Mr. Justice Magruder
delivered the opinion of the court:
The first endowment certificate No. 1087, which was issued to the deceased, Martin Delaney, by the High Court Independent Order of Foresters, was made payable to the appellant, Mary Delaney. She obtained and retained the possession of said certificate, and produced it after the death of Martin Delaney. Her contention is, that there was no surrender of the original endowment certificate No. 1087 issued to her, and. that the circuit court erred in so holding. The main question in the case, therefore, is whether the order had the right to issue a new certificate in the place of the one issued to the appellant under the circumstances developed by the evidence in this record.
It seems to be well settled by the weight of authority, both in this State and in other States, that the beneficiary in an endowment certificate, issued by a mutual benefit society, has no vested rights in the contract of mutual benefit insurance. The right of the beneficiary, named in the certificate of membership, to the benefit to accrue upon the death of the member is not such a right, as can be enforced until the death occurs. The contract of insurance is between the society and the member, to whom the certificate is issued, and not between the society and the beneficiary named in the certificate. If the beneficiary has no vested interest in the contract of insurance, it follows that during the life of the member to whom the certificate is issued, the latter may change the beneficiary, subject to such restrictions as are imposed by the statute, the charter, the by-laws, or the endowment certificate itself. Such right of the assured to change the beneficiary does not exist, as a general thing, in the case of an ordinary life insurance policy. The decisions in the text books are not altogether in accord as to the reasons, which exist, for the distinction in this regard between certificates issued by a mutual benefit society and ordinary life insurance policies. But whether there are any good reasons for the distinction or not, it is too well established by authority to be here controverted. (Martin v. Stubbings, 126 Ill. 387; Catholic Knights of America v. Franke, 137 id. 118; Benton v. Brotherhood of Railroad Brakemen, 146 id. 570; Voigt v. Kersten, 164 id. 314; Niblack on Benefit Societies and Accident Ins.—2d ed.— sec. 212, and cases in notes; Carpenter v. Knapp, 101 Iowa, 712, (70 N.W. Rep. 764;) Isgrigg, Exr. v. Schooley, 125 Ind. 94).
Inasmuch as the member, to whom the certificate is issued, has the power of changing the benéficiary, and appointing a new one at any time during his life, except so far as he is restricted by the organic law of the society, or by his contract with the society, it becomes necessary to inquire whether any restrictions upon the power of appointment existed in the present case.
We have been referred to no provision in the statute, under which the appellee, the High Court Independent Order of Foresters, was organized, or in its charter, or by-laws, which expressly authorizes a change in the beneficiary. It is well settled that, where the contract of mutual benefit insurance does not take away the power to change the beneficiary, the member has that right. (Niblack, id. sec. 212). Because of the right, which the member has to change the beneficiary during his lifetime, the only right, which the beneficiary has until the death of the member, is a mere expectancy. (Niblack, id. sec. 212; Martin v. Stubbings, supra). It will always be presumed, that the member has full right to change the beneficiary, or to control jthe benefit during his lifetime, until the contrary is made to appear. Where there is no provision in the statute, or in the charter or by-laws, or in the certificate of insurance itself, which expressly provides for a change of the beneficiary, or which prohibits such a change, the power to change the beneficiary is vested in the member during his lifetime by reason of the character and purposes of the benefit association itself. (Carpenter v. Knapp, supra).
The original certificate, No. 1087, issued to Mary Delaney, contains a promise on the part of the association, that it will pay the $1000.00 to her upon satisfactory evidence of the death of Martin Delaney, and “upon the surrender of this certificate provided that such member is in good standing in the order at the time of his death, and provided also that this certificate shall not have been surrendered by such member', and another certificate issued at his request in accordance with the laws of the order.” The certificate itself upon its face recognizes the right of Martin Delaney, the member, to have another certificate issued at his request in accordance with the laws of the order. The power of appointment, or the power to change the beneficiary, is thus embodied in the terms of the contract between the society and the mem- ■ ber in the present case. But it is contended on behalf of the appellant, that the right of the member, Martin Delaney, to change the beneficiary and the right of the association to issue a new certificate depended upon the surrender of the first certificate to the association. It is said, that, here, there was no surrender of certificate No. 1087 issued to Mrs. Delaney, but that she had such certificate in her possession. It is, therefore, argued that, inasmuch as there was no surrender of the original certificate, the association had no power to issue a new certificate, and that, thus, the contract of insurance itself upon its face contained a restriction upon the power of appointment, to-wit, the surrender of the existing certificate.
