dissenting:
I have no criticisms to make as to the statements of fact in the majority opinion, but I cannot agree with the legal conclusions therein.
It is agreed on all hands that Greco had a lawful wife in Italy, Maria Veltri, and that she is still living. Therefore, his marriage in this country in 1892 to Maria D’Angelo, the appellant, was illegal, but it is also agreed that the appellant acted in entire good faith supposing that she was the lawful wife of Greco and that her two children, the fruits of her union with him, were legitimate. Upon the conceded facts there can be no doubt that Greco was under a moral obligation to provide for the appellant and her and his children. In 1894, Greco made application and was received into membership in the relief department of the Baltimore and Ohio Railroad Company, by signing an application for full membership, which was accepted in due form by the company. The important parts of the written contract between Greco and the *407company are correctly quoted in the majority opinion. The application of Greco was “for the purpose of securing the benefits provided by said regulations, for a member of Class A to myself, or in the event of my death, to my wife, Maria D’Angelo, or to whomever I may hereafter from time to time designate in writing by way of substitution, with the written consent of the superintendent; or, if no such beneficiary be then living, to my next of kin (as determined by the laws of the state of Maryland), in accordance with Regulation No. 18 — ■ subject to all the provisions and requirements of said regulations.
“I expressly stipulate that my marriage shall ipso facto have the effect to substitute my wife in the place and stead of the beneficiary named above to receive said benefits in the event of my death, if she be then living, except as to children by a former marriage who may be named as beneficiaries, and in that event my said wife shall have one-half of said benefits.”
Greco continued to live with Maria D’Angelo, as her husband, until 1905, when he was accidentally killed while he was still in the employ of the company. The contract between Greco and the Baltimore and Ohio Railroad Company for benefits was in full force afc the time of his death. Upon the above-conceded facts, Maria Veltri and Maria D’Angelo both claimed the benefit fund, amounting to about $500. It will be noted that by the plain terms of the contract this fund was designated and intended by Greco for Maria D’Angelo. Thé Baltimore and Ohio Railroad Company filed the bill in the present case for an interpleader, naming Maria Veltri and Maria D’Angelo as defendants, and asked and obtained leave of court- to pay the entire fund, less certain costs, into court, and that upon such payment into court, the plaintiff be discharged of all liability to the defendants, Maria Veltri and Maria D’Angelo, in respect of the money so claimed by them. And that an injunction be issued to restrain said defendants, their counsel, solicitors, agents and attorneys, from commencing or prosecuting any further or other action or suit against the plaintiff for or in respect of the said sum of money. The Baltimore and Ohio Railroad Company procured *408from the court the decree above prayed for, and paid the money into court and withdrew from the controversy. Subsequently the court awarded the fund to Maria Veltri and it is from that decree that this appeal was taken by Maria D’Angelo.
It is conceded on all hands, that if the Baltimore and Ohio Railroad Company had been sued for the benefits and had interposed the false and fraudulent representation of Greco, that Maria D’Angelo was his wife, as a defense, there could have been no recovery because the fraud rendered the contract voidable. I consider it perfectly clear, under the authorities, that neither of these women could have recovered on that contract, if the company relied on the fraud and refused to waive its right to defend. By paying the money into court, however, it seems that the authorities in this state, as well as in many of the sister states, hold that the company waived such defense and that it could not be raised by any other person. In effect, the company, by its action, said to the court, Decree this mbney to the one of these women who is legally entitled to it. As was said by the Supreme Court in Penna. R. R. Co. v. Wolfe, 203 Pa. 269 (see p. 275): “But the relief association wholly withdraws from this contest; it pays the money into court, and in effect says, Wage your war between yourselves, I will have nothing to do with it; so that all the authorities cited on either, side, as to the rights of the claimant against the association, are wholly outside this case.”
The application designated Maria D’Angelo as beneficiary. There is absolutely no provision that in case the named beneficiary is living but is not eligible, that the benefits are to be paid to some other person or perso.ns. It therefore follows that the designated beneficiary, Maria D’Angelo, being alive, must take, or the benefits lapse. Maria Veltri, the lawful wife, has no standing to question their disposition. Smith v. Baltimore & Ohio Railroad Company, 81 Md. 412, was a similar case and in it a similar application and the regulations of the relief department of the Baltimore and Ohio Railroad Company were before the court for construction. The insured ■ had been divorced from his wife. He designated as his benefi*409ciary a certain woman, naming her, and describing her as “my wife.” The woman designated was not the lawful wife of the insured, though they had been living together as husband and wife. On the death of the insured, the named beneficiary being alive, a son of the divorced wife sought to recover as next of kin. Held, that the plaintiff (the son) was not entitled to recover, because the false statement in the application avoided the contract, and also because the plaintiff, not being named as beneficiary, could not maintain the action. The present application provides that the contract is to be construed according to the laws of the state of Maryland. The above case decides that no person other than the named beneficiary, if alive, can claim benefits payable under an application of. the relief department of the Baltimore and Ohio Railroad Company, even if the named beneficiary is debarred. The effect of that decision is that Maria Yeltri has no standing to dispute the claim of Maria D’Angelo, the named beneficiary.
