(77 Hun, 6.)

#### CULLIN v. SUPREME TENT OF KNIGHTS OF MACCABEES OF THE WORLD.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Mutual Benefit Insurance—Revoking Designation of Beneficiary.

The constitution of a mutual benefit association (article 2, § 10) provided that no transfer of a certificate should be binding on the association unless executed with certain formalities. Section 11 provided that, on the death of all the beneficiaries named by the member before his death, if no other disposition was made thereof, the benefit should be paid to certain relatives of the member, and, if there should be no such relatives, it should revert to the association. Article 4, § 7, provided that, in case no direction is made by the member in the certificate, and he does not leave surviving him any of the relatives referred to in the preceding clause, the benefit should revert to the association. *Held*that, where a member revoked his designation of the beneficiary without .making another, it will be treated as if none had been made, and the benefit goes to the relatives enumerated in article 2, § 11.

Action by Rosa Cullin against Supreme Tent of the Knights of the Maccabees of the World to recover $2,000 on an endowment certificate. Defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance after direction of a verdict in favor of plaintiff. Denied.

Argued before DWIGHT, P. J. and LEWIS, HAIGHT, and BRADLEY, JJ. .

W. H. Hourse, for plaintiff.

G. M. Rider, for defendant.

HAIGHT, J.

The principal exception brought up for consideration was taken to the direction of a verdict in favor of the plaintiff. This action was brought to recover the sum of $2,000 upon an endowment certificate issued by the defendant to the plaintiff’s husband. The defendant is a corporation organized under the laws of Michigan, having its principal office at Port Huron in that state. Its object, among other things, is “to establish a benefit fund or funds, from which, on satisfactory evidence of the death of a member of the order who has complied with all its lawful-requirements, a sum not exceeding $2,000 shall be paid to the widow, children, dependent, mother, father, sister, or brother of a member, as he shall direct, and as the endowment laws provide,” etc. Subordinate tents are established at different places, under charters issued from the supreme tent. Under such a charter there was. organized at Olean, H. Y., a subordinate tent known as “Riverside Tent Ho. 10.” On or about the 12th day of February, 1890, John Cullin, the plaintiff’s husband, upon his own application, was admitted as a member of the Riverside Tent Ho. 10, and thereafter, and on or about the 10th day of March, 1890, the defendant issued to him its certificate of endowment Ho. 7,128, which, among other things, contains the following provision:

“This certifies that Sir Knight John Cullin. has been regularly admitted in. and is recognized as a member in good standing of, Riverside Tent No. 10, located at Olean, N. Y., and that in accordance with and under the provisions of the laws governing the order his legal beneficiary named therein is enti*277tied to receive one assessment on the membership, not exceeding $2,000, and said sum will be paid as a benefit to Mrs. Margaret Rochford, his niece, dependent, upon satisfactory proof of his death, together with the surrender of this certificate," etc.

John Cullin died on the 12th day of September, 1890. The complaint, among other things, alleges that—

•‘After the death of said Cullin satisfactory proofs of death were made out- and forwarded, and this certificate surrendered to the defendant, in compliance with the laws, rules, and constitution of the defendant in such cases made and provided, and payment thereof duly demanded, which was refused.”

It is further alleged in the complaint—

"That the said certificate of insurance was made payable to one Margaret Rochford, dependent, and that said John Cullin, on the 1st day of July, 1890, being of sound mind and memory, revoked said direction of payment to said Margaret Rochford, and died without leaving any legal directions as to its payment; * * * and with knowledge of such revocation on the part of the defendant it received several assessments, dues, and per capita tax thereunder, and continued said insurance.”

These allegations are not denied by the answer, and therefore, for the purposes of the trial, stand as admitted facts in the case. Does the plaintiff, as the widow of John Cullin, become entitled to the fund upon his death, the direction of payment to Mrs. Eochford having been revoked? This question must be determined from the constitution of the defendant. The right of revocation appears to be sanctioned by. article II, § 10, of the constitution, which provides that—

‘‘No transfer or assignment of a certificate will be binding on this association unless consent is given thereto by the supreme commander and supreme record keeper, and the surrender to this association of the certificate so transferred or assigned.”

