#### Sarah A. Thomas, by Guardian, App’lt, *v.*Mary E. Thomas, Impl’d, Resp't.

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

*Filed June 2, 1891.)*

Benefit society—Change of beneficiary—By-laws.

The by-laws of á benefit society prescribed as the sole method of changing the beneficiary named in the certificate of membership the surrender of the original certificate and the issue of a new one. The member never did any of the acis required by the by-laws, but at his death the certificate was found with an interlineation after the name of the original beneficiary, the plaintiff, of the words “ and my wife, Mary Elizabeth Thomas.” *Held,*that this interlineation was of no force and did not affect the right of the plaintiff to receive the entire proceeds.

Appeal by the plaintiff from a judgment entered on the findings and decision of the court at' special term (Niagara, November, 1889).

*W. C.*Ely, for app’lt; *A. H.*Potter, for resp’t.

Dwight, P. J.

The controversy is between the daughter and the widow of David H. Thomas, deceased, who died holding a beneficiary certificate of membership in the association, or order, joined as defendant in this action. The certificate, as issued, in accordance with the application of the member, designated the plaintiff, his daughter, as the sole beneficiary. About a year after the issuance of the certificate Mr. Thomas married the defendant, Mary E. Thomas, and he died about five years later. After his death there was found interlined in the certificate, in his own handwriting, after the name of the plaintiff, where she was designated as beneficiary, the words “and my wife, Mary Elizabeth Thomas.” No other step had ever been taken towards effecting a revocation of his original appointment of a beneficiary, nor towards procuring the designation of a new beneficiary. No application had ever been made to the order, defendant, for a change in such designation, nor notice given that an alteration had been made by the member in the certificate issued to him.

The by-laws of the Order of Chosen Friends prescribed, as the sole method of procuring a change of beneficiary, a surrender of the original certificate and the issuance of a new one. No offer

*868was ever made by the member to surrender the original certificate, nor any request for the issuance of a new one. The by-law referred to was in these words: *“A*member in good standing may, at any time, surrender his or her relief fund certificate and a new, certificate shall thereafter be issued, payable to such person or persons as the member may direct, upon the payment of the certificate fee of fifty cents.” This regulation recognizes the certificate as the act and contract of the association by which it was issued, and clearly negatives (if that were necessary) the proposition that it is competent for any person other than its duly authorized officers to change that contract in any of its terms; or, even, that it is competent for its duly authorized officers to make such change except in the mode prescribed by its laws. The rule seems to be based upon the most elementary principles applicable to contracts, but its application to the particular case of a change of beneficiary in contracts of this nature has been repeatedly affirmed. *Ireland*v. Ireland, 42 Hun, 214; 5 N. Y. State Rep., 89 ; *Sanger*v. Rothschild, 50 Hun, 157; 19 N. Y. State Rep., 345; S. C. in court of appeals, 34 N. Y. State Rep., 258; *Gladding*v. Gladding, 29 id., 485. In the case of *Luhrs*v. Luhrs, 24 N. Y. State Rep., 252, the general term of this court, in the first department, held the rule applicable in a case of great hardship, where everything to accomplish the purpose intended had been done by the member in strict accordance with the regulations of the association, and nothing remained to be done except the issuance of the new certificate by the association, and that was prevented only by the death of the member. The court of appeals reversed even that judgment with hesitation, and only upon the distinct ground that nothing remained for the insured to do to accomplish a full compliance with the law of the association, and that the association had no alternative but to issue the new certificate if only the member had lived long enough to receive it.

We regard this case of *Luhrs*v. Luhrs, in the court of appeals, as conclusive in its reasoning in favor of the contention of the appellant in this case. . Here the member had done nothing which was required by the laws of the association to accomplish the change of beneficiary. He had done nothing which, under the laws of the association, authorized its officers to make the change, much less required them to do so. He had simply assumed to make the change himself in a manner equally unauthorized by the laws of the association and the law of the land.

Upon the principles thus firmly established in reason and by authority we regard the conclusions of law of the learned court at special term to the effect that the wife and daughter were joint and equal beneficiaries in the certificate in question, and each entitled to receive one-half the money secured thereby, as not warranted by the undisputed facts of the case.

The judgment, which was in accordance with those conclusions, must be reversed.

Judgment appealed from reversed and a new trial granted, with costs to the appellant to abide- the event

Macomber, J., concurs.