In Taylor v. Hair, 112 Fed. Repr. 913, the court said: “The order may dispose of it (the fund), in accordance with the law óf distribution or otherwise, by a designation of beneficiaries in the constitution of the order; but it can only do this when ..the.application does not show any named beneficiary, and when it directs the benefit to be made payable to the beneficiary designated in such constitution. It is argued that when a person not qualified to take is named as beneficiary, there is, .in legal effect, no person designated. If so, the benefit cannot .go to any beneficiary designated in the constitution of the order without a direction in the application requiring it, and •the benefit must fail.”
Maria D’Angelo is the beneficiary named in the application, and on the death of the insured her right became vested and she is the only person who has standing to claim these benefits. But as between Maria D’Angelo and the railroad company, her right is defeasible on two grounds: 1. Because of .the fraudulent statement of the insured in his application that Maria D’Angelo was his wife. But this fraud only renders the contract voidable at the option of the company: Smith v. B. & O. R. R. Co., 81 Md. 412. But I will cite authorities later *410showing that the company by paying the money into court waived its right in this respect. 2. Because Regulation 18 provides that if the applicant is married, he must name his wife, or his wife and children, unless the superintendent waives this requirement for reasons satisfactory to him; and that no one shall be entitled as the beneficiary of a member who is not the widow or a relation who is not more remote than a first cousin. This rendered the claim of Maria D’Angelo defeasible if it had not been waived by the company.
It should here be noted that in Smith v. B. & O. R. R. Co., 81 Md. 412, and Taylor v. Hair, 112 Fed. Repr. 913, the defense was not waived, but was insisted upon.
A provision in the by-laws of a beneficial association restricting the designation of a beneficiary to a certain person or class of persons, is inserted for the benefit or protection of the association and can be waived by it. The noncompliance with such a provision in the by-laws is a question that can be raised only by the association, and in any event a mere stranger, such as Maria Yeltri, the other claimant, who is not a member of the association or a party to the contract, cannot raise this objection: 3 Am. & Eng. Ency. of Law (2d ed.), p. 960; Taylor v. Hair, 112 Fed. Repr. 913; Alfsen v. Crouch, 89 S. W. Repr. 329; Supreme Tent v. M’Allister et al., 132 Mich. 69; Schoales v. Order of Sparta, 206 Pa. 11; Maguire v. Council, 59 N. Y. App. Div. 143; Knights of Honor v. Watson, 64 N. H. 517; Johnson v. Knights, 53 Ark. 255; Titsworth v. Titsworth, 40 Kan. 571; Markey v. The Council, 74 N. Y. Supp. 1069; Tepper v. Royal Arcanum, 61 N. J. Eq. 638.
An examination of the above cases will show that where the named beneficiary was not within the class prescribed by the by-laws, the right of the association to pay such beneficiary cannot be questioned by persons who have no certificate and who come into court without any basis for any claim whatever. The cases also hold that such defense can only be interposed by the company and that by paying the money into court the company waived its right to avoid the contract of insurance and defeat the claim of the named beneficiary. I think the following Pennsylvania decisions establish the *411same principles: Schoales v. Order of Sparta, 206 Pa. 11; Pennsylvania Railroad Co. v. Wolfe, 203 Pa. 269; King v. Beneficial Assn., 216 Pa. 553; White v. Turner, 217 Pa. 25; Barner v. Lyter, 31 Pa. Superior Ct. 435.
But it is contended that the clause in the application above quoted, “I expressly stipulate that my marriage shall ipso facto have the effect to substitute my wife in the place of the beneficiary named above to receive said benefits in the event of my death, if she be then living,” defeats the right of Maria D’Angelo to recover the benefits in this case. I cannot agree with this contention because I think this clause of the application is meant to operate only prospectively, that is, in case of a lawful marriage subsequent to the date of the insurance contract. I discover nothing in the language of this clause indicating that it was to operate retrospectively. I think it was intended to cover cases where the insured was not married at the time of the execution of the contract and where he named, say, his mother or sister or someone else as his beneficiary, and thereafter entered into a marriage contract. In such case, this rule would substitute the wife for the beneficiary named in the contract. Even statutes are never given a retrospective operation unless the language is so clear as to preclude all question as to the intention of the legislature that they should operate retrospectively: Calder v. Bull, 3 Dallas, 386; Taylor v. Mitchell, 57 Pa. 209; Sproul v. Standard Plate Glass Co., 201 Pa. 103; Com. v. Danville Bessemer Co., 207 Pa. 302; White v. Crawford, 84 Pa. 433.
Since the courts have been so careful to prevent statutes from having retrospective force, except in clear cases where the language admits of no other construction, I am not in doubt about the clause in the insurance application, above quoted, having reference only to a future marriage. The application entitles Maria D’Angelo to the fund. If the application and it alone controls the rights in this case, the company having waived its defense, it seems clear, to me, that the words, “my wife, Maria D’Angelo,” can mean only the appellant, Maria D’Angelo. The description “my wife” does not require that the person named answer to this superfluous description: *412Jones’s Est., 211 Pa. 364; Brown v. A. O. U. W., 208 Pa. 101; Overbeck v. Overbeck, 155 Pa. 5.
Upon the admitted facts in the present case, the company-having paid the money into court and declined to interpose a defense on the ground of the fraud practiced upon it by Greco, the insurance being clearly provided by the contract for Maria D’Angelo, I am of the opinion that as a pure question of law, the learned court erred in decreeing the money to Maria Veltri and refusing to decree it to.the appellant, and I would, therefore, reverse the decree and direct that the legal costs be paid out of the fund and that the residue of the fund be paid to Maria D’Angelo.
Rice, P. J., concurs in the dissent.