OptNioN by
Mr. Justice Sterrett:The benefit certificate issued by defendant to Mrs. ELitie E. Fisk was made payable “in the event of her death,” etc., to her husband, the plaintiff, subject to change at her pleasure, “on presentation of this certificate together with new application to the supreme secretary.”
Notwithstanding the fact that the certificate was delivered to plaintiff and the assessments thereon were paid by him, his wife had the right, on presenting it to the supreme secretary, to apply for and effect a change in designation of the beneficiary named therein. Having obtained possesssion of the certificate — in what manner does not appear — she surrendered it and obtained a new one, payable as follows: To her husband, Albert A. Fisk, $375; to her mother, Mary Fisk, $300; to her son, Freddie F. Fisk, $300, and to her sons, Jimmie and Truman Fisk, each $100, subject to change as provided in original certificates.
When plaintiff accepted the original certificate and paid the assessments thereon he knew or ought to have known that he held it subject to the right of his wife to change the designation of those to whom the insurance money should be paid upon her-death. There is no evidence that she ever waived that right, or in any manner estopped herself from exercising it. The second certificate became a substitute for the first; and hence the money is payable as therein designated, unless the surrender of the original and issue of the new certificate were irregular and invalid.
The learned judge’s construction of defendant’s by-laws, and his instructions relating to the regularity of the transaction, were substantially correct; and, in view of the facts which the jury must have found in reaching the conclusion they did, the validity of the second certificate cannot now be questioned. Indeed, the association defendant appears to have always recognized its validity as a substitute for the original; and, since the rendition of the verdict in this ease, it has paid into court, $1,-175, the full amount of the insurance, thus leaving the court to determine whether it shall be paid out as designated in the original, or as specified in the second certificate. The affirmance of this judgment virtually determines that, as one of the beneficiaries designated in the second certificate, plaintiff is entitled to *574$375, and no more, and tbat tbe other beneficiaries are entitled to the sums payable to each of them respectively according to the terms of same certificate.
It is unnecessary to notice either of the assignments of error specially. There is nothing in any of them that requires a reversal of the judgment.
Judgment affirmed.