#### Joseph Talbot, Respondent, *v.*The Tipperary Men National, Social & Benevolent Association, Appellant.

(Supreme Court, Kings Special Term,

May, 1898.)

1. Benefit associations — Amendment of constitution.

Where the constitution of a benefit membership corporation provides that it may -be amended at a quarterly meeting by a two-thirds vote of the members present, and upon two weeks’ previous notice in writing given/at a meeting, a member is not entitled to a personal notice of the' proposed amendment and is bound by an amendment which has been passed in the manner prescribed by the constitution.

2. Same — A provision reserving to the association the right to expend, a wife’s burial benefit.

Where such aj constitution, as -amended,, provides that on the death of ia wife of a member ” there should be paid towards her burial expenses a sum fixed, the association reserving, however, the right to expend the money itself, or, in the alternativehand it over for that purpose to /the, next of kindred,” it cannot, where it, has not been-informed of the death of the wife until after her funeral, be held liable for the stipulated, payment, as it has been afforded no opportunity to exercise its option of expending the money by its own'hands.

3. Same — Death of a second wife.

Under such phraseology, the fact that the member has received a burial payment upon the death of his first wife does not preclude him from claiming ja similar payment upon the death of his second wife.

4. Same — Husband as *“*next of kindred.”

While a husband is not technically “ next of kin ” to his wife,- he is sufficiently of her “ next of kindred *’r*to- be ¡entitled to become the recipient from the association of a burial payment upon her death.

Appeal from a judgment in favor -of plaintiff, rendered in the Justice’s Court of the Borough >of Brooklyn.

Alfred Steckler, for appellant.

John P. Donnelly, for respondent.

Johnson, J.

This case comes before this court on an appeal from a judgment in favor of the plaintiff for $75 and costs entered in the Justice’s Court of the Borough of Brooklyn.

*487The defendant is a corporation, organized for social purposes and purposes of mutual benevolence: I assume it is of the character known as a membership corporation. The plaintiff became a member in 1893. At that time the association had a constitution which provided for certain benefits or payments in case of death, among others, a payment of $7 5 towards defraying, the expenses of burial of a member, or- of the death of the wife of ¡one of the members. Some time after the plaintiff became a member, it is claimed, this constitution was amended so as to modify the provision, in relation to the death of the wife of a member.

The first question in the case is, which constitution isi now in force, the earlier or the amended one? The .original constitution provided for amendments at a quarterly meeting of the association, by a two-thirds vote of all the members present, and on at least two weeks’ previous notices in writing, given at a meeting of the association. Officers of the association were called, who testified that the constitution had been amended some years before the death of the plaintiff’s wife. . The plaintiff, however, objected to the admission of the amended constitution; his objection seeming to be that he had no notice of the proposed amendment.

' I hold it is very clear that it was not necessary that personal notice should be given; the scheme for amendment only requiring a notice given in a quarterly meeting of the association. Hence, I hold that the case is to be determined under the amended constitution.

The provision contained in the amended constitution for a benefit in case of the death of a wife'is as follows:

“ Section 1. On the death of any member not disqualified by the Constitution and By-Laws the.sum one hundred dollars shall be paid toward his burial expenses, the association reserving the right to expend the money themselves towards the burial of "its members, or hand' it over for that purpose to the next of kindred.

“ Section 2. On the death of a wife of a member not disqualified by the Constitution and By-Laws, the sum of fifty dollars shall be paid, and the association’s right reserved as- in the preceding section."

*“*Section 3. Eo member shall be entitled to either of the benefits specified in the preceding sections until he shall be six months a member and continuously in good standing. Hor shall he be entitled to receive any burial benefit for his wife, until six months have elapsed from date of marriage, if single when becoming a member.”

*488It is conceded that the association had no notice of the death of the plaintiff’s wife until after her funeral and some two weeks after her' death; The association had .expressly reserved the right *to expend the money themselves, toioard the burial of. a deceased member or the wife of a deceased member.*As they had no knowledge of the death of the first.wife until after the funeral, and consequently had no opportunity to exercise that option, the question is: — Can they now he held for the seventy-five dollars? It should he noticed that this is a social and benevolent association, the. purpose obviously being to bring together for better acquaintance and mutual aid’ men of common descent and common pride or love of. ancestry. It was ¡not an insurance company originally or principally; and the benefit comes not as an *“*insurance,” but rather as a means whereby the kindly and benevolent offices of the society would follow their deceased members and their wives to their final resting place. Hence, the reservation of this right, for the association itself to expend the money, was a matter of substance, comporting with the character and purposes of the association.

So construing that provision,, it follows that the plaintiff has no right to recover, and the judgment must be reversed.

I deem it fair,. however, to consider the other objections and •questions which have been presented. It is shown that in the early years of the plaintiff’s membership his wife died, and the association paid him the regular benefit, and that the wife on account of whose death he now claims'was a second wife. The point is made, that having paid a benefit for the death of the first wife, there is no obligation to pay on account of the death of a second wife. I do not think that ■ objection is good. There is no reason why a member in good standing should not have the benefit on the death of a second wife as much as on the death of the1 first'.

The provision is that' .the payments shall be made to the “ *next ■of hindred,”*and it is urged that tire husband is not the next of kindred to the wife. The counsel for the association cites a large number of 'authorities clearly establishing that the husband and wife are not *“*next of kin ” to each other. But the phrase *“*next of kin ” is a phrase of legal definition, which is used and applied to indicate a particular class of relatives. In other words, it is a technical term, not ordinarily used in common speech. Hence, • whenever it is used; it is to be-presumed that it is used in its' technical' meaning. Blit the term *“*next of kindred ” is quite different;' it is not a technical term, used as a legal definition. Hence I think *489the cases cited by counsel for the appellant do not apply. The question then is, what is the meaning of *“*next of kindred *”*as used here? We must consider it in connection with the purposes of the provision. As has been'stated, the association was formed for purposes mutually helpful, and these death benefits were given rather as a benevolence and as a continuation of the help given in case of need during life. In case of the death of the husband, the wife, and in case of the death of the wife, the husband, has the first right to administer. In common speech and common understanding, the widow is next to the deceased husband, and the widower is next to the deceased wife..

Hence I think that it would be a harmful mistake to consider that the husband or wife, as the case may be, is not the party entitled to draw this benefit in a proper, case.

Judgment reversed, new trial ordered.