(dissenting.) Ordinarily, as between the wife and the brother of a party, the wife has a stronger claim upon the bounty of her husband than his brother has. There is generally a strong presumption that a husband or father, in any enterprise which has reference to the accumulation of property during his life-time, or in providing a bounty contingent on his death, has the welfare of those in view who are nearest to him. In the case at bar the circumstances are exceptional. It is evident that the marital relation between defendant and her husband was merely nominal. Their union had not been a congenial one. They separated about a year after their marriage, and continued so for more than a dozen years, came together again during the last year of his life, and lived in the same house; but, when taken ill, instead of going home to his wife, he requested to be taken to his brother, the plaintiff. The defendant, in her testimony in her own behalf, could not give any very good reason why they separated. To use her own language: “We did live apart. That was by mutual consent. He could not afford to support, me. That was the reason we separated. He said he could not make me a living. He said he would go, and I said I would go. I did not separate from him because he could not support me. I do not know exactly the reason why we separated. I never did know the reason why. I don’tknow to-day; noidea.” These facts indicate very clearly that there was no conjugal affection between the deceased and the defendant. She was entirely indifferent to him, and he to her. In any emergency, he clung to the plaintiff, his brother. No intendment, therefore, can aid the defendant because of his marital relation. So far as the dead brother expressed himself, either by deliberate action or written declaration, the tendency was towards the plaintiff. Neither plaintiff nor defendant had any vested right in the benefits to come from the certificate of membership. It was subject at all times to change of direction by Gladding, within the rules and regulations of the association. Luhrs v. Lodge, 7 N. *883Y. Supp. 487; Sabin v. Lodge, etc., 6 N. Y. St. Rep. 151. Gladding, at the time he took out the insurance certificate, clearly did not have in view the support of his wife, or a settlement for her. For some cause that does not appear here, he desired to provide for his brother, the plaintiff, and procured it to be payable to him. This was after he had been married about 15 years. Section 12 of the laws and regulations of the company (page 15) directs to whom payment shall be made upon the death of a member, naming wife, children, father, mother, sister, or brother, in the order named, “unless otherwise ordered, in writing, by the deceased member, such order to be signed in the presence of two witnesses. ” If, as between these parties, those formal requirements are controlling, then Henry L. Gladding, plaintiff, being the beneficiary named, would so remain. A change of the beneficiary could be effected only by an order of the deceased in his life-time, in writing, signed in the presence of two witnesses. There is no proof in the case that any change in the beneficiary ever took place in accordance with those provisions. The ■defendant produced the certificate, on which was an indorsement, made by the secretary of the association on the 15th October, 1886, changing the name of the beneficiary to Alice S. Gladding, the defendant. The indorsement recites that it was done at the written request of the insured, on file in the office of the association. Ho written request was produced or proved. Ho witnesses were sworn who ever saw it. Chism, the secretary who made the indorsement, does not tell us that he ever saw such a writing; so that the only evidence of a change of beneficiary to the defendant, the wife, is the act of the secretary making such an indorsement on the certificate. This act of the secretary did not effect the change. It was the written request or direction of the assured, if there was one, which produced that end. The recital by the secretary did not prove that there ever was any such written request or direction.
It seems, however, that Gladding knew that some kind of a change in the beneficiary had been made before the time he was taken sick, as the plaintiff himself testified that when he went to the secretary of the association he told him that his brother desired to change the designation of the beneficiary back -to its original condition. Thus it appears that the deceased did sign and acknowledge a writing re-establishing plaintiff as the beneficiary. It was acknowledged before a commissioner of deeds, and taken to, and shown to, the secretary of the association. The plaintiff and the secretary differ somewhat as to the language used at the time the writing was exhibited to him. They both testified that it was brought there, and exhibited to the secretary, given back to plaintiff, and he carried it away. The secretary states that the only •objection he made was that the appointment of beneficiary was not accompanied by the certificate; if the certificate had been produced, he would have made the formal indorsement to the effect that plaintiff was the beneficiary. At that time the certificate was in the hands of the defendant, where neither the sick man nor his brother could get it, and the secretary was so informed; yet he adhered to his position that he could not make any entry of the change •of appointment because the certificate was not produced. There was no other -objection. The paper was sufficient, in other respects, to effect the change. It is not easy to see upon what grounds the executive officer of the association •could refuse to recognize such a written declaration of change of beneficiary because the certificate was not produced. There was no such condition expressed in the document, or in the constitution or rules or regulations, as far as they appear. If his view of the rights of a member was correct, any person once named as beneficiary, who by any means got possession of the original certificate, could prevent any change ever being made. The member ought to be able to make any substitution, if his certificate of membership had been lost, stolen, or mislaid. As far as the evidence shows, there was .no change in the beneficiary from the original designation, made in conform*884ity to the formalities required by the rules of the association. If strict compliance with those formalities was necessary, then the defendant must fail, because the certificate names the plaintiff as the beneficiary, and neither plaintiff nor defendant has shown a written appointment, signed in the presence of two witnesses. Although the secretary, at the time plaintiff presented the last written designation, refused to recognize it because the original certificate was not produced by plaintiff, yet the association does not in this action seek to avail itself of that objection. The defendant cannot raise for the corporation a defense it does not itself offer. Luhrs v. Lodge, above cited.
Considering that the association offers no defense, does not object on account of lack of form, -but leaves it a question solely between these parties, it will do to hold that the reinstatement of the plaintiff as the beneficiary was good, for the purpose intended, even though it was not recognized by the secretary. The ease then rests this wise: The plaintiff was the original beneficiary named in the certificate. If there had been a sufficient change to the defendant, it was competent in George W. Gladding to restore the original beneficiary; and the written declaration signed by him, and acknowledged by him before a commissioner of deeds, and certified by the commissioner, was sufficient for that purpose. The plaintiff, then, is entitled to the fund, and the judgment should be reversed.