#### Malancy, Appellant, vs. Malancy, Respondent.

*May 15*

June *12, 1917.*

*Life insurance: Benefit societies: Change of beneficiary: By-laws and statute are part of certificate: Bights of beneficiary under a contract.*

1. The beneficiary named in a certificate issued to a member of a fraternal benefit society does not acquire absolute and indefeasible rights until the death of the member.

2. A by-law of such a society, providing that any agreement entered into by a member not to change the beneficiary shall be null and void, and the statute (sub. 5, sec. 1957, Stats.) providing that he may change the beneficiary named without the consent of such beneficiary, become part of the terms and conditions of the certificate.

3. The fact that a change of the beneficiary in such a certificate was made by the member for a valuable consideration paid to him did not give the second beneficiary any legal or equitable right to the proceeds of the certificate as against the person in whose favor another change was afterwards made by the member in accordance with the by-laws of the society.

Appeal from a judgment of tbe circuit court for Lincoln county: A. II. Reid, Circuit Judge.

*Affirmed.*

This is an action by *Louise Malancy*to recover a fund of $1,000 from tbe Modern Woodmen of America, a fraternal benefit society, wbicb was originally a party to tbe suit, upon tbe membership of William Malancy, ber husband, in tbe society. *Tressie*Malancy, mother of William Malancy, also makes claim to tbe fund. Tbe Modern Woodmen of America paid tbe fund into tbe court to abide tbe result of this action. Tbe action was dismissed as to tbe society and proceeded as to tbe other parties.

William Malancy became a member of tbe Modern Woodmen of America in July, 1906, and it issued to him a benefit certificate for $1,000, in wbicb tbe defendant, *Tressie Ma-*lancy, was made beneficiary.

Prior to February 9, 1911, William Malancy, ill with tu*643berculosis, contemplated entering tbe Modern Woodmen sanitarium in Colorado for treatment. His friends donated a fund to pay bis expenses, but refused to deliver tbe fund until be made bis benefit certificate payable to bis wife. He made application for change of beneficiary and a certificate was issued in wbicb bis wife was named as sole beneficiary. Tbe by-laws of tbe society provide that in order to change a beneficiary in a certificate tbe member shall deliver tbe certificate in writing to tbe camp clerk, and that in case tbe certificate cannot be returned then that tbe member execute a waiver of benefit in lieu of such surrender of tbe certificate. Tbe bylaws also provide that any agreement entered into by a member not to change bis beneficiary shall be null and void. In this case tbe original certificate was not surrendered to’ tbe camp clerk because tbe defendant, *Tressie Malancy,*refused to deliver it up. No waiver of benefit under tbe original certificate was made or filed with tbe society, but, without insisting upon this, tbe society issued a second certificate, in wbicb tbe plaintiff was named as sole beneficiary.

In October, 1914, without tbe knowledge of tbe plaintiff, William Malancy made application to change tbe beneficiary, this time naming *Louise Malancy*as beneficiary of $500 and *Tressie Malancy*as beneficiary of $500. . He filed a waiver of claims under tbe second certificate, and tbe society issued a third certificate in accordance with tbe application.

In May, 1915, William Malancy executed a surrender of tbe third certificate and made application for (one payable solely to *Tressie Malancy*as beneficiary.

William Malancy died on August 30, 1915, due proof and notice of bis death being given to tbe society by *Tressie ■ Ma-lancy.*

Tbe court found that *Louise Malancy*bad no cause of action, that *Tressie Malancy*should recover tbe fund of $1,000, but that she could not recover costs from either tbe Modern Woodmen of America or from tbe plaintiff.

*644The plaintiff claims the fund under the second certificate, upon the ground that William Malancy had agreed to make his wife the sole beneficiary of the fund in consideration, of the expense fund advanced to him by his friends.

The plaintiff asks that the judgment of the circuit court be reversed and judgment ordered in favor of the plaintiff.

Eor the appellant there were briefs by *O. M. Sheldon,*attorney, and *B. T.*Beinholdt, of counsel, both of Tomahawk, and oral argument by *Mr. Beinholdt.*

For the respondent there was a brief by P. *T. Slone*of Wausau and *J. & M. Van Heche*of Merrill, and oral argument by *John Van Heche.*

Siebecker, J.

There is no dispute concerning the issuing of the certificates upon the decedent’s application to the society, that they became effective under its regulations, and that the proceeds thereof were properly paid into the court. The question presented is: Has the plaintiff any claim to the proceeds under the second certificate issued to the deceased in which she was named the sole beneficiary? It is contended that she acquired a special vested interest in this certificate for a valuable consideration and hence a right to the proceeds thereof, of which she cannot be deprived without her consent as against the defendant who is named the sole beneficiary in the certificate last issued to deceased. The friends of the plaintiff’s husband who raised the fund to defray his expenses to send him to Colorado refused to give him the fund until he caused his wife to be made the sole beneficiary of this fraternal insurance. Sub. 5, sec. 1957, Stats., provides, “Any member” of a fraternal benefit society,’ order, or association “may change the beneficiary named in his certificate or policy without the consent of such beneficiary, by complying with the by-laws of the society, order or association.” The by-laws of the society provide that any agreement entered into by a member not to change the beneficiary shall be *645null and void. The provisions of such by-laws and the statutes become part of the terms and conditions of a benefit certificate of fraternal societies. *Ormond v.*McKinley, 163 Wis. 205, 157 N. W. 786; *Thomas v. Covert,*126 Wis. 593, 105 N. W. 922.

It is well established that the beneficiary under such a certificate does not acquire absolute and indefeasible rights until the death of a member. *Rawson v. Milwaukee Mut. L. Ins. Co.*115 Wis. 641, 92 N. W. 378; *Ormond v. McKinley, supra; Raschke v. Haderer,*138 Wis. 129, 119 N. W. 812. We are cited to the case of *Faubel v. Eckhart,*151 Wis. 155, 138 N. W. 615, as authority to the point that the decedent had power to contract for the disposition of the proceeds of the certificate, and that if he did so for a valuable consideration it became irrevocable as to any subsequent beneficiary who is a mere volunteer as against the one named in such contract. This contention is not sustained by the decision of this case. The court there explicitly held upon the authority of *Hutson v. Jenson,*110 Wis. 26, 85 N. W. 689, “that the insured has no title, ownership, or property in the fund agreed to be paid to another after his death. He has a mere power of appointment of a beneficiary during his lifetime, and in that power the beneficiary has no vested interest.” Under the statutes, sub. 5, sec. 1957, the by-laws of the association, and the adjudications of this court the deceased had the power to change the beneficiaries of his certificate as he did, and the plaintiff had no legal or equitable, right to the proceeds of the certificate in question as against the defendant who was named by the insured as the sole beneficiary. The court properly held that the defendant is entitled to the fund paid into court.

*By the Qourt.*— The judgment is affirmed.