Sanger v. Rothschild — 34 N.Y. St. Rep. 258

Majority

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Simon Sanger, Individually and as Adm’r, App’lt, v. Emma Rothschild, Individually and as Adm’rx, Resp't.^[1]

(Court of Appeals,

Filed December 2, 1890.)

Headnote

Benefit societies—Constitution and by-laws controlling as to beneficiary.

In 1881 William Rothschild was a member of a mutual aid association, and directed in writing that the endowment of $1,000 be paid to plaintiff and another. In 1884 he married defendant and in 1888 died. By a revision of the laws of the association in 1887 the endowment was to be paid first to the widow, etc., and if a member designated a beneficiary he must leave one-half to the widow. Held, that as the designation of 1881 did not conform to the law then in force, which required that “ in any designation which a member may make at least five hundred dollars must be left to his widow,” it was wholly ineffectual and the widow would take the whole fund.

Appeal from judgment of the supreme court, general term, first department, entered upon case submitted under § 1279 of the Code of Civil Procedure.

Sol. Eohn, for app’lt; Wm. S. Cogswell, for resp’t.

In 1881 the defendant’s intestate, William Rothschild, who was then unmarried, was a member of a mutual aid association known as the Independent Order of Free Sons of Israel, and he made a certain declaration in writing whereby he directed that the endowment of $1,000 provided for by the laws of the association should, upon his decease, be paid to his uncle and aunt Simon and Yandel Sanger. In 1844 he married the defendant, and he died in 1888, without having made any other disposition of the $1,000. The plaintiff now claims one-half of the $1,000 under the disposition thereof made by the declaration of Mr. Rothschild in 1881, and the defendant, his widow, claims the whole thereof under the laws of the association.

The laws of the association as found in its constitution must govern the rights of these parties. Mo member could dispose of his interest in the endowment fund contrary to those laws, nor except as permitted by them, and so both parties admit.

The disposition made by Mr. Rothschild was authorized and legal when made and would, if he had not married, have carried the fund to the beneficiaries named by him. But we think by his marriage liis previous disposition was rendered ineffectual. Both parties concede this to be so under the laws of the association as they existed previous to 1887. But in that year its laws were revised and new laws were promulgated, and it is admitted that the rights of these parties are governed by the laws in force when Mr. Rothschild died.

These laws provide that the endowment of $1,000 shall be paid first to the widow, second to the children, if there be no widow, and third to the parents if there be no widow or children, and they empower a member to designate any beneficiary of the fund, provided that he must leave at least one-half thereof to the widow, if there be one, and if not, then at least one-half to the children, if

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any. In this case it is admitted by the plaintiff that if there had been no designation the widow would be entitled to the-whole of the fund. But he claims that the laws operate on the designation only so far as to cut down the plaintiff’s right by virtue thereof to one-half of the fund so as to leave the defendant $500, as provided by the laws. The only question, therefore, for us to determine is whether the designation made in 1881 can have any operation under the laws adopted in 1887. Mo designation could be valid unless made “in accordance with the laws and rules ” of the association. The designation made in 1881 can certainly be no better than if it had been made after 1887. And the laws then in force required that “in any designation which a member may make at least five hundred dollars must be left to his widow.” This designation leaves nothing to the widow, and therefore is not in form or substance in conformity with the law. A married member of this association may exercise the power of designation given by the laws. But in the designation he must leave his widow at least $500, and he may leave her more as he may determine, and unless he exercises the power of designation in this way his designation is wholly ineffectual, and the widow will take the whole fund as provided in the laws. The widow is entitled to at least $500, and in the absence of any designation by her husband of the amount she is to have, by what authority can her right be cut down to $500, or any sum less than the $1,000 ?

The judgment should, therefore, be affirmed, with costs.

All concur.