#### James Day as guardian, etc. of Inez H. Case, resp’t. *v.*Emma Case, applt.

*(Supreme Court, General Term, Fifth Department,*

*Filed January*25, 1887.)

INSURANCE (life) MUTUAL BENEFIT ASSOCIATIONS — DESIGNATION OF BENEFICIARY.

In 1870, the Locomotive Engineers Mutual Life Insurance Association Issued to one II. M. Case a certificate of membership and policy of life insurance, at the foot whereof and underneath the signatures appeared the following: “ all payments or benefits that may accrue or become due to the heirs of the person insured, by virtue of this policy will be payable to Mrs. H. M. Case, or lawful heirs.” At the time this certificate was issued to Case he had a wife living by the name of Amelia M. Case, and a daughter, Inez H. Case. His wife Amelia M. died in 1878, and subsequently he again married Emma Case, the present defendant, and subsequently died, leaving Emma his widow him surviving, and Inez IL, his only child and heir at law. *Held,*that the first Mrs. H. M. Case must have been the person meant by Mr. Case in making the designation, and tbe person named in the certificate. That it cannot be assumed he then contemplated the death of his wife, and his subsequent marriage to the defendant. And that the certificate having lapsed as to his first wife, his lawful heir, which was Inez H. Case, became the person designated, and was entitled to the money.

*398Appeal from a final judgment entered upon an order sustaining tbe demurrer to tbe defendant’s answer.

*W. A.*Sutherland, for resp’t; *J. W. Stebbens,*for appl’t.

Haight, J.

On tbe 5tb day of July, 1870, the Locomotiye Engineers’ Mutual Life Insurance Association issued to H. M. Case a certificate of membership and policy of life insurance; at tbe foot thereof, and underneath tbe signatures, appears tbe following: “ All payments or benefits that may accrue or become due to the heirs of tbe person insured by virtue of this policy, will be payable to Mrs. H. M. Case, or lawful heirs.” At the time this certificate was issued to Case he had a wife living by the name of Amelia M. Case, and a daughter by the name of Inez H. Case. His wife, Amelia M., died September 12th, 1878, and subsequently and on the 3d day of February, 1882, he again married Emma Case, the present defendant, and subsequently and on May 29th, 1885, he died, leaving Emma, his widow, him surviving, and Inez H., his only child and heir at law. Subsequent to' his death the association paid into court the sum of $2,922.55, as the amount of benefits due under the certificate.

The question presented is, whether the plaintiff or the defendant is entitled to the money so paid into court.

There was no new designation of a beneficiary after the certificate was issued, or after the death of his first wife. That which we have quoted at the foot of the certificate was the designation made at that time. It was “ Mrs. H. M. Case, or lawful heirs,” meaning Mrs. H. M. Case, or in case she was unable to take by reason of death or other disability, his lawful heirs should become the beneficiary. It is now contended that Mrs. H. M. Case was the name of the defendant, his widow, and that consequently she is the beneficiary named in the certificate. That was not, however, her name at the time the certificate was issued. The only Mrs. H. M. Case at that time was Amelia M. Case, and she must have been the person meant by Mr. Case in making the designation, and the person named in the certificate. We cannot assume that he then contemplated the death of his wife, and his subsequent marriage to the defendant in this action. If Amelia M. Case was the person intended by the designation upon the certificate, then on her death the designation lapsed as to her, and his lawful heir, which was Inez H. Cáse, became the person designated as the beneficiary, and inasmuch as there has been no subsequent designation of any other person, it follows that she is entitled to the money.

It is urged that because the words “ Mrs. H. M. Case ” were used, that it was intended that the certificate should mean one person at one time and another at another time; that it meant *399Amelia M. at the time that it was issued, but that it meant the defendant at the time of his death.

Such, however, does not appear to us to have been the meaning of the instrument.

The judgment should be affirmed without costs. So ordered.

Bradley and Lewis, JJ., concur.