(.dissenting): This is an action to recover upon a certificate issued by the defendant, by which it was agreed to pay upon satisfactory proof of the death of Hattie D. Mauch the sum of $1,300, less certain sums stipulated in the certificate. The defendant is a fraternal beneficiary corporation, and the certificate is issued only to members of the order.
The certificate contains the following paragraph: “ This certificate is issued subject to and to be construed and controlled by the laws, rules and regulations of the order now in force, or which may hereafter. be adopted. The application for membership is hereby referred to and made a part of this contract.”
By section 101 of the rules and regulations it is provided: “Ho benefit shall be paid on account of the death of a member, which ■ death occurred * * * (6). or from suicide, whether sane or insane, or whether voluntary or involuntary, at the time," except when the sanity of such member shall, prior thereto, have been judicially determined by the proper court. It is, however, expressly provided that if any beneficial member- of the Tribe of Ben-IIur commits suicide, he ipso facto, voids all rights under his beneficial certificate, and ipso facto, forfeits all benefits whatsoever to which his beneficiary or beneficiaries would have otherwise been., entitled, under the laws of the order, to receive from the Supreme Tribe; provided always that the executive committee shall pay to the *56beneficiary or beneficiaries of the deceased, the. amount herein provided, such amount being determined by the face value o^ the certificate or certificates, held by the member at the time of his death by suicide, taking into consideration the length of time lie shall have been continuously in good standing in the order, immediately preceding the date of suicide,” based upon the length of time the certificate had been in force. '
* Upon the back of the-certificate issued to the insured was printed . the following notice : . . ■
“Your, attention is directed to the following extract from the laws with relation to suicide:,
“ Suicide.
“ Sec. 5, Any member of the Tribe of Ben-Hur that commits suicide, ipso facto, voids all rights under his beneficial certificate, and ipso facto, forfeits all benefits Whatsoever to which his bene-.. fieiary or beneficiaries Avould otherwise have been entitled, under the general-laws of the Order, to receive from, the Supreme Tribe.” ,
Then-.follows a schedule showing the amounts to b_e received, based r upon the time the policy has been in force. ;
It was conceded at the -trial that the'deceased was insane at the ■ time of her death, and the referee found that her death was self-. inflicted, she having hung herself to a hook in a clothes room in her residence. It was also found that' the act was occasioned by her . insanity,- and; was not the voluntary, rational act of the insured.
- The .referee found that the defendant,, having made-the indorse.-, ment upon the back of the certificate, stating the rights and liábili-. ties of the respective parties in case of suicide,. was'estopped and precluded from' clabhing immunity from liabilities on. account of the provisions of any other' section - of the constitution or laws of • said defendant, and gave judgment for plaintiff for the amount, of the policy. . . . ...
It was conceded on "the trial that plaintiff was entitled to recover the sum of sixty-five dollars, being the sum to which he would ■ have been' entitled to judgment under the schedule set forth in by-law 101, ,
I think the .finding of. law by the r’eferee that the defendant' Was estopped cannot .be sustained. The stipulation in the •certifi- ■ cote was that the certificate was subject to all the rules and regula*57tians of the society, with which the insured was bound to be acquainted. The stipulation is that she shall be bound by all the rules and regulations. The fact that the defendant called attention to one of its by-laws and not to another is not sufficient to avoid the contract. Section 5 does not in any way purport or attempt to qualify the original stipulation in the policy that it shall be subject to all the rules and regulations. Having once entered into the stipulation, the defendant was not bound to again call attention to each and every provision of the policy, but if for any reason it • called especial attention to any of the provisions it was only a matter of extra precaution, and did not in ahy way waive any of the other, provisions, or authorize the insured to rely upon the notice as supporting the more comprehensive stipulation of the policy.
The respondent upon this appeal bases an argument rather ingenious. upon the language of the court in. Weber v. Supreme Tent of K. of M. (172 N. Y. 490), but the exact question at issue in that case was not as to the construction of a by-law of this kind, but as to the effect of an amendment of the rules after the issuing of a policy which insured against unintentional self-destruction, and it was held that a society which had insured a member against unintentional self-destruction after one year, could not, by a subsequent amendment of its by-laws, provide in effect that self-destruction while insane within five years from the date of the policy should deprive the beneficiary of his rights under. the contract, for the. reason, that the amendment was unreasonable. The case does not assume to hold that the parties to a contract of insurance may not stipulate at the time as to the conditions under which a certificate may issue.
The argument of the respondent further is based upon the legal - definition which has been given to the term “ suicide,” and is to the effect that as the court has held the legal definition of “ suicide ” to be “ the intentional taking of one’s own life,” therefore, as an insane person is incapable of forming any intent, there can be no such thing as suicide while insane. We think a logical construction of the language of the policy under discussion .can be had .without resorting to strained or unusual definitions of the language used. As was said in the case of Shipman v. Protected Home Circle (174 N. Y. 398), “ For colloquial purposes the term ‘suicide’ is at once *58sufficiently specific and comprehensive to cover all kinds of human self-destruction ; hut if. the law is to distinguish between the. self-destruction of the insane and' the self-inflicted death of the sane; insurance contracts must be construed in the light of definitions which express the distinction.” And in that case there being a finding of the trial court that the insured committed suicide, it was held that his act was illegal, and that under a provision of the policy which avoided the policy if his death should be caused by any illegal act, the plaintiff was not entitled to recover.
In insurance contracts, as in all other contracts, the primal consideration is the intent of the parties, and this intent, if not illegal, is to be given effect. As we have seen, the language is sufficiently broad to cover any cause of self-destruction. It will be presumed that the language was of some significance, and is to be construed so as to give effect, to the intent of the parties. Under the broad definition of • the word “ suicide ” the clause would be rendered, “If death occurred from self-destruction, whether sane of insane, whether voluntary or involuntary; ” and this would appear to be a fair construction of the language used, and one which gives the clause its full effect without rejecting or straining any of the language employed. As was said in Weber v. Supreme Tent of K. of M. (supra): “ It was entirely competent, of course, for defendant to provide in the contract between it and its members that there should be no recovery in the event that within a given period the insured should take his own life, although insane, and it could as well have provided that the effect of a death by consumption should be to avoid the policy and deprive it of .all force, and the same could be said of typhoid fever or any other disease; ” but in the case cited, as the policy contained no such stipulation, it was held that the.plaintiff was entitled to recover. It is difficult to see how that case can logically, aid the plaintiff here.
Again, it is said that the two provisions of the policy, namely, the section indorsed on -the policy and section 101,■ are inconsistent, but we do not think this well founded. Section 5 is entirely embraced within section 101, section 101 not being inconsistent, but more comprehensive, the greater embracing the less, and the provisions are not inconsistent.
I think the judgment directed by the referee was not war*59ranted, and that under the stipulation of the policy the death of the insured, caused by her own hand, avoided the policy.
It appears, and the referee has found, that the policy was issued on the 7th day. of April, 1902, and that the death of the insured occurred on the 18th day of October, 1902. Under the stipulation of the policy, it having been in force less than one year, the beneficiaries were entitled to recover one-twentieth of the face of the policy, and the judgment should have been for this sum, together with interest. The referee has directed interest from March 1, 1903, in accordance with the demand of the complaint. The ease is silent as to the service of proofs of death, as the policy would have become payable only upon the proofs of death, and interest would probably run from that date,- but the appellant makes no point upon this appeal of the failure of plaintiff to file proofs of death.
Judgment should be directed for the plaintiff in the sum of sixty-five dollars, with interest from March 1, 1903, with costs to the appellant.