In March, 1886, Griffith Evans, the plaintiff's testator, became a member of the defendant Supreme Council of the Royal Arcanum, a fraternal benefit society. One of its by-laws provided that the object of the society was to establish a widows' and orphans' benefit fund, from which, on satisfactory evidence of the death of a member in good standing, a *Page 500 sum not exceeding three thousand dollars would be paid to his widow, if he had so directed.
In his application for membership he agreed that his suspension or expulsion from, or his voluntarily severing his connection with, the society would forfeit the rights of himself and his family or dependents to all benefits and privileges therein. He also agreed to make punctual payments of all dues and assessments for which he might become liable and to conform in all respects to the laws, rules and usages of the society then in force or which might thereafter be adopted. Upon this application a certificate of membership was issued to him which provided, in part, that if he complied with the laws, rules and regulations then existing, or which might thereafter be enacted, governing the council and fund, the society would, upon receiving satisfactory evidence of his death, pay to his widow, Marion L. Evans, a sum not exceeding $3,000.
At the time he became a member, assessments of $1.68 were imposed at irregular intervals, which he paid until 1898, when the by-laws were amended and he was required to pay a monthly assessment of $3.44. These assessments he paid until 1905, when the by-laws were again amended and he was required to pay a monthly assessment of $6.33 until he attained the age of sixty-five, when it was increased to $16.08. He paid the monthly assessment of $6.33 to and including February, 1913, when he became sixty-five years of age, and thereafter paid $16.08 each month until the 1st of October of that year, when he tendered the assessment of $3.44 under the amendment of 1898 and also the sum of $6.33 under the amendment of 1905. The tenders were refused upon the ground that the amount due was $16.08, and he was notified at the time of such refusal that unless he paid that sum he would be suspended from membership and lose all the benefits accruing under the by-laws. In refusing to pay the assessments he relied upon a decision of this *Page 501 court (Green v. Royal Arcanum, 206 N.Y. 591) to the effect that the amendment of 1905, increasing the assessment to $16.08, was unauthorized and invalid.
He then brought this action, the purpose of which was to procure a judgment directing the society to receive the sum of $3.44 each month as his assessment; and to enjoin it from suspending him upon his making such payment. Upon the complaint and affidavits he obtained an injunction pendente lite, enjoining the society from suspending him as a member and from in any manner interfering with his rights and privileges as such. To obtain the injunction he gave an undertaking in the sum of $250, to the effect that he would pay to the defendant such damages, not exceeding that sum, as it might sustain by reason of the injunction, if it were finally determined that he was not entitled thereto.
This was the situation when he died on March 23, 1915. After his death the action was continued in the name of his executrix, who served a supplemental complaint, in which she asked that it be adjudged he was a member in good standing at the time of his death; that the contract was then in force; and that the valid, legal rate of assessment from October 1, 1913, to the time of his death be determined. At the trial the facts were stipulated, from which it appeared that an appeal was taken from the decision of this court in Green v. Royal Arcanum (supra) to the Supreme Court of the United States, which reversed this court and held, in substance, that the amendment of 1905 was valid and assessments made thereunder were binding upon all members of the society. Notwithstanding such decision, and the fact that the assessments stated had not been paid, the trial court reached the conclusion that Mr. Evans, at the time of his death, was a member in good standing; that his contract of insurance was then in force; that the valid and legal rate of assessment for him from October 1, 1913, to March 23, 1915, *Page 502 was $16.08 per month, which the plaintiff was directed to pay and she was awarded costs against the society. Judgment to this effect was entered upon the decision, from which an appeal was taken to the Appellate Division, where the same was affirmed, two of the justices dissenting, and defendants now appeal to this court.
