary in
But it must also be said, that if M. Henry Smith’s appointee had been a person belonging to some one of the classes of bene
Inasmuch as the right of Hannah to the fund in question seems to me to be clear on other grounds, I have not thought it necessary to discuss the question, whether or not her husband,
A decree will be made directing the payment of the fund to Hannah. She is also entitled to costs.