#### Karl Kult, Plaintiff, *v.*Henry Nelson, Defendant.

(Supreme Court, New York Special Term,

June, 1898.)

Benefit societies Certificate issued to one not in the list of the persons to whom a certificate might be issued — Assignment.

After a benefit society, whose laws provided that no endowment certificate should be made payable to or be transferable by any other person than the husband, child, dependent, mother, father, sister, brother, aunt, uncle, niece, or nephew bf the member, had issued a certificate to á woman in favor of her son Karl Kult, she commenced to live with one Nelson as his wife, although she at all times had a legal husband living. She also surrendered her original certificate and procured a new one, payable to' Nelson as her husband. Her legal husband, after her death, assigned his rights, under the second certificate to Nelson. Held, that Karl Kult was entitled to the moneys, as Nelson was not in the list of persons to whom a certificate could be made payable or to whom it could be transferred, and that Nelson took nothing under the assignment from the legal husband.

Action between claimants to determine right to a fund paid into court by a benefit society. '

John Bogart, for plaintiff.

M. Owen Roberts, for defendant.

Daly, J.

The plaintiff’s mother, Wilhelmina Kult, became a member of the fraternal society, Ladies of the Maccabees, and on *21Juñe 5, 1894, received an endowment certificate entitling her son, this plaintiff, to $1,000 upon her death. The laws of the society provide that such certificate shall not be made payable to any other person than the husband, child, dependent, mother, father, sister, brother, aunt, uncle, niece or nephew of the member, and that no certificate can be transferred to any person other than those enumerated. . In case a. member desires a change of beneficiary a new cer- . tificate may be issued by the society upon the written request of the member and surrender of the outstanding certificate. After the receipt of the certificate above mentioned, Mrs. Kult commenced to live with the defendant Nelson as his wife, and afterwards surrendered her certificate to the society, and applied for a new one payable to him as her husband, and such a certificate was issued to her on August 17, 1896. ' She died on March 23, 1897, and the society having been sued by the infant plaintiff to recover the sum named in the original certificate, interpleaded this defendant Nelson, who made a claim to the same fund by virtue of the subsequent certificate, . and it paid the $1,000 into court. It appears that Mrs. Eult was not married to Nelson, she having a husband living in Germany during the whole period covered by the transactions which are the subject of this action, and who survived her. This husband has made an assignment to the defendant Nelson of his rights under the second certificate, and the'defendant bases some claim upon that assignment. The right of the infant plaintiff to recover the fund in court seems quite plain. No opposition to his claim is made except by Nelson under and by virtue of the second certificate, and that certificate is wholly unauthorized and ineffectual, being made to a beneficiary not included in the list of persons to whom certificates can be made payable or be transferred by the officers of the society. Nor can the assignment of the void certificate by the husband in Germany confer any rights. Such a form of assignment transfers no marital right so as to qualify Nelson to be a beneficiary; nor can it have effect under the laws of the order, which provide that “in the event of the death of the beneficiary named in the certificate of membership, before the death of the member, if no other designation be made, the claim will first be paid to the husband, if living,” because the contingency upon which this provision is limited has not occurred. No question can arise in this case growing out of the surrender of the original certificate. The society, which alone could defend upon any such ground,, concedes that $1,000 is payable on the membership of Mrs. Eult and deposits the money in court, to be awarded to the *22plaintiff or the defendant as the rightful owner. As the defendant has no right to it whatever, the plaintiff might have judgment on that ground; but his right as against the company is. clear. The surrender of the original certificate being dependent upon a valid transfer of interest in the benefit secured by it, no surrender was accomplished by the attempted invalid transfer in favor of defendant. I say that the surrender was dependent upon a valid transfer being effected and not otherwise, for it is not conceivable, that the deceased would have surrendered the right to have the money go to her son if she had known that the transfer was invalid nor that the company intended a surrender in ignorance of the facts concerning her marriage to Martin Knit. As to the facts, of the marriage to the latter and that it had never been dissolved, I entertain no doubt whatever, nor do Tthink that they can be seriously questioned upon the evidence. ' Judgment for plaintiff, with costs.

Judgment for plaintiff, with costs.