#### Emma L. Bogart, Plaintiff, *v.*Christian C. E. Thompson, as Administrator, etc., of Eliza Jane Thompson, Deceased, Defendant.

(Supreme Court, New York Special Term,

September, 1898.)

Benevolent associations — Incorrect description of beneficiary — Intention of insurer. '

An emigrant, who had a wife living in Ireland, became engaged in the United States to Emma L. Bogart who believed his statement that he was unmarried and he thereafter procured a certificate of membership in a benevolent association, which was made payable to “ bis wife, Mrs. Emma L. Thompson.” He delivered this certificate to Emma • L. Bogart who, after retaining it for two weeks, handed it to him for safe-keeping and it was in his possession when he died. The'by-laws of the association did not in any manner restrict the designation of a beneficiary and permitted changes in that respect.

Held, that the intention of the deceased must govern and that Emma L. Bogart, although never married to him, was entitled to the proceeds of the policy as against the representatives of his lawful wife, since deceased.

Action against a benevolent association to determine the right to a beneficiary fund.

Clemens J. Kracht, for plaintiff.

Noble *&*Villard, for defendant.

Laughlin, J.

This action is brought to determine the right to a beneficiary fund of $1,000 in the Chapter General of America, Knights of St. John and Malta, payable on the death of John Cary Thompson, who was a member of said association. The beneficiary organization does not contest its liability, and has paid the money into court to await the determination of the conflicting claims of the plaintiff and defendant to said fund. The member, John Cary Thompson, died February 22, 1897. He legally married the defendant’s intestate in Ireland in 1879, and lived *582with her several years, and they had five children, the issue of said marriage, all of whom, together with his wife, survived him. Many years before his death he abandoned his wife and came to this country, she. continuing to reside in Ireland, and they never thereafter met or lived together. After coming to America, Thompson courted and became engaged to the plaintiff, and although she learned of his having lived with the defendant’s intestate, by whom he had children in Ireland, he assured her, and she believed, that he was never married. Thompson informed the plaintiff, after their engagement, of his intention to join said association and to have a beneficiary certificate issued for her benefit, and he thereafter applied for membership in said association and designated as his beneficiary *“*Emma L. Thompson,” his “ wife,” meaning thereby the plaintiff. The beneficiary certificate issued by said association was payable to “ his wife, Mrs. Emma L. Thompson.” Immediately after obtaining the certificate he gave the same to the plaintiff and explained to her that he designated her by. his name and as his wife to save the, trouble and expense of changing the certificate after their marriage. She retained the certificate about two weeks and then returned it to him for safe-keepr ing, and it was in his possession at the time of his death. Shortly before the postponed date of their wedding Thompson died, and on the 27th day of April thereafter, his wife Eliza Jane Thompson died. The defendant contends that the designation *“*wife ” indicates Thompson’s intention to designate his lawful wife, Eliza Jane Thompson. In view, however, of the difference in names: and of his engagement to many the plaintiff and of the delivery of the certificate to her, it is manifest that by such designation he inteñdéd to name the plaintiff and not his lawful wife, Eliza' Jane Thompson. The. duty of the court is to ascertain the intention' of the member of the beneficiary order and to give that intention effect provided it does not contravene public policy or any statute. If it were necessary that the plaintiff should have an insurable interest in the decedent, they having exchanged mutual promises to many, if he had been competent to marry as she then believed, she would have had an insurable interest in his life. Crisholm v. National C. Life Ins. Co., 52 Mo. 213; Bacon on Ben. Soc. & Life Ins., § 250.

It was not necessary, however, that the plaintiff should have an insurable interest in Thompson’s life. If he had first definitely designated his lawful wife, she would have obtained no vested in*583terest in the certificate, for the constitution and by-laws of the association which constituted his contract with it, permitted him to change sudh designation, and he could have thereafter lawfully designated a perfect stranger, who cotdd have successfully maintained an action for the fund. Sabin v. Grand Lodge A. O. U. W., 8 N. Y. Supp. 185; 134 N. Y. 423; Massey v. Mutual Relief Society, 102 id. 523.

There being no provision of the constitution or by-laws or of the statutory law under which the association was incorporated, restricting members to a designation of relatives as beneficiaries, the representation in his application and in the certificate that the plaintiff was his wife, not only did not constitute a fraud, but it was not material to the contract, either in fact or in contemplation of the beneficiary order, and the association could not, were it so disposed, avoid payment to the individual intended as his beneficiary by the designation made by him. Durian v. Central Verein of Hermann’s Soehnne, 7 Daly, 168; Vivar v. Knights of Pythias, 52 N. J. L. 456; Story v. Williamsburg M. M. B. Assn., 95 N. Y. 474; Watson v. Cont. Mut. Life Assn., 21 Fed. Repr. 698; Weston v. Richardson, 47 L. T. R. (N. S.) 514.

It follows that the plaintiff- is entitled to the beneficiary fund and judgment is ordered accordingly.

Judgment accordingly.