#### Frieda Klee, Appellant, *v.*Caroline Klee, Respondent.

(Supreme Court, Appellate Term,

April, 1905.)

Insurance — Mutual benefit — Cancellation of lost certificate — New certificate — When “ family ” includes *“*mother.”

Where a wife, the beneficiary named in a certificate of membership issued to her husband, left him, running off with a boarder and taking the certificate with her and the husband upon an application for the cancellation of the certificate, makes the required declaration as to its loss and disappearance, and the association waiving its surrender issues a new certificate in which the mother of the member, with whom he was then living, was named as beneficiary, the cancellation of the first certificate is effectual if the mother was a proper person to be designated as beneficiary.

Where the certificate of membership in an association incorporated under a statute (1 Gen. Stat. N. J., pp. 150, 159, § 24) making it lawful to pay death benefits, according to rules and by-laws adopted, “ to the husband, wife, father, mother, son, daughter, brother, sister and legal representatives of such member ”, provided for the payment of the benefit to the “ family, orphans or dependents ” as such member might direct, the use of the word “family” must be held to have been made with reference to the persons enumerated in the statute and in the circumstances of the particular case the mother was properly designated as beneficiary.

Appeal by plaintiff from a judgment of the City Court of the city of ETew York in favor of defendant. The opinion • states the case.

August P. Wagener, for appellant.

Holls, Wagner & Burghard (Charles C. Cormany, of counsel), for respondent.

Leventritt, J.

This is a contest for the proceeds of a benefit certificate between the wife and mother of a deceased member of Manhattan Lodge No. 137 of the Knights and Ladies of the Golden Star, a New York branch of a *102mutual benefit insurance association organized under a general statute of the State of Hew Jersey.

On January 31, 1902, Frederick Klee became a member of the branch, and in the beneficiary, certificate issued to. him named his wife, the plaintiff, as the person to whom the benefit of $5.00 should be paid- on his death. One year later the plaintiff abandoned her husband, running off with a boarder in their household and taking with her all the effects, including the benefit certificate. Thereupon, Frederick Klee made an application for the cancellation of the first certificate making the required declaration as to its loss or disappearance. ■ Waiving its surrender, the association issued a new certificate to Frederick Klee in which he designated his mother, the defendant, as beneficiary. At the time- of his designation he was living in the- household of his mother, a very sick man, nursed by her until his death in July, 1903. The defendant claimed to- have paid the premiums on both certificates, but the plaintiff asserted that at least part of the moneys therefor was advanced 'by her. The association, on the rival claims of wife and mother, brought the money into court where the mother’s claim was upheld.

t I am of the opinion that if the defendant was a proper person to be designated as beneficiary the cancellation of the first certificate was effectual. Lahey v. Lahey, 174 N. Y. 146; Shipman v. Protected Home Circle, id. 409.

The association is incorporated under a general statute of the State of Flew Jersey making it lawful to pay death benefits:, according to rules and by-laws adopted, “ to the husband, wife, father, mother, son, daughter, brother, sister, and legal. representatives of such member.” 1 Gen. Stat. N. J., pp. 150, 159, § 24. Under this State law which is controlling and precludes the designation of other beneficiaries than those designated in the act, the certificate of incorporation provided for the payment of the benefit to the family, orphans or dependents as such members may direct.” These words *“*family, orphans or dependents ” must be read in reference to the statute under which incorporation was had, as the coiq>oration has no authority to *103create a benefit fund for others than the persons1 within the classes limited by law. Bacon Ben. Soc. (3d ed.), § 244; Massey v. Mutual Relief Society, 102 N. Y. 523; American Legion of Honor v. Perry, 140 Mass. 580. Thus,*'; the word “ dependents ” cannot be construed in its usual broader sense, but must be held to apply to one of the per-' sons named in the legislative act. On the other hand, with this rule of construction in mind, I think the word “ family ” was set out in the certificate of incorporation to embrace, under certain circumistances, all the other persons mentioned in the act, except legal representatives. Little is to be derived in this case from examining the various definitions that have been given to the term “family” in benefit or other cases. Precedents may be found where it has been held to include a mother, and others where it has excluded her. See 1 Bacon, *supra,*§ 256. Each case must be examined on its own facts. Here at the time of Klee’s death, his mother was part of his immediate domestic circle, • living under one roof with him. While, in accuracy, it might be more correct to say that he was a member of her family than that she was a member of his, yet the term is to be read in the light of the facts in reference to the meaning intended by the certificate of incorporation when viewed in connection with the enabling act. That limited1 the beneficiaries to a few named persons. The restriction is greater than ie usual in similar statutes. All the persons named, barring legal representatives, are kindred1, and may be, as they frequently are, included in the term “ family.” “ How this word *‘*family ’ * * * is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children, and living alone together, or it may mean children, or wife and children, or. blood relatives, or any group constituting a distinct domestic or social body.” Carmichael v. N. W. Mut. Ben. Assn., 51 Mich. 494. It is reasonable to assume that the incorporators intended to use the term in its broader sense, colloquially, perhaps, having in mind that all the persons contemplated by the statute would be embraced by the broad designation. It may have been deemed necessary to use the word “ or*104phans/’ so that in the case of the death of a surviving father or mother, it might not be. said that there being no family left, they could not take, in the absence of a special characterization. As the right to . designate beneficiaries is unlimited in the absence of restriction (Massey v. Mutual Relief Society, *supra),*we should not construe a general term *in limine,*unless compelled to do so.

I, therefore, conclude that the use of the term *“ family>f*in the certificate, was made in reference to the enumerated persons in the State statute, and that under the circumstances here disclosed the defendant was properly designated as a beneficiary. It follows, therefore, that the judgment should be affirmed.

Scott and Greenbaum, J.J., concur.

Judgment affirmed, with costs.