I am of the opinion the judgment of the Appellate Division and of the Special Term should be reversed and the complaint dismissed. Mr. Evans, at the time of his death, was not a member of the society. The contract between him and the society was the constitution, by-laws, his application for membership and the benefit certificate issued thereon. (Sabin v. Phinney,134 N.Y. 423, 428; Shipman v. Protected Home Circle, 174 N.Y. 398;Brenizer v. Royal Arcanum, 141 N.C. 409.) Under the by-laws he had, by his own act, in refusing to pay the legal assessments, ceased to be a member and had terminated his relations with the society. The temporary injunction did not continue him a member. All that did, or pretended to do, was to enjoin the society "from suspending" him as a member "and from in any manner interfering with his rights and privileges" therein. The society did not suspend him, nor did it in any manner interfere with his rights and privileges. He suspended himself. One of the by-laws provided that: "Any member failing to pay any regular assessment before the time prescribed for such payment in the Laws of the Order, or to pay any extra assessment within the time limited or prescribed therefor in the notice thereof, shall stand suspended from the Order and all benefits therefrom." Non-payment of the monthly assessments ipso facto operated as a suspension. (Anderson v. Supreme Council O. of C.F., 135 N.Y. 107. ) No affirmative action on the part of the society was required. The by-laws were self-executing. (Roehner v.Knickerbocker Life Ins. Co., 63 N.Y. 160; Freckmann v.Supreme Council R.A., *Page 503 96 Wis. 133; Bost v. Supreme Council R.A., 87 Minn. 417;Marshall v. Grand Lodge, 133 Cal. 686; Hunter v. NationalUnion, 197 Ill. 478.) The fact that this court in Green v.Royal Arcanum (supra) had erroneously decided that the assessments which he refused to pay were invalid was not a legal excuse for non-payment. This was conclusively settled and determined by the Supreme Court of the United States (RoyalArcanum v. Green, 237 U.S. 531) when it reversed the judgment of this court. When he refused to pay the assessments he took his chances that the decision of this court, on appeal, would be sustained. In October, 1913, when he tendered $6.33 as his assessment for that month, he was obligated to pay $16.08 and he should have paid that amount. A valid by-law so provided and he had agreed that his rights were to be determined by it. He, therefore, by his own voluntary act, severed his membership in the society when he violated his part of the agreement, which was "to make punctual payments of all dues and assessments for which I may become liable." For nearly a year and a half before his death he paid nothing to the benefit fund. He could not, during that time, be a member for the purpose of receiving benefits and not for the purpose of making payments imposed.
It is no answer to the suggestion to say that the court, by its decree, directed his executrix to pay the assessments which he ought to have paid in his lifetime. A contract of this character, once destroyed, cannot be brought back to life in that way. It is beyond the power of a court of equity to so decree. Had Mr. Evans lived he would have been under no obligation to make the payments. The society could not have compelled him to make them. The injunction given imposed no such obligation. He did not even offer or agree to make such payments in case he were successful in the action.
I am also of the opinion that plaintiff, as his executrix, *Page 504 cannot maintain the action. She, as such, has no interest in its subject-matter. It is elementary that an executor can maintain an action only when the subject-matter thereof affects the estate of his testator. Her testator had no interest in the proceeds of the certificate issued to him and his estate had none. He was merely authorized to designate some one to receive the proceeds to be paid upon his death. He designated his wife and the certificate issued to him provided that the society would pay to her, and not to his estate. If, at the time of his death, he had been a member in good standing, she personally would have been entitled to receive whatever the society paid. (Beeckel v. Order of UnitedFriends, 58 Hun, 7; affd., 124 N.Y. 661; Hellenberg v. Dist.No. One of I.O. of B.B., 94 N.Y. 580; Bown v. Catholic Mut.Ben. Assn., 33 Hun, 263; Holland v. Taylor, 111 Ind. 121;Stephenson v. Stephenson, 64 Ia. 534; Daniels v. Pratt,143 Mass. 216; Kentucky Masonic Mut. L. Ins. Co. v. Miller, 13 Bush, 489; McClure v. Johnson, 56 Ia. 620; Maryland Mut.Ben. Soc. v. Clendinen, 44 Md. 429.) Costs in an equity action are not a part of, or in any way connected with, the subject-matter of it. They are mere incidents of the litigation. (Crosby v. Stephan, 97 N.Y. 606; Eastburn v. Kirk, 2 Johns. Ch. 317.)
My conclusion, therefore, is that the judgments of the Appellate Division and Special Term should be reversed and the complaint dismissed, with costs in all courts.