Opinion
June 7, 1907.
M.H. Newman, for the appellant.
Louis Sachs, for the respondents.
The membership of the deceased in the fraternal insurance association antedated the 19th day of November, 1905, on which day he married the plaintiff. On January 10, 1906, the deceased member executed two declarations, the first, by which he designated his five children, the individual defendants herein, as his beneficiaries, and the second, by which he declared the proportions in which the children should take, namely, $150 each to Jessie and Rose Weinstein and $66.66 each to Louise, Jacob and Harry Weinstein. He died on the 4th day of March, 1906, leaving him surviving the plaintiff, his widow, and five children, the individual defendants.
It is provided by the constitution and by-laws of the grand lodge of the order that "the sum of $500 as endowment is payable to the widow of a deceased member;" and that "a member may make a declaration to the effect that $250 of the $500 payable by reason of his death, shall be paid to his children in such proportion as he should indicate;" and that each subordinate lodge should keep a book for the purpose of having designated therein the beneficiary or beneficiaries of the endowment as allowed or permitted by the laws of the order, and that no other declaration than one so entered in such book shall be considered as sufficient.
Because the constitution and by-laws of the order, which, with the certificate of insurance, express the contract between the order and its member, declare that the wife shall be entitled to the fund, with the proviso that a member may designate his children to receive half of the beneficial fund in such proportion as he indicates, the plaintiff asserts a claim to the whole fund, maintaining that the children, the individual defendants, are entitled to nothing under the declaration made by the deceased on the 10th of January, 1906. By this declaration he sought to give the entire fund of $500 to his children. This result, as has been seen, he could not accomplish under his contract, so long as a widow survived. The question then is whether a declaration, in which the member directed that the whole sum of $500 should go in given proportions to his children, is sufficient as a declaration that half of the endowment fund should be theirs.
The Municipal Court, in the judgment appealed from, has held that a designation of the children as recipients of the whole fund of $500, should be construed as a designation that they should receive $250, and has reduced the amount each one was to have under the designation by one-half. This apportionment is tantamount to the making by the court of a new contract between the member and the order, which may not be done. Then, too, the constitution and by-laws of the order in effect declare that such a designation as made in this case is void, for it provides for the entry in a book kept for that purpose of designations as allowed or permitted by the laws of the order, which means, of course, that the book is not for the entry of any designation not permitted or allowed by its laws, and that no declaration other than one so entered shall be good. The designation leaves nothing to the plaintiff, but gives the whole fund to the children and "therefore is not in form or substance in conformity with the law." ( Sanger v. Rothschild, 123 N.Y. 577.) Because the deceased's designation was not such as is permitted under his contract with the order, it was wholly ineffectual, and the widow is entitled to the whole fund, there being no valid designation of any one besides her who should share in the proceeds. ( Sanger v. Rothschild, supra.)
The judgment should be reversed.
HIRSCHBERG, P.J., WOODWARD, JENKS and GAYNOR, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.