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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 632 We are unable to agree with the learned court below in its construction of the contract in question. By the act of incorporation the object of the defendant was to aid and support members and their families in the case of want, sickness or death; and the act further provided that the corporation might create a beneficiary fund for the relief of members and their families, subject to such conditions and regulations *Page 634 as might be adopted by the defendant. This fund is to be set apart to be paid over to the families, heirs, or legal representatives of deceased or disabled members, or to such person or persons as the deceased might while living have directed. Following out such general purpose the seventh section of the constitution of the defendant, in order to promote benevolence and charity, provided for the establishment of this beneficiary fund, from which, on satisfactory evidence of the death of a member of the order, who had complied with all its legal requirements, a sum not exceeding $2,000 was to be paid to his family, or as he might direct. Stopping here it is plain that the parties who were to receive this $2,000 were by the very terms of the act of incorporation and of the constitution of the defendant, to be the families, heirs or legal representatives of deceased or disabled members, or such other person as the deceased member might while living have directed; and we think that in case no such direction was given, such payment was intended to be made to the family, heirs or legal representatives of a deceased member.
It is true the act and the constitution fail to state which it shall be in case no direction is given, whether it shall be the family, the heirs or legal representatives; but we think this expression should be construed with reference to the general purpose of the corporation, and, having such purpose in view, we think it was really meant and that it should be held to include those who would take such property as in cases of intestacy. It is true that, by the twenty-fourth section of the general laws of the defendant, it is provided that each member of the order shall be entitled to a certificate setting forth the name and good standing of the member, and the amount of the benefit to be paid at death, and to whom payable. But we do not think the issuing of such certificate is a condition precedent to the right of such legal representatives to receive the fund in question. The amount of the fund is provided in the by-laws, and it is there stated to be $2,000. We think the certificate is only necessary in cases where the money is to be paid, as directed by the member, to some person or body other *Page 635 than the family, heirs or legal representatives of the deceased member.
We cannot think that it was the intention of the defendant, in making up its constitution, its general laws and its by-laws, to make the issuing of such certificate a condition precedent to its liability to pay this amount to the families, etc., of deceased members, who at the time of their decease were in good standing, and who had paid all the assessments and fully complied with all the rules and regulations of the defendant up to that time. The neglect of the company might thus result in a forfeiture of the fund. The whole object of the corporation would thus be defeated, and a most unjust result would or might follow such a construction. If no certificate were given, it seems to us it would be the same as if the direction were to pay the money to the family of the deceased. This case is an example of the injustice that might be done if the construction adopted by the General Term were to prevail. For seven years the deceased had been a member of the order. He had paid all his dues and all the assessments which had been levied upon him by reason of his membership during that time, and had, therefore, contributed to the formation of the fund, part of whose benefits had gone to the representatives of other deceased members, and his right to share in which he may well have looked forward to as a means of alleviating the distress of his family consequent upon his death, and as an aid to their support in the future. That he should lose all this by a simple failure to obtain a certificate stating that it was to his family, or, in other words, to his wife and infant children that the fund should be paid upon his death, is a result at war with every feeling of justice and propriety. We do not think that any such result is called for by a fair construction of the provisions above alluded to.
The cases cited to sustain the judgment of the General Term, viz., Hellenberg v. District No. 1, Independent Order ofB'nai B'rith (94 N.Y. 580); Greeno v. Greeno (23 Hun, 478);Arthur v. Odd Fellows, etc., 29 Ohio, 557); Catholic M.B.Ass'n. v. Priest (46 Mich. 429) and Renk v. Herrman *Page 636 Lodge (2 Dem. 409) do not control the one at bar. In the first case the corporation agreed, upon the death of the testator, to pay $1,000 to his wife, if living; if dead, to his children, and if there should be neither wife nor children, then to such person or persons as he may have formally designated to his lodge, prior to his decease. The deceased died without either wife or children, and he failed to in any way designate to his lodge prior to his decease, the person or persons to whom he desired payment to be made, but he left a will, giving the money to his brother. By the express terms of the contract, therefore, the defendant was not to be liable to pay until such formal designation was made by him to his lodge prior to his decease, and as none such was made, no liability existed. The contract was too clear and unambiguous for any other construction. None of the other cases cited is like the one at bar. In deciding here that in the absence of the certificate the beneficiary fund would go to those who by the general laws of the state would take the money, we do not mean that the money would go as a part of the estate of the deceased, subject to the payment of his debts; but it would be a special fund, subject to the exemption provided for in the act of incorporation, and not to be liable for the payment of the debts of the decedent or to be taken on any process for the payment of such debts. We also think the plaintiff had sufficient interest in the fund to sustain this action in her capacity as administratrix. It is true the fund does not come into her hands technically and strictly as assets of the estate of her intestate, nor is it to be liable for his debts. But the plaintiff, in her capacity as administratrix, represents both herself and those others who are entitled to receive the fund as its intended beneficiaries, for it comes to them by reason of the membership of the deceased, and the plaintiff is a quasi trustee for her children, and as administratrix represents them in this action. But the question as to the right of the plaintiff to maintain this action, assuming that there might be a liability on the part of the plaintiff to pay some one, has not been raised herein. The issue really *Page 637 made and tried was as to the existence of any liability on the part of the defendant, and the courts below have held there was none. For the reasons already given, however, we think the action is properly brought in the name of the plaintiff.
We think the judgment of the court below should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.