#### Joanna Spry, Guardian, Appellant, v. Hugh Williams, Guardian, Appellee.

Benefit Soeioty: certificate: beneficiary: subsequent birth of children : equity. A widower obtained a benefit certificate in the Ancient Order of ¡United Workmen, wherein his three children were designated by name as the beneficiaries. Subsequently, he remarried, and after his death a child was born as the fruit of such marriage. *Held,*that said certificate was not at variance with a by-law of said society, providing that its object should be “ to afford financial aid and benefit to the widows, orphans and heirs or devisees of deceased membersand the jurisdiction of a court of equity could not be invoked to extend the provisions of the contract, represented by the certificate, beyond its terms, so as to include a child subsequently born.

*Appeal from Warren District Court.*— Hon. J. H. Hendebson, Judge.

Friday, January 30, 1891.

Tiie petition shows that John F. Meyer, in 1885, became a member of the Ancient Order of United Workmen and received a certificate therefrom, by the terms of which his beneficiaries, named therein, were to receive a certain amount at his death. The designation of beneficiaries is as follows: “ Do promise and agree to pay Ulysses S., William J. and Etta Meyer, his children, or the legal representative of the said John F. Meyer, after due notice,” etc. At the *62time of obtaining the certificate, JoTin F. Meyer bad no wife, and no other children than those named. John F. Meyer died in 1886, after having again married. After his death, as the fruits of his second marriage, Jessie Fay Meyer was born. The plaintiff is the guardian of Jessie Fay Meyer, and the defendant that of the children named in the certificate. Thé society, in full discharge of its obligation in the certificate, paid to defendant the sum of seventeen hundred and two dollars and sixty-five cents. This action is to require the defendant to pay to the plaintiff, for the use of Jessie Fay Meyer, one-fourth of the avails of the certificate. There was a demurrer to the petition on the ground that on its face it showed that the wards of the defendant were the only persons entitled to receive the money. The district court sustained the' demurrer, and gave judgment thereon, from which the plaintiff *appealed.*

Affirmed.

' *Morgan*J; *Moans,*for appellant.

*Williams Powell,*for appellee.

Grangheb, J.

The point first made in argument, and probably chiefly relied upon, is that, where there is a “variance” between the laws of the society and the certificate, the former must govern. The correctness of this proposition we need not discuss. We may more profitably inquire if there is such a variance. We should keep in view in our reasoning .that the merit of appellant’s contention is that, as a result of sustaining the demurrer by the district court, Jessie Fay - Meyer is denied an interest in her father’s estate, as, barring the certificate in question, he left no estate, and much stress is placed on the equitable thought involved.

The articles of incorporation of the society provide: *“Second.*The business and object for which said society is formed is to provide, secure and give financial aid to the widows, children, heirs-at-law and legatees of deceased members thereof, in accordance with *63the rules, regulations and by-laws of said society.” A provision of the by-laws is as follows: “The business and object of this society shall be to afford financial aid and benefit to the widows, orphans and heirs or devisees of deceased members.” It has been often held, and the rule is not disputed in this case, that a member of such a society may receive a certificate designed only for the benefit of one of such classes, to the exclusion of the others, as for the widow, omitting the children, or for the children, omitting the widow, or for one of several children, omitting the others. It is a fact, then, that the member receiving the certificate may determine who of the classes designated by the law as beneficiaries shall be the beneficiary in his particular case, and the fact that he .thereby does injustice to others will not defeat his purpose. The equitable thought then is available only in cases of doubtful interpretation, when it should have liberal influence, presuming the party in making such provisions designed to act justly.