It would seem to follow, as a necessary corollary from the doctrine, that the certificate is a contract between the society and the member, and not between the member and the beneficiary, that the society and the member can modify or change their contract in anyway satisfactory to themselves. An expectancy, which is the only interest held by the beneficiary prior to the death of the member, is not property, and, therefore, a change of the contract made by the society and the member together could not injure or affect in any way a property interest of the beneficiary. It is true, that, by the terms of the certificate, the change-is to be made upon a surrender of the certificate; and that, when the mode of changing the beneficiary is specified in the contract, it must be substantially followed. (Niblack, id. sec. 218). But the parties to the contract may agree between themselves upon a change of the mode of appointing a new beneficiary. The provision, that a new certificate may be issued upon the-surrender of the old certificate, is a provision which is made for the benefit of the association, and may, therefore, be waived by the association. It has been held, that the material question is, whether the change of the beneficiary is made by the member with the consent of the society, and that, if it is so made, it is immaterial whether or not the requirements of the by-laws upon that subject have been complied with or not. (Niblack, id. sec. 215). “A member and the society may during the life of the member waive these requirements, and may agree upon a new beneficiary of the contract in any manner satisfactory to both parties.” (Niblack, id. sec. 222). “Although the rule is settled that change of beneficiary must be made in the manner prescribed by the laws of the society with some exceptions it is also now equally well settled that the society may waive compliance with the required formalities.” (1 Bacon on Benefit Societies and Life Ins. sec. 308; Splawn v.
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Mr. Justice Magruder
delivered the opinion of the court:
The first endowment certificate No. 1087, which was issued to the deceased, Martin Delaney, by the High Court Independent Order of Foresters, was made payable to the appellant, Mary Delaney. She obtained and retained the possession of said certificate, and produced it after the death of Martin Delaney. Her contention is, that there was no surrender of the original endowment certificate No. 1087 issued to her, and. that the circuit court erred in so holding. The main question in the case, therefore, is whether the order had the right to issue a new certificate in the place of the one issued to the appellant under the circumstances developed by the evidence in this record.
It seems to be well settled by the weight of authority, both in this State and in other States, that the beneficiary in an endowment certificate, issued by a mutual benefit society, has no vested rights in the contract of mutual benefit insurance. The right of the beneficiary, named in the certificate of membership, to the benefit to accrue upon the death of the member is not such a right, as can be enforced until the death occurs. The contract of insurance is between the society and the member, to whom the certificate is issued, and not between the society and the beneficiary named in the certificate. If the beneficiary has no vested interest in the contract of insurance, it follows that during the life of the member to whom the certificate is issued, the latter may change the beneficiary, subject to such restrictions as are imposed by the statute, the charter, the by-laws, or the endowment certificate itself. Such right of the assured to change the beneficiary does not exist, as a general thing, in the case of an ordinary life insurance policy. The decisions in the text books are not altogether in accord as to the reasons, which exist, for the distinction in this regard between certificates issued by a mutual benefit society and ordinary life insurance policies. But whether there are any good reasons for the distinction or not, it is too well established by authority to be here controverted. (Martin v. Stubbings, 126 Ill. 387; Catholic Knights of America v. Franke, 137 id. 118; Benton v. Brotherhood of Railroad Brakemen, 146 id. 570; Voigt v. Kersten, 164 id. 314; Niblack on Benefit Societies and Accident Ins.—2d ed.— sec. 212, and cases in notes; Carpenter v. Knapp, 101 Iowa, 712, (70 N.W. Rep. 764;) Isgrigg, Exr. v. Schooley, 125 Ind. 94).
Inasmuch as the member, to whom the certificate is issued, has the power of changing the benéficiary, and appointing a new one at any time during his life, except so far as he is restricted by the organic law of the society, or by his contract with the society, it becomes necessary to inquire whether any restrictions upon the power of appointment existed in the present case.
