101 N.Y.S. 867 | N.Y. App. Div. | 1906
The judgment should be affirmed, with costs.
The action is in equity to determine.the interests of the plaintiff and the defendants McIntyre and Sessions in a fund of $900 in the hands of the defendant Drummer, trustee.
In the year 1890 one James II. House became a member of the “Maccabees” by joining “Lumber City Tent, Ho. 93.” Mary C. House was his wife. She died March 21, 1904, and he died May 2, 1905. His only surviving heirs and next of kin were his three nieces, the plaintiff and two defendants McIntyre and Sessions, and two nephews, Alphonso House and Linn Le Barron. The certificate of membership issued to deceased when he became a member of the association named his wife as the beneficiary. He remained a member in good standing until his death. In December, 1899, he having become wholly disabled and having surrendered his original certificate, the association issued to him a permanent total disability certificate for the amount of his original certificate, $2,000, naming his wife as beneficiary at his death for any amount not paid to him during his lifetime. Under this certificate the deceased received $1,100, and at his death there remained unpaid to- him the sum of $900.
Unless the plaintiff establishes an equitable right to the whole fund by reason of some things that occurred after the wife died, then the fund belongs to the plaintiff and the two defendants McIntyre and Sessions, each taking the one-third thereof. By agreement of the three parties the fund (voluntarily paid over by the association) has been placed in the hands of the defendant trustee to await-the result of this action.
The plaintiff claims an equitable designation or assignment was made which entitles her to the whole fund. Section 358 of the rules provides that any transfer of a certificate or any interest therein by assignment, will, or in any manner except as therein provided should be void. Section 359 provides that a member desiring to change the beneficiary in his certificate shall surrender the old certificate, making a written request in the form provided on the certificate that a new one be issued, naming such beneficiary, and deliver the certificate and request to the record keeper of his tent with a fee of fifty^ centsl Section 360 provides that the record keeper
The facts found by the court as to the designation of, a new beneficiary, or the transfer of' the certificate, and upon which the decision was based, were as follows :
Soon after the death of his wife deceased' agreed with plaintiff, orally, that the plaintiff should provide a home and care for-deceased while he should liv-e in plaintiff’s home, and that in consideration thereof, what should remain payable under this certificate,, with all his other' property' left by him at his death, should belong to and be-plaintiff’s property. From the time this agreement was made until his' death deceased was in ill-health, old and physically weak and disabled. Plaintiff fully performed the agreement on her part: After making this agreement, deceased’ mailed ‘his disability certificate to liis tent recorder, with a letter requesting that it he changed so as to make the plaintiff the beneficiary designated therein. He also saw the said recorder personally and requested that such, change he made, and the recorder, under the mistaken impression that the. plaintiff was his only niece, advised him that she would get the benefif any way, and. -that such change was not needed, and returned the certificate to the deceased. Deceased intended to designate the plaintiff as beneficiary, believed it wras done, and so informed plaintiff, but he never -made a written request in thje form jwovided on the back of bis certificate; never delivered the .certificate with sncli request inclosed' to the tent recorder, and never paid to him the fee of. fifty cents required by-the rules of the association.
These findings were supported by the evidence. .There- was some conflict between the parties and their witnesses, but we aye ■ not" inclined to disagree with the court as to the conclusions arrived at. It is evident that the agreement between plaintiff and-deceased was made; that plaintiff kept and performed it on her part; that deceased-intended her to be the sole, beneficiary; that he made^an effort .to bring it about in the manner provided by the rules of the association, and-failed, because of the mistaken advice of the = tent recorder; that lie' believed it wras so arranged that plaintiff would be his salé beneficiary, and told her so.
Hpon these facts the court decided as matter of .law that there was án equitable assignment of the fund - by 'deceased to plaintiff,
The main contention of the appellants' as to this conclusion of law is that the rules of the association, not having been complied with as to change of beneficiary or assignment of the certificate, the attempted transfer to the plaintiff was void and no rights-were acquired, thereby, in law or in equity. Our attention is called to several cases, mostly in the Court of Appeals, bearing upon the question here involved, which do not seem to be in harmony with each other, and which we need to analyze and consider carefully before arriving at a conclusion as to the rights of the parties in this fund. „
(Hellenberg v. Dist. No. 1, I. O. of B. B., 94 N. Y. 580.) This action was directly against the association. The certificate designated the mother as the beneficiary. She died before the member, and no other designation was made. The court held no one could recover the amount of the certificate because the association 'did not agree to pay any one except' the regularly designated beneficiary, and there was no such one; that the member had no interest in the. fund which would pass to his personal representatives or under his will. He had merely a power of appointment of a beneficiary and nothing more. For such a failure of common justice the rules and regulations of the association, and not the judgment of the court, were very likely responsible. We call attention to this case because it is cited in some of the subsequent cases.