At the time the certificate was taken, John F. Meyer had but the three children named in the certificate, and was then unmarried. At that time his children named were the only ones dependent upon him, and it could not well be said that he did not then conform by his certificate with the full spirit of the law. Had John F. Meyer died before his marriage with the mother of Jessie Fay Meyer, no question could well have arisen as to the proper beneficiaries, or as to In’s intent. The transaction giving rise to such a certificate is a c ontract between the member receiving the certificate, and the society. *Felix v. A. O. U. W.,*31 Kan. 81; 1 Pac. Hep. 281. The contract at its inception fixes the obligation of the society for payment, the amount to be paid by the member for the benefit, and who is or are to be the beneficiaries. As a part of the contract, the society was under obligations to pay only the beneficiaries named in the certificate. The contract provided for changing the beneficiaries, but only at the instance of John F. Meyer, and then by a return of the certificate and receiving a *64new one, with, the new beneficiary named therein. By-Laws of Society, art. 8, sec. 2. Now, if we are to bold tbat, because of tbe birth of Jessie Pay Meyer after tbe certificate issued, and after tbe death of ber father, she is a beneficiary, tbe effect of tbe bolding is to permit tbe law to make a contract never intended by tbe parties. At tbe time of John P. Meyer’s death, tbe obligation of tbe society became fixed, and Jessie Pay was then unborn, and it could not then be said tbat she was a beneficiary in tbe certificate. If tbe certificate bad then been paid, could Jessie Pay, after ber birth, have bad a right of action for any part of tbe proceeds? Certainly not.

It is said that it could not have been tbe intention of Meyer to have made provision for a part of bis children only. Without admitting tbe fact, it may be said tbat be did not make such a provision. He made provision for all he then bad, and it is tbe intent of tbat time tbat is to govern. There is no support for tbe claim that there is a variance between tbe laws of tbe society and tbe certificate. The certificate provides tbat tbe benefit shall be paid to “ Ulysses S., William J. and Etta Meyer, bis children, or tbe legal representative of tpe said John F. Meyer.” No claim is made tbat tbe payment should have been made to tbe legal representative. Tbe words “bis children” refer to those named, and cannot properly be construed to mean or embrace others yet unborn. On so plain a proposition there should be no dispute, nor can equitable considerations overrule an intent so manifest and legal. After bis mari’iage with tbe mother of Jessie Pay Meyer, be bad tbe opportunity to so change bis certificate as to extend its benefits to bis widow and unborn child, which be did not do. And it is equally as unreasonable and inequitable to omit from its benefits bis widow as her child. He knew tbe situation, and we should assume tbat be bad reasons for not making tbe change. Tbe record does not disclose what property rights tbe widow possessed. They may be abundant for ber and lier child, who would inherit from *65her, while his children by a former marriage wonld not. If the court should attempt, on the face of this record, to make the conduct of Meyer more equitable by creating a new beneficiary, it might defeat that which is absolutely just.

It is to some extent urged to us in argument, and our consideration of the case has led us to consider the analogy of the law as applicable to this case, and that governing the validity of wills, as the same rules of law often apply in determining the rights of parties under wills and beneficiary certificates. Appellant, in argument, quotes the following section of the Code: “ Sec. 2334. Posthumous children unprovided for by the father’s will shall inherit the same interest as though no will had been made.” In *Alden v.*Johnson, 63 Iowa, 124, and cases there cited, this court held that the birth of a child to a testator subsequent to the making of the will, and before the death of the testator, wonld operate as an implied revocation of the will. Such rule is without application to the facts of this case. The purpose of this case is to extesnd the provisions of the certificate or contract beyond its terms, and include another as beneficiary. The law has never extended the provisions of a will to include one not specified as a legatee therein; but, following the rules of the civil law as to presumptions, it revokes the will, and places the property of the estate under the direction of the law as to distribution. In such a case the revocation of the will takes effect before the death of the testator on the birth of the child. If we apply the rule to this case, the birth of the child, after the certificate issued, would operate to revoke it, — a result that no one would contend for. The proceeds of such a certificate are not a. part of the estate but go directly to the beneficiary, except where payable to the estate. Bac. Ben. Soc., sec. 396; *Felix v. A. O. U. W.,*31 Kan. 81. Appellant has cited a number of authorities wherein courts have construed certain expressions, in certificates and wills, as that a bequest to the_children ofa testator means all his *66children, though by different wives, and in some instances the term “ children ” has been held to include grandchildren; but there is no case that we have seen where it is held that a bequest or certificate in favor of children, naming them, is to be enlarged by construction; which is really what is asked in tl case.

The judgment of the district court is affirmed.