We have been referred to no provision in the statute, under which the appellee, the High Court Independent Order of Foresters, was organized, or in its charter, or by-laws, which expressly authorizes a change in the beneficiary. It is well settled that, where the contract of mutual benefit insurance does not take away the power to change the beneficiary, the member has that right. (Niblack, id. sec. 212). Because of the right, which the member has to change the beneficiary during his lifetime, the only right, which the beneficiary has until the death of the member, is a mere expectancy. (Niblack, id. sec. 212; Martin v. Stubbings, supra). It will always be presumed, that the member has full right to change the beneficiary, or to control jthe benefit during his lifetime, until the contrary is made to appear. Where there is no provision in the statute, or in the charter or by-laws, or in the certificate of insurance itself, which expressly provides for a change of the beneficiary, or which prohibits such a change, the power to change the beneficiary is vested in the member during his lifetime by reason of the character and purposes of the benefit association itself. (Carpenter v. Knapp, supra).
The original certificate, No. 1087, issued to Mary Delaney, contains a promise on the part of the association, that it will pay the $1000.00 to her upon satisfactory evidence of the death of Martin Delaney, and “upon the surrender of this certificate provided that such member is in good standing in the order at the time of his death, and provided also that this certificate shall not have been surrendered by such member', and another certificate issued at his request in accordance with the laws of the order.” The certificate itself upon its face recognizes the right of Martin Delaney, the member, to have another certificate issued at his request in accordance with the laws of the order. The power of appointment, or the power to change the beneficiary, is thus embodied in the terms of the contract between the society and the mem- ■ ber in the present case. But it is contended on behalf of the appellant, that the right of the member, Martin Delaney, to change the beneficiary and the right of the association to issue a new certificate depended upon the surrender of the first certificate to the association. It is said, that, here, there was no surrender of certificate No. 1087 issued to Mrs. Delaney, but that she had such certificate in her possession. It is, therefore, argued that, inasmuch as there was no surrender of the original certificate, the association had no power to issue a new certificate, and that, thus, the contract of insurance itself upon its face contained a restriction upon the power of appointment, to-wit, the surrender of the existing certificate.
It would seem to follow, as a necessary corollary from the doctrine, that the certificate is a contract between the society and the member, and not between the member and the beneficiary, that the society and the member can modify or change their contract in anyway satisfactory to themselves. An expectancy, which is the only interest held by the beneficiary prior to the death of the member, is not property, and, therefore, a change of the contract made by the society and the member together could not injure or affect in any way a property interest of the beneficiary. It is true, that, by the terms of the certificate, the change-is to be made upon a surrender of the certificate; and that, when the mode of changing the beneficiary is specified in the contract, it must be substantially followed. (Niblack, id. sec. 218). But the parties to the contract may agree between themselves upon a change of the mode of appointing a new beneficiary. The provision, that a new certificate may be issued upon the-surrender of the old certificate, is a provision which is made for the benefit of the association, and may, therefore, be waived by the association. It has been held, that the material question is, whether the change of the beneficiary is made by the member with the consent of the society, and that, if it is so made, it is immaterial whether or not the requirements of the by-laws upon that subject have been complied with or not. (Niblack, id. sec. 215). “A member and the society may during the life of the member waive these requirements, and may agree upon a new beneficiary of the contract in any manner satisfactory to both parties.” (Niblack, id. sec. 222). “Although the rule is settled that change of beneficiary must be made in the manner prescribed by the laws of the society with some exceptions it is also now equally well settled that the society may waive compliance with the required formalities.” (1 Bacon on Benefit Societies and Life Ins. sec. 308; Splawn v. Chew, 60 Tex. 532; Martin v. Stubbins, supra; National Mutual Aid Society v. Lupold, 101 Pa. St. 111).
In the case at bar, the evidence shows, that the association had been in the habit of granting a new certificate at the request of the member and therein changing the beneficiary without a surrender of the old certificate, provided the member should make an affidavit that the original certificate was lost or destroyed or stolen. Here, Martin Delaney made an affidavit that certificate No. 1087 was lost, destroyed or stolen. It turned out, after his death, that the certificate was in the possession of his wife, Mary Delaney, at the time when he made such affidavit.' There is some conflict in the testimony as to the circumstances in regard to the disappearance of the certificate. The testimony on the .part of the appellant tends to show, that Martin Delaney gave her the certificate, and requested her to keep it. Other testimony is to the effect, that she abandoned him in "the fall of 1886, leaving his home, and that he was obliged to obtain support through others; and that, upon his demand, she refused to give up the certificate. It is not clear, however, from other portions of the evidence, that he knew where the certificate was, or whether she had destroyed it, or still kept it. The circuit court found in favor of the contention of the appellees upon this subject, and we are not disposed to disturb the finding of the circuit court upon such a question of fact. Where the chancellor sees and hears the witnesses, his findings upon mere questions of fact, when the testimony is conflicting, will not be disturbed on appeal, unless they are clearly and manifestly against the preponderance of the evidence. (Burgett v. Osborne, 172 Ill. 227). Such is not the case here.
