Thomas v. Thomas — 38 N.Y. St. Rep. 865

Majority

p. 865

Sarah A. Thomas, by guardian, App’lt, v. Mary E. Thomas, Impl’d, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 2, 1891.)

Headnote

Benefit societies—Change of benefciaby—By-laws.

The by-laws of a benefit society prescribed that in order to change the beneficiary designated by a member, the original certificate of membership must be returned with written directions as to the charge, which directions must be duly acknowledged; that these latter were to be recorded, anew certificate issued and the old one cancelled. After the death of the member these directions were found interlined by him with the name of his wife inserted over that of his daughter, the original beneficiary. Other changes were made. None of the new directions were acknowledged, no surrender had been made of the old certificates or request made for the issue of new ones. Held, that these acts were ineffectual to change the original beneficiary.

Appeal by the plaintiff from a judgment entered on the findings and decision of the court at special term (Niagara, November, 1889).

W. C. Ely, for app'lt; A. H. Potter, for resp’t.

This case is controlled by the same principles which governed the decision, at this term, in the case of the same plaintiff against the same defendant Thomas, impleaded with the Order of -Chosen Friends. In this case, as in that, the by-laws of the association required for the purpose- of a change of beneficiary that the existing certificate should be surrendered and a new one issued, but in this case fuller details were prescribed of the pro

p. 866

ceedings necessary in making such surrender. The provision was as follows:

Article VTII.

Section 2. Every member shall designate in his application some person or persons to whom the money shall be paid in the event of his death, and is authorized to make such change of beneficiary from time to time as he may desire, for which change he shall pay to the association the sum of fifty cents.

Any member desiring to make a change in his beneficiary shall return to the association his original certificate of membership, with written directions for such change attached or endorsed thereon, signed by such member, and duly acknowledged before some officer authorized by law to take acknowledgments, in which case the secretary shall record the same and issue a new certificate of membership in accordance with such direction, in place of such original certificate, which shall thereupon be surrendered to the association and become null and void.

In this case the member held two certificates in two classes ; A. and B. There were printed on the back of each certificate, blank forms in the following words:

I,--, to whom the within certificate was issued, do hereby

revoke my former direction as to the payment of the beneficiary

due at my death, and direct such payment to be made to ---,

having relationship to me of--.

Witness my hand and seal this —:-day of-, 188—.

-----. [l. s.]

This instrument must in all cases be acknowledged before a notary public or other officer authorized to take acknowledgments.

State of -

County of -

On this-day of-in the year one thousand eight hundred and-, before me the subscriber, personally, came-

--, to me known to be the person who executed this iustru-

-i

ment, and said-same.

• acknowledged that he executed the

1

Official Character.

After the death of Mr. Thomas there was found, in each of the certificates, the same interlineation as in the former case, of the name of his wife after that of his daughter as beneficiary, in the body of the certificate. Also that on both of the certificates he had filled the blanks in the first form by inserting his own name in the first blank, the names of his wife and daughter in the second, and their several relationships in the third; that to this form, in the case of the certificate in class B, he had attached his signature with the date of June 15, 1882, but that the same form on the other certificate (in class A) was never signed, and that in both the certificates the form of acknowledgment was left in blank.

p. 867

As in the former case, no offer was made by the member to surrender the old certificates nor any request that the association issue new ones; no application was made for a change in the designation of the. beneficiary, nor notice that the member had assumed to make an alteration in the certificates in respect to such designation. The fact that the member pursued, to a certain extent, the formalities prescribed by the regulations, as preliminary to a surrender of his certificates, and the application for new ones, does not take the case out of the rule discussed and applied in the former case.

The judgment appealed from, which was the same as in the former case, must be reversed.

. Judgment reversed and a new trial granted, with costs to the appellant to abide the event

Macomber, J., concurs.