HILL v. AMERICAN LEGION OF HONOR

A fraternal beneficiary corporation had the following by-law: "In the event of the death of all the beneficiaries selected by the member before the decease of such member, if no other or further disposition thereof be made in accordance with the provisions of these by-laws, the benefit shall be paid to the widow and children of the member in equal shares; if none, then to the heirs of the deceased member, and if no person or persons shall be entitled to receive such benefit it shall revert to the Benefit Fund." Held, that where a member died without widow, children or heirs at law, and the corporation waived the claim of reversion to its benefit fund, the executor of the deceased member might be admitted as a party to a suit on the certificate, in order to enable him to raise the question whether there was a resulting trust.

Under the provision of St. 1894, c. 367, § 8, that where the wife, children, father, mother, brothers and sisters of a member of a fraternal beneficiary corporation have all died, his certificate may be transferred to "any other person," the member may designate a stranger as the beneficiary, and such designation will not be rendered void by the fact that it was made upon an agreement that the beneficiary should pay the dues and assessments of the member. The provision of the section above named that "No contract under this section shall be valid or legal which shall be conditional upon an agreement or understanding that the beneficiary shall pay the dues and assessments, or either of them" applies only to the original making of the contract, and not to the subsequent transfer of a certificate originally valid. Whether the prohibition applies to a case where the benefit society is not a party to the agreement or understanding that the dues are to be paid by the beneficiary instead of the member, quære.

LORING, J.

The claimant has no standing in her own right; she has no claim as a dependent, because she was not designated by the member as the beneficiary; nor as an heir, for she was not a relative of the member, and a legatee is not an heir. But the claimant's rights in her representative capacity as executrix of the estate of the member cannot be disposed of on this ground. If the benefit society represents those interested in the benefit fund to whom under the provisions of By-law 118 the benefit reverts in case the members die without heirs and without having designated some one to receive the benefit, and the society waives that reversion, it may be that the benefit would fall into the estate of the member by way of resulting trust. But see Eastman v. Provident Mutual Relief Association, 62 N.H. 555; Maryland Mutual Benevolent Society v. Clendinen, 44 Md. 429. As the pleadings now stand we cannot say that the society has not waived the claim of the benefit fund; it has admitted its liability to pay the benefit, has summoned in as claimant Ellen White, and has made no claim to the benefit itself. We cannot say that Ellen White, as she is executrix of the estate of William Leahey the member, is not entitled to be heard on the questions raised by the pleadings as they stand.

We are of opinion, however, that the designation of the plaintiff was legal, and for that reason the claimant's motion to amend so as to become a party as executrix was rightly refused. The designation of the plaintiff was made under St. 1894, c. 367, § 8, which provides that in case of the death of wife, child, father, mother, brothers or sisters the certificate may be transferred to "any other person," and was not rendered void by the fact, if it was a fact, that the designation of the plaintiff as beneficiary was made upon an agreement or understanding that the plaintiff should pay the dues and assessments of the member. The provision of St. 1894, c. 367, § 8, is that "No contract under this section shall be valid or legal which shall be conditional upon an agreement or understanding that the beneficiary shall pay the dues and assessments, or either of them." This must be construed to be limited to the contract whereby the person on whose death the benefit is payable becomes a member of the beneficiary society, and to forbid the making of that contract on condition that the dues are to be paid by the beneficiary and not by the member; the clause does not in terms cover the designation on that condition of a stranger to be the beneficiary, where the contract was originally legal and the member's interest in continuing his membership has gone with the death of his relatives. It well may be that the Legislature intended to forbid the first but not the second, and the language used by it goes no further than to forbid the first.

It is not necessary to consider whether a case comes within the prohibition of the statute where the benefit society is not a party to the understanding that the dues are to be paid by the beneficiary in place of the member.

Exceptions overruled.