It is well settled that, even if the certificate, issued by a mutual benefit society, is given to the beneficiary therein, such beneficiary holds it subject to the right of the member, to whom it was issued, to change the beneficiary. The beneficiary always takes the certificate, subject to such right of change in the member during his lifetime. If Mrs. Delaney purposely withheld this certificate when it was demanded of her, inasmuch as the law presumes her knowledge of the right of her husband to change the beneficiary, she was g'uilty of a wrong towards her husband, and cannot now take advantage of her own wrong.
Not only was there an affidavit as to the loss of the original certificate No. 1087, but, by agreement between Martin Delaney and the association, a new certificate, No. 12,725, was issued to the Mercy Hospital. The purpose of taking up the old certificate, and issuing this new one, was to obtain from the Mercy Hospital for Martin Delaney board, lodging and clothing; and Mrs. Delaney knew of the issuance of the new certificate, and for what, purpose it was issued. Subsequently, when the Mercy Hospital declined further to support Martin Delaney, certificate No. 12,725 was taken up, and a new certificate No. 18,770 was issued to Daniel Delaney to enable him to obtain support for Martin Delaney from the Little Sisters of the Poor upon the conditions and in the manner set forth in the statement preceding this opinion. There is conflict in the testimony as to the cause of the separation between Martin Delaney and his wife in 1886, she claiming that such separation was due to his fault, but other testimony in the case shows that it was not his fault. Whatever may have been the cause of such separation, it is certain that, during the last six years of his life, he was supported at the Mercy Hospital, and at the institu- . tion, known as the Little Sisters of the Poor, through the efforts of Daniel Delaney, and by means of the insurance money, which was expected to be paid upon said certificate when the time of his death should arrive.
It thus appears, that the original contract between the parties, evidenced by certificate No. 1087, was abandoned by both parties to it, to-wit, the member and the society, before the death of Martin Delaney. “It is difficult to see what rights remain to the beneficiary under it. * * * The member and the society are the parties to a contract of mutual benefit insurance, and they may, during the life of the member, agree to a change of the beneficiary in any manner which is satisfactory to both parties. When they have agreed to a change of the beneficiary, a new contract is in force, and, to the extent of the modification made, the old contract is abandoned and superseded. * * * When a society has actually changed the beneficiary at the request of the member, all questions as to whether the manner and mode of changing the beneficiaries provided in the contract have been followed, are concluded and absolutely disposed of.” (Niblack, id. sec. 219; Titsworth v. Titsworth, 40 Kan. 571; Barton v. Association, 63 N. H. 535; Gladding v. Gladding, 8 N. Y. Supp. 880; Lamont v. Hotel Men's Mutual Ben. Ass. 30 Fed. Rep. 817; Simcoke v. Grand Lodge, 84 Iowa, 383; Bowman v. Moore, 87 Cal. 306).
It has been held in a number of cases that the mere withholding of a certificate by a beneficiary does not defeat the right of a member to change the beneficiary.
In Isgrigg v. Schooley, supra, Schooley was the holder of a beneficiary certificate in a mutual benefit sdciety; the by-laws of the order provided that when a member decided to change a beneficiary named in a certificate he must, among other things, surrender the old certificate; the beneficiary originally named had been the wife of the deceased; she abandoned him, however, and refused to live with him and, without his consent, took the certificate away with her and, upon a demand for its return, she stated that it was lost; the deceased, being desirous of changing the beneficiary, complied with all the requirements of the by-laws in respect thereto save the surrender of the certificate, assigning its alleged loss as the reason for his failure to do so; and it was there held, that the right of the assured to make a change in the beneficiary existed as soon as the certificate was issued; that it was his duty, while it was within his power to do so, to follow the mode provided in the by-laws in making the change, but that, whenever a state of circumstances existed which deprived him of the power to literally comply with the conditions of the by-laws, he was relieved from a literal compliance therewith, but was not divested of the right to make a change; and it was further held, that the acts of the decedent constituted an equitable change of beneficiary, and that a person, in whose favor the deceased desired anew certificate to be issued, was entitled to the fund; and that, as he had done all in his power toward complying with the by-laws in making the change and had been prevented by his wife from formal compliance, she could not after his death set up her own wrongful act to prevent a recovery for the benefit of the new beneficiary. (Grand Lodge v. Child, 70 Mich. 163; Hirschl v. Clark, 81 Iowa, 200; Schmidt v. Iowa Knights of Pythias Ins. Ass. 82 id. 304; Carpenter v. Knapp, supra; 1 Bacon, id. secs. 308, 310; Masonic Ben. Ass. v. Bunch, 109 Mo. 560).
