#### Fannie Mendelson, Appellant, *v.*Ella R. Gausman, Respondent.

Second Department,

May 23, 1913.

Insurance — Royal Arcanum — designation of beneficiary — designation of woman as affianced wife by married member — interpleader — designation void as against public policy — evidence — promise of marriage — loan.

As the by-laws of the Royal Arcanum divide beneficiaries into two classes, the first including the wife and family of a member, and the second including an affianced wife, or any person dependent upon the member for maintenance, and as section 330 of the by-laws provides in substance that if the dependency of a beneficiary of the second class shall have ceased or the designation shall fail for illegality or otherwise the benefit shall be payable to a person in the first class, the widow of a member may contest the right of a woman designated by him as his affianced wife to the moneys payable upon the member’s death.

Hence, where the person designated as the member’s affianced wife brings an action to recover the benefit, his lawful wife may interplead as a party defendant and contest the plaintiff’s right to the benefit.

A man legally married cannot designate a woman other than his wife as his “affianced wife,” that being opposed to public policy, where the person designated is not living with and dependent upon him so as to have an insurable interest.

In the circumstances, the person designated by a married man as his affianced wife, when suing for the benefit, is not entitled to prove conversations tending to show a promise of marriage by the member or moneys loaned to him.

Appeal by the plaintiff, Fannie Mendelson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of November, 1912; upon the decision of the court rendered after a trial at the Kings County Special Term.

*Charles Burstein,*for the appellant.

*Felix Reifschneider, Jr.,*for the respondent.

Putnam, J.:

This is an appeal from a judgment directed by the court at Special Term in favor of defendant in an interpleader suit *371between claimants of a death benefit payable by the Royal Arcanum on the death of Arthur Gausman.

When, in 1904, Arthur Gausman joined the Royal Arcanum, he took out a certificate naming as beneficiary his father, Alphonso Gausman, and not his wife, the defendant. After his father’s death his certificate was surrendered, and in 1910 a new certificate was issued in which he named as beneficiary the plaintiff, Fannie Mendelson, whom he described as his “ affianced wife.” At this time defendant was still his wife, and on his death became his widow.

The by-laws of the Arcanum (§ 324) provide for beneficiaries of two different general classes — Class first includes the family, subdivided into thirteen grades, of which grade first is the *“*Member’s wife.” Class second (evidently intended for those outside the family, who may be deemed to have an insurable interest) is *“*To an affianced wife, or to any person- who is dependent upon the member for maintenance (food, clothing, lodging or education); in either of which cases written evidence of affianced relation or dependency, within the requirements of the Laws of the Order, must be furnished to the satisfaction of the Supreme Secretary before the Benefit Certificate can be issued. (2) Neither the decision of the Supreme Secretary, nor the issuance of a Benefit Certificate, shall be conclusive as to the fact of the affianced relation or dependency.”

It had formerly been much mooted whether the benefit lapsed if the beneficiary named proved to be ineligible. If the member died without having exercised his right of direction, or if the direction was one that he had no authority to make, it was held that the power of appointment was not exercised, and, therefore, nothing could be paid and the benefit failed. *(Hellenberg*v. *Dist. No. One of I. O. of B. B.,*94 N. Y. 580 [1884]. See *Britton*v. *Boyal Arcanum,*46 N. J. Eq. 102 [1889].)

The present by-laws have met this situation by section 330: *“*If at the time of the death of a member, who has designated as beneficiary a person of Class Second, the dependency required by the Laws of the Order shall have ceased, or shall be found not to have existed, or if the designated beneficiary is his wife, and they shall be divorced upon the application of either party, *or if any designation shall fail for illegality or*
      *372
      *otherwise,*then the benefit shall be payable to the person or persons mentioned in Class First, Sec. No. 324, if living, in the shares and order of precedence by grades as therein enumerated.”

Reading these provisions together, it is plain that it was not only the intent to give a reversion to the widow, but to recognize the consequent right by her to question the legality of any attempted designation. This right was not impaired, but was effectuated by the interpleader. *(Palmer*v. *Welch,*132 Ill. 141; *Alexander*v. *Parker,*144 id. 355; both Arcanum cases.)

The effect of. this by-law was clearly pointed out in *Taylor*v. *Hair*(112 Fed. Rep. 913), where an attempt was made by the brothers of deceased to reach a benefit payable to a designated fiancée who was herself a married woman. The court recognized that the brothers were within the second class of beneficiaries described by the constitution of the order. The distinction in the by-laws, however, was emphasized. The court said: “There is no provision by which persons in this class can take when the beneficiary named is not eligible, while in the cases decided in the Supreme Court of Illinois [Arcanum cases], as has been seen, there is express provision by which the brothers of the deceased member are entitled to take when the beneficiary named is not dependent, and consequently not eligible, at the time of such death ” (p. 916).

It seems only just, therefore, that the widow should have and' exercise her right to show the invalidity of the designation and enforce the superior rights of the lawful wife to whom the benefit is to revert. (See *Supreme Lodge Order of Mutual Protection*v. *Dewey,*142 Mich. 666; *Spear*v. *Boston Police Relief Assoc.,*195 Mass. 351.)

The by-law in its present form makes the designation of the “ affianced wife ” a distinct one, and outside of those financially dependent upon the deceased. Can a married man so name a woman not his wife ? 'Such a designation is clearly illegal, as opposed to public policy. *(Keener*v. *Grand Lodge A. O. U. W.,*38 Mo. App. 543; *Alexander*v. *Parker,*supra; *Di Messiah*v. *Gern,*10 Misc. Rep. 30; *Kult*v. *Nelson,*24 id. 20; *Miller*v. *Prelle,*122 Ill. App. 380.)

This conclusion is not contrary to the decisions in favor of beneficiaries described as wives, notwithstanding that the deceased *373had a lawful wife living. In such cases, the beneficiaries who had lived with deceased, and become dependent on him within the spirit of the contract, had an insurable interest. *(Story*v. *Williamsburgh M. M. B. Assn.,*95 N. Y. 474; *Durian*v. *Central Verein of the Hermann’s Soehnne,*7 Daly, 168; *Richards*v. *King,*57 Misc. Rep. 177.) But the doctrine of these cases is not to be extended. (Niblack, Law of Voluntary Societies, 347.)

To avoid the question of estoppel, the by-law provides, as quoted above, that the action of the secretary in granting the certificate shall not be conclusive as to the fact of the affianced relation or dependency.

This result is not repugnant to the line of decisions holding that the fraternal order alone can raise the point of ineligibility. Such seems to be the general rule where the parties to the contract are only the society and the designated beneficiary.

When read with the by-laws, this certificate shows no case of *ultra vires,*but instead a conditional designation of the wife as the legal beneficiary, and her rights could not be .waived or impaired by the officials of the Boyal Arcanum.

As the plaintiff could not be lawfully regarded as the “affianced wife *”*of the deceased, and appears to have known the true situation when the designation was made in 1910, testi- ' mony of conversations tending to show a promise of marriage or a betrothal with a married man, or of moneys loaned to deceased, was incompetent under the pleadings and, therefore, properly rejected.

The designation of the plaintiff, being illegal and void, was lightly treated by the learned justice at Special Term (78 Mise. Bep. 457) as a failure to designate, which, under the by-law, gives the widow a right to receive the money.

I advise that the judgment be affirmed, with costs.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment affirmed, with costs.