The certificate could not well be transferred or assigned to another without a revocation of the payment directed to be made to the beneficiary therein named. The transfer referred to is by the member of the order. This is apparent from the sentence which precedes that quoted, which limits the right of a member to transfer the certificate to any person other than his wife, children, dependents, mother, father, sister, or brother. There must, therefore, be a revocation of the direction to pay the beneficiary named, and then a transfer or an assignment to another person. The transfer or assignment to another person can be made only upon the consent of the supreme commander and supreme record keeper, but no consent to a revocation of the direction to pay to the person named appears to be required. Section 11 of the same article provides that—

“In the event ot the death of all the beneficiaries named by the member before the decease of such member, if no other disposition be made thereof, the benefit shall be paid to the beneficiaries of the deceased member, first, in the order named in the preceding section; and, if no person or persons shall be'found entitled to receive the same by the laws of the order, then it shall revert to the endowment fund of this association.”

It is claimed, however, that this section has no application to the case under consideration, for the reason that it is limited to *278an event in which the death of all the beneficiaries precedes that of the member, and the member has neglected to designate another beneficiary. But in this connection we have the concluding clause of section 7 of article 4, which provides that—

“In case no direction is made by the member in such certificate, and he, leaves no widow, children, dependents, father, mother, sister, or brother, the •benefit shall revert back to the endowment fund of the supreme tent."

—So that it is apparent from this provision that it was not intended that the fund should revert to the supreme tent or to the association, should the deceased leave a widow, children, dependents, father, mother, sister, or brother; and the inference is that it was intended and understood that, in case no direction was made by the member in the certificate as to the person to whom the endowment should be paid, it should be paid to the widow, children, etc., in the order named, in case she or they survive him. Section 11 and section 7 should be read and construed together, and, when so considered, the intention is, to our minds, quite apparent; and it is that, in the event of the death of the beneficiaries named in the ' certificate before the decease of the member, and if no other disposition be made thereof, or in a case where no direction has been made by the member in such certificate, the benefit should be paid to the beneficiaries of the deceased member first in the order named in section 10, which is first, to the widow, if there be one; if not, to the children, if any survive; if not, to the dependents, etc. It is true the plaintiff first designated Mrs. Bochford as the beneficiary in the certificate, but he subsequently revoked such designation, and thereafter the certificate remained without any designation. Mrs. Bochford would not be entitled, because her designation had been revoked. The fund would not revert to the supreme tent, because the constitution provides that it shall only so revert back in case the member does not leave a widow, children, etc. We think, therefore, that the certificate must be treated as if no designation had been made, and that, under our interpretation of the provisions of the sections quoted, the plaintiff becomes entitled to the fund.

Upon the trial three reports of the finance keeper of the subordinate tent to the supreme tent were offered in evidence for the purpose of showing that John Cullin had been suspended as a member of the order for the nonpayment of assessment No. 53. They were objected to, and rejected by the court. L. A. Mallory was the finance keeper. These reports were made out by one J. J. Quigley, who testified that he was authorized by the finance keeper to make out the reports in his name. They contained statements to the effect that John Cullin was suspended August 10th for nonpayment of assessment No. 53. Mallory was sworn as a witness upon the trial, and testified that he was the finance keeper of the Biverside tent; that assessments were payable to him; but he does not state that any assessment was due and owing from Cullin at the time of his death, or that he had been suspended because of the nonpayment of any assessment. ■ No evidence was introduced *279showing that the supreme tent had, by resolution or otherwise, made any such assessment. There was evidence to the effect that the Bee Hive was the official paper of the order, in which notices of assessment were printed. It appears that a bundle of the Bee Hive papers came to the post office in Olean, and that John Guilin’s name was on one of the papers; but as to whether the paper contained notice of any assessment the case is silent. So that we have no evidence that such an assessment was ordered, or evidence of the service of any notice of it .upon John Cullin, or evidence that all of the assessments were not paid by him to the finance keeper. There is only the report of Quigley, the local record keeper, made out in the name of the finance keeper, above referred to. We think the reports were not evidence, and that they were properly excluded by the court.

Under the view taken by us, the evidence to the effect that Mrs. Bochford was not a dependent was immaterial; but it could do no harm, for that fact was alleged in the complaint, and was not denied by the answer.

It was not necessary to prove service on the association of the proofs of death, for that fact, as we have seen, was also alleged in the complaint, and not denied. The defendant’s motion for a new trial should be denied, and judgment ordered for the plaintiff upon the verdict. All concur.