The defendant corporation owed no debt to the testator at the-time of his death, nor did it promise at any time to pay the beneficiary fund on his death to his personal representatives so that it would become part of his estate. The charter and by-laws of the defendant constitute the terms of an executory contract to which the testator assented when he became a member of the society. If the plaintiff has a right of action it must be found in some promise or covenant on the part of the defendant contained in its charter or by-laws. (Hellenberg v. Independent Order of B’nai Berith, decided in the Court of Appeals, an abstract of which is given in the N. Y. Weekly Dig. [vol. 18], 421; The Maryland Mutual Benevolent Society, etc., v. Clendinen, 44 Md., 429; Arthur v. The Odd Fellows’ Beneficial Association, 29 Ohio, 557.)
The charter and by-laws determine the rights of the members of the corporation, and the same may be enforced by the parties or beneficiaries according to their respective rights.
The beneficiary fund which the corporation was authorized to create and distribute was mainly derived by an assessment upon the living members. By the seventh section of the act of incorporation it is expressly provided, that this sum shall be paid over to the' family, heirs or representatives of deceased members, or to such person or persons, as they may while living have designated. It in no event is to become a part of the personal estate of the deceased. The contract so far as this event is concerned was not made in his own behalf or for his benefit, but for the benefit and support of his family or such individuals as he might name. It could not be claimed by his administrator or executor as an asset belonging to his estate; nor made liable for the payment of his debts. It was-no part of the purpose or scheme of the corporation to benefit the *266estate of the member while living or to increase it after death. The beneficiary might take the fund, and if the member omitted to exercise the privilege of naming one, then it would go to the class of persons mentioned in the ninth clause of the charter, in equal proportions. The corporation contracted with no one else. This was expressly decided in the case of this defendant against Mary Priest (46 Mich., 429). The court remarked: “ This being a beneficiary, fund does not become a part of the property or estate of the deceased subject to his debts, but is exempt therefrom in accordance with the provisions of the act of incorporation. It does not therefore go to the administratrix of the estate, but should be paid direct to the beneficiaries named.” ' ,
By one of the by-laws it js provided, “ the beneficiary fund on the death of a member in good standing shall be paid to the person ■or persons last named by the deceased and entered by his order on the “will book,” by the secretary, which book shall always be in the custody of the recording secretary. At least one witness besides the secretary shall be .witness to the entry.”
The deceased in writing and in due form, and in full compliance with the by-laws, did make an order, that, upon his death, the whole of the beneficiary money should be paid to his brother Patrick Fitzpatrick, and the same was in a proper manner entered in the will book and properly attested. Afterwards the testator made and published his last will and testament, the only devising clause therein being as follows: “After payment of my just debts and funeral expenses I give, devise and bequeath to my brother Patrick Fitzpatrick, all my interest in the Catholic Benefit Association, amounting to two thousand dollars, to have for his own use and benefit forever.” This is the instrument annexed to the letters of administration .granted to the plaintiff as the last will and testament of the testator.
It is conceded that Patrick Fitzpatrick, named in each of these instruments, is the same person.
As the appointment first made and registered in the will book was in all respects regular, it is admitted by the plaintiff, that if the same was in full force and effect at the time of the death of the decedent, then by force of the terms of the charter and the by-laws, the beneficiary fund passed on his death to the appointee, Patrick Fitzpatrick.
*267It is argued by tbe learned counsel for the respondent that the first appointment entered in the will book was revoked, and the one contained in the will is in force, and the fund is subject to the provision providing for the payment of the debts of the testator. In terms it is not a revocation, nor can it be fairly inferred that such was the intention of the testator, but on the contrary, he names the same individual as the beneficiary of the fund, over which he had the power of appointment. He did attempt to make the endow ment, subject to the payment of his debts, but that he had no'power to do, as has been already stated.
As the plaintiffs complaint should have been dismissed upon the merits, we express no opinion upon the question of the validity and regularity of his appointment.
Judgment reversed, new trial granted, with costs to abide the event.
Smith, P. J., and Hardin, J., concurred.Judgment reversed, and new trial ordered, before another referee, costs to abide event.