(Luhrs v. Luhrs, 123 N. Y. 367.) The action' was apparently brought against the association; the defendant, another claimant, was substituted for the association, the money being paid into court. The member originally designated his wife as beneficiary. The rules provided the beneficiary might be changed by surrendering the old certificate to his lodge, paying fifty cents, and directing as to the new beneficiary. These were to be transmitted to the supreme lodge, and the new certificate was then to be issued. The member indorsed on his old certificate a direction to change the beneficiary so as to make his sister such beneficiary instead of his wife, and delivered same, with fifty cents, to his lodge, and they were sent to the supreme lodge, where the old certificate was cam
(Smith v. National Benefit Society, 123 N. Y. 85.) The action was against the association itself. The. member, after taking the insurance* procured the plaintiff, o's security for a debt, to be substituted as beneficiary, under the rules of the society.. Fraud was alleged in the inception of the insurance, and the, trial court found the member took it with the design to commit suicide, and, therefore, the contract of insurance was void and no recovery could be had' by the creditor. The courts, on appeal, affirmed the trial court. (S. C., 51 Hun, 575.). Bath appellate courts, in considering questions as to the admissibility of evidence, referred to and discussed Hellehberg v. Dist. No. 1, I. O. of B. B. (supra). The Court of. Appeals, in its opinion, said': “ The General Term questioned his' (plaintiff’s) right, considered as an assignment carrying a vested interest, and rely upon- section 18 of the Laws of 1883, under which the defendant company was organized. That, section attaches the beneficial interest to the membership, and permits the member to change the payee or beneficiary of the insurance without the latter’s consent. Where "the right of the payee has no other foundation than the bare intent of the member, revocable at any moment, there can be no vested interest in -the named beneficiary any more than in the legatee of a will before it takes effect. But the statute does not prevent a contract between the parties by force of which a vested interest does pass, in which respect the .present case differs from Hellenberg v. Dist. No. 1,
(Thomas v. Thomas, 131 N. Y. 205.) The action was against the association and another claimant. The original beneficiary was the daughter, the member being then unmarried. Later he married, and thep himself inserted his wife’s name on the certificate as a joint beneficiary with the daughter, without the knowledge of the association. The court held the wife had no interest in the fund, and awarded the whole to the daughter. The association took no part in the litigation, but held the fund as trustee to pay over to whichever claimant the court should decide was entitled to it. There was no consideration for the change of beneficiaries, and the court held it was not a case where eguity could interfere to remedy a defective execution of a power.
(Conselyea v. Supreme Council, 3 App. Div. 464 ; affd., without opinion, 157 N. Y. 719.) The action was directly against the asso. ciation. The wife was designated as beneficiary in the certificate. Subsequently trouble arose between the husband and wife and they separated. It was agreed between them that she should have the benefit of the certificate and that he would not change the beneficiary. He gave her the certificate, and she paid or Rendered all the assessments thereon until he died. About a year prior to his death he made an effort to deprive her of the benefit of the certificate and to terminate his membership, and from that time the association refused payment of the assessments, tendered by the wife. It was held that the membership continued till death; that the wife under the agreement of separation acguired the certificate upon her promise to pay future assessments, and that she thereby acguired a vested interest in the certificate which the husband could not deprive her of; that as she was the original beneficiary, she need not base, her rights upon the agreement of separation, but might hold as such original beneficiary, with the additional circumstance that she received it for value and made payments thereon.
(Sabin v. Phinney, 134 N. Y. 423.) The action was against the association and another claimant was a party defendant also. Cer
(Kimball v. Lester, 43 App. Div. 27; affd., without opinion, 167 N. Y. 570.) The action was against the association. The fund was paid in court and the other claimant made defendant. The member designated his wife the beneficiary in the certificate. There was a judgment against the husband. The defendant agreed to pay this judgment,-and in consideration of such agreement the husband and wife both assigned their interests in the certificate to the defendant as collateral security for the repayment' to him- of the amount of the judgment.' 'Defendant paid the judgment. The husband died. The wife claimed the whole fund. The court sustained the claim of the defendant to the part of the fund claimed by him, folding that the, association waived the claim that the defendant was not a person to whom the' certificate co.uld be assigned who could be made, a beneficiary, and that the assignment was not made as required by the rules of the association; that thé wife could not avail herself of such non-compliance with the rules, and that the wife was estopped to allege the invalidity of the assignment. >
(Webster v. Welch, 57 App. Div. 558.) The action was against the. association; another claimant was brought- in. The litigation was between the two claimants. The association did not 'answer. The claimants were sisters. The member was their father; He had two certificates, in both óf which the mother vvas
(Fink v. Fink, 171 N. Y. 616.) The action was against the association and another claimant was a party defendant. The mother of the member was designated as beneficiary in the original certificate. The certificate was delivered to her, and she retained it till his death. Six months before his death the member married, and soon after procured the association to issue another certificate, designating his wife as beneficiary, and he delivered that certificate to the
(Coulson v. Flynn, 181 N. Y. 62.) Two actions were brought against the association by conflicting claimants. The amount claimed' was .paid into- court, one of the actions was discontinued, and the claimants litigated between themselves in the other action the .right to the fund. ■ The original certificate designated defendant Flynn as the beneficiary. The plaintiffs, sisters of the member, claimed Flynn was not entitled to be made a beneficiary under the rules of the association and his designation was void and they were, therefore, beneficiaries under such rules. It was held by the Court of Appeals that the - association might waive the provisions of its rules and permit a beneficiary to be ■ designated' contrary to their provisions, and did só in this case, and the plaintiffs could not take' advantage of the failure to comply with the rules'in such designation, nor could the association itself take advantage thereof, it having issued the certificate with full knowledge of the facts.
It will be seen by examining these cases- that while as a general rule the chahge of beneficiaries must be made as provided -by the rules' of the'association, yét where the association has paid the money into court' and lias no interest in the litigation which is between the claimants alone, and where there is a consideration for the- change of beneficiaries, and a party has acquired a vested ■interest in the fund, equity will aid the party having such interest and will regard as done ivliat ought to be done. Where the designation: is voluntary, a mere gift, the courts enforce quite strictly a
All concurred.
Judgment affirmed, with costs.