It is contended, however, that Daniel Delaney does not come within the class of persons, for whose benefit the charter of the association in this case authorizes benefit certificates to be issued, and that, therefore, he was not a legal beneficiary, and is not entitled to the fund in dispute. The act of March 28, 1874, under which the present association was organized, provides as follows t “Associations and societies, which are intended to benefit widows, orphans, heirs and devisees of deceased members thereof, and where no annual dues and premiums are required, and where the member shall receive no money as provided or otherwise, shall not be deemed insurance companies.” The same class as those mentioned in the statute are also mentioned in the charter and by-laws of the association. It is said, that Daniel Delaney is neither an heir, nor devisee of the deceased Martin Delaney. If this were an original question, it would demand serious consideration.
But this court has held that the statute, by empowering a member to name as his beneficiary his legatee or devisee without restriction, proceeds upon a policy much broader than do those statutes, which limit the benefits to accrue upon the death of the member to his relatives, or those in some way dependent upon him; that, under the name of legatee or devisee, a member is given the power to appoint, as his beneficiary, any person, whether related to him, or not related to him at all; that he may in the selection of his beneficiary be governed by circumstances of affection or duty, or he may yield to the dictates of mere caprice, subject only to the limitation that the appointment be made by will; and that the legislature, having thus enlarged the category of those capable of being selected as beneficiaries so as to include all persons whom the member may select as his legatees or devisees, there is no rule of public policy which would be violated by the adoption of a different mode of selecting a beneficiary; that no substantial rights of any party are better secured or promoted by one mode of appointment than another; that the mode of selection is a mere matter of form and does not go to the substance of the right to select beneficiaries, and that the assignment of a certificate by a member in his lifetime to a creditor, as security for a debt, was, under the contract, valid and binding upon both the beneficiary and the society. (Martin v. Stubbings, supra). So, also, in Bloomington Mutual Benefit Ass. v. Blue, 120 Ill. 121, it was held that, as a member might under the charter in that case devise the benefits of his policy to a stranger, so he might in the first instance take out a policy payable to a stranger. In the latter case, the charter was construed as not only authorizing a member to name a devisee other than one of his heirs, but we went further and decided that, as he might so devise it to a stranger, so he might take out the certificate in the first instance payable to one, who had no insurable interest in his life. (Massachusetts Ben. Ass. v. Bunch, supra; Niblack, id. secs. 166, 173, 212-214; Lamont v. Hotel Men’s Mutual Ben. Ass. supra).
In view of what has been said, it is immaterial whether Daniel Delaney was or was not related to Martin Delaney. The rights of appellee, Daniel Delaney, are to be determined by the language of the act of March 28, 1874, and of the constitution and by-laws of the society passed in pursuance thereof. The proof showed, and the circuit court found, that Martin Delaney was indebted to Daniel Delaney at the time of his death. Inasmuch as Daniel Delaney was a creditor of Martin Delaney, the doctrine of the case of Martin v. Stubbings, supra, was precisely applicable. There was not here an assignment of the certificate to Daniel Delaney, but the appointment of him as beneficiary in a new certificate had the same effect as though there had been such assignment. (Niblack, id. sec. 186, note 3). The rights of the appellee, Daniel Delaney, are not impaired by the act of June 22, 1893, in relation to fraternal benefit societies. (2 Starr & Cur. Ann. Stat.—2d ed.—p. 2278; Voigt v. Kersten, supra).
The judgment of the Appellate Court, affirming the decree of the circuit court, is affirmed.
Judgment affirmed.