I concur, except as to costs. I do not see how the parties can control the discretion vested by statute in the court by their stipulation.
O’BRIEN, J.The by-laws provide:
“Sec. 4. In the event of the death of a beneficiary of a, member, and no .change of beneficiary shall have been made as hereinbefore provided, the share of such deceased beneficiary shall be paid to his or her legal representative.”
As there is no ambiguity in this language, it should be construed to mean just what it says, and the money, therefore, very properly ■could have been paid over by the legion to the legal representatives of the wife. I concur in the view expressed in the opinion of Mr. - Justice FOLLETT, that the wife had no vested interest during the life of the member, but, the latter having died after the beneficiary, the money should be paid to those designated in the certificate, which, read in the light of the charter and the constitution, made the contract between the member and the society. The parties had the right to agree upon the person or persons to whom, in the contingency named, the money should be paid. The questions, however, of who is entitled to the money, and that of who should receive it, are separate and distinct. Although in terms payable to the legal representatives of the beneficiary named (who in this case was the wife) for the purpose of administration, it by no means follows that her brothers or sisters are entitled to it. So to hold would be con*819trary to the certificate and the charter and constitution of the legion. They limit the benefits to the member himself, or to his family, or to dependents designated by him. I do not think, therefore, that the brothers or sisters of the wife have any interest in the fund, but it must eventually go to and constitute a part of the estate of the husband. At law, the surviving husband is absolutely entitled to the personal property of the wife, where she dies intestate without children. Whether, therefore, the wife had a vested interest or not,—and, as said, I concur in the view that she had not,—and though the payment of the fund by the legion under the contract was properly made to the administrators of the wife, it at once became the property of the estate of the husband; and, as the question here is as to what persons are eventually entitled to take, I think that this must be decided in favor of the estate of the husband. I therefore concur in the result reached by Mr. Justice FOLLETT, and, as the administrator of the wife had a right to receive payment, he should not be required to do "more than hand over such fund to the plaintiffs, who, as administrators of the husband, represent his estate.