The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-12-05

vocablc, yet whether the appointment be re-
garded as in the nature OF testamentary
act or inter vivos, where IL is made for a
valuable consideration, and when no express
power of revocation is reserved 1t Is not re-
vocable at the will of the donor of the power
Bacon Ben. Societies, sec 300 202, note l.
Chaplin vs.. Fcllowes 80 Conn. 1872.
think IL will be found in all the cases
holding that the member can change the
beneficiary, that the power Is expressly or
by necessary Implication given by the char
ter or constitution and bylaws and that in
n case like this the power docs not exist
Presbyterian Ass. Fund vs.. Allen, 100 Ind,
593.
But here the rights OF parties do not rest
solely upon the execution Of a power, for
the Grand Lodge has not only recognized
and accepted the execution OF the power In
favor Of Fulmer Thornton & Co., but hns
entered into an express contract with them,
by the terms Of which, under the facts Of
this case, II must be bound. II Is ques
ton of contract and not Of power. fulmer
Thornton n Co. hold the written contract Of
the Grand Lodge, under which il promises
IA pay them 5000 on certain terms and
conditions. III these terms have been com
piled with, and the conditions have been
fulfilled, then the Grand Lodge is liable un.
der the express promise OF tho contract
The question OF the valid execution Of o
power has been passed by the consent Of the
Grand Lodge itself, and IL is too late for it
TO make that question now, II in other re-
spects IL is bound on It's contract
But am satisfied that the lodge Is bound
to Fulmer, Thornton & Co. also upon an
other distinct equitable doctrine. 10 not
only made Us contract with them, but with
out the slightest evidence of notice 10 them
Of the change In It's Organic law In 1884, or
OF It's policy Of doing business II has re
coiyod from thcm--nu doubt after due no.
tico OF as,cssmCnts--thc calls on the benefit
certificate from time 10 time until the death
OF Grant Under such circumstances il ~
stopped now TO set up the charge of Jaw
aud policy and thereby after receiving the
money Of Fulmcr. Thornton a Co. 10 defeat
all their rights under the contract aud deal
ings with them. Hitchcock W. Galveston.
~ u. s SOL. Railway vs.. McCarty, 90 u.
). 267.)
II has been insisted In argument that the
expressed nature and objects Of tho order as
declared In its kentucky charter, forbid the
idea that It's bcucfactions could be paid TO
creditors aud that this IL ultra wires of the
corporation. There are two plain answers
10 this constructions tll tho charter en-
expressed terms authorized the order not
only TO pay It's beneiaction to the family
of "a member, but also AS hc may direct
the power Of tho member 20 direct
the payment, aud under II he has
clearly the right TO direct tho payment 90
creditor, and this confessedly was the un.
Outstanding Of the lodge which induced II
10 issue tho certificate 10 Fulmer Thornton
a Co.. aud also induced 1t to abandon the
Kentucky charter and organize under
new law which does restrict the power Of
appointment Ia members of the family or
4. .l....N -
after the order has had the benefit OF the
contract aud II has been executed, il is
we'll settled that the corporation cannot
defeat tho contract upon the defense Of
ultra wires. Niblack, sec. 4 Mott vs.. Re
neau Carbolic Company, 10 n. w, Report,
100 bloomington, etc. vs.. Blue, 100 ILL.,,
l2l; Well W. Trnnord, 3 Tenn, ch. los,
Green Brice's ultra wires, 12l note cases
Railway Company, Mccarthy ~ u. H., 25S;
Hitchcock W.. Galveston, ~ U. y. ISL.
The first certificate 10 the wife Of Grant
was surrendered To the lodge Ia accordance
with It's constitution aud regulations, and
therefore In the absence Of any proof OF
fraud, durcss or other equity affecting the
wiic's interest hereunder and also because
IL Is not shown that ID was even delivered Ia
her (which Is held IN be necessary i'm the
Laid case. . Lea, 7l0) no rights can be ascor
tanned In the ease based on IT, Lennon vs.
Phwnix NJ. J.. lns Co, ~ Conn. 30i; Bacon,
sec 300 aud cases and 800
While appreciate the sacred character OF
these benefit funds and would desire To soc
them In all cases bestowed upon the families
Of the members, regard the inyiulability
Of contracts rs equally sacred and according
20 my Wow OF the law | feel constrained 10
~ adiudgc this case ~ Ia protect the con.
tract even though the interests oi the child
Of The insured nrs thereby affected. The
child Is entitled 10 tho surplus of the fund
after satisfying Fulmcr. Thornton & Co. .
demand, under the last certificate. for that
is valid except ~ far only ~ II impairs the
contract right of the creditors. II this sur
plus Il paid into court 10 can only be with
drawn under the statutory removal pro.
cecd.nw by regular guardian who will
give q special bond, etc.
y. Il. Esrn, Chancellor