EgglestoN, S.
— In an action formerly brought in the Supreme Court of the State of New York, in which action William Esmay and Mary Esmay, as administrators with the will annexed of Martha Copeland, deceased, were plaintiffs, and the Supreme Council of Eoyal Templars of Temperance and others were defendants, the issues having been duly tried at a Special Term of the Supreme Court, held in the county 'of Cortland, the findings of fact and conclusions of law have [592]*592been determined by that court, which findings of fact and conclusions of law are conceded to be the findings of fact and conclusions of law applicable upon this hearing, there is left for determination at this time the one question as to the disposition of the fund derived upon a certificate of membership issued by the Supreme Council of Eoyal Templars of Temperance to Martha Copeland, the court in that action having rendered a judgment in favor of the administrators and against the defendant insurance company for the amount of money payable under the certificate, together with costs.
Upon the one side it is claimed that this money belongs to the administrators of the estate of the deceased and should be used in the payment of her debts. Upon the other side it is elapned that the money belongs to the heirs and next of kin of the deceased and that the creditors are not entitled to said fund or any part of the same.
The Supreme Council of Eoyal Templars of Temperance is a domestic corporation, duly incorporated under the laws of this State, and is a fraternal mutual benefit insurance association or company, having its principal place of business at Buffalo, New York, having as one of its objects the aiding and assisting its members and their families in eases, of want, sickness, or death, and for that purpose it was authorized to establish local or select councils in different localities, make by-laws, rules, and regulations necessary to provide for the collection of the beneficiary fund, out of which not to exceed $5,000 on the death of any one person, could be paid under the rules and regulations made, and to fix the amounts of assessments, fees, and dues, and to collect the same for the payment of its expenses, support and benefits-.
This corporation duly adopted a constitution, by-laws, rules and regulations, and by section 11 of the beneficiary by-laws of the corporation it was provided, “ That in the event of the death of all the beneficiaries designated by the member before [593]*593the decease of sueb member, if be shall make no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and if no person or persons shall be entitled to receive, such benefit by the laws of this order it shall revert to the beneficiary fund.”
By section 24 of the beneficiary by-laws of the corporation it was provided, “ That a member may at any time, when in good standing, surrended his benefit certificate, and a new certificate shall thereafter be issued payable to such beneficiary or beneficiaries as he may direct, upon the payment of a certificate fee of twenty-five cents. Such a surrender and direction must be in writing upon a blank provided for that purpose, signed by the member and forwarded under the seal of the Select Council with the benefit certificate to the Supreme Secretary.”
On the 31st day of October, 1882, this corporation duly made, issued and delivered to Martha Copeland, the testatrix, pursuant to law and its constitution and by-laws, its certificate known as “ Ladies’ Mutual Aid Certificate, Number 9048, Class E.” whereby she was declared a beneficiary member of the corporation, and entitled to all the rights and privileges guaranteed to contributing life members by the constitution and bylaws, upon the consideration that she conform to the same and the rules and regulations of the order, and that in case of her death, while in good standing, the beneficiary named by her should be entitled to the amount of the assessment of all members of the same class of fifty cents each, not to exceed in all $1,000.
By the issue of this certificate the testatrix became a member of the order, and in that certificate was named and designated as the beneficiary her husband, George W. Copeland.
At this time she resided with her husband in the town of Marathon, Cortland county, in which town was a local council, established in accordance with the constitution and by-laws of the corporation.
[594]*594Prior to the death of Mrs. Copeland and on the 27th day of May, 1895, her husband, the beneficiary named in the certificate, died at Marathon, N. Y.
On the 28th day of May, 1898, the testatrix duly executed in writing, upon a blank provided for that purpose by the corporation, a surrender of the certificate, and directed the same to be paid to her estate, and delivered the certificate with the surrender and direction written thereon to William Dellow, who was at that time the secretary of the local or select council,, known as Rescue Council, Number 50, New York, to be forwarded by him to the supreme secretary of the corporation, in accordance with its rules and by-laws, and Mr. Dellow on the same day did, in accordance with the rules and by-laws of the-corporation, forward the same to E. R. Rew, the supreme secretary of the corporation, who duly received the same and acknowledged the receipt of it by letter.
A few days thereafter the supreme secretary of the corporation 'acknowledged the receipt of the letter, stating, however, that the order was not allowed, under insurance laws of several States, to write certificates in that way, and that it was necessary that they have the full Christian name of each of the beneficiaries in order that drafts might be drawn in the event of death, and inclosed another blank form- to have filled out,, giving the full Christian names of those to whom Mrs. Copeland desired to have the amount made payable.
On the following day and before Mr. Dellow received the answering letter from the supreme secretary, Mrs. Copeland died,, being at that time, and having been ever since the issuing of the certificate to her, a member of the order in good standing, having faithfully maintained -all pledges and agreements on her part, and in all things complied with the rules, laws, and regulations of the order, and paid all assessments, dues and moneys required of her by the corporation and by its rules and bylaws up to the time of her death.
[595]*595By tbe judgment of tbe Supreme Court it bas been found that tbis money should be paid by tbe order to tbe administrators of tbe estate, and no exception bas been taken to tbe facts as found, nor to tbe conclusions of law.
One fact tbat should be noted here is that at tbe time of her ' death Mrs. Copeland lived alone, her husband bad died several years previous to her death, and there were no descendants and no persons dependent upon her for maintenance or support.
She bad one sister residing, in tbe county, and other persons more distantly related to her residing some distance from her home, but it does not appear tbat any of these persons were in any way dependent upon her for their support, or tbat there were any intimate family relations existing between them. Surely they were not in any way objects of her bounty.
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EgglestoN, S.
— In an action formerly brought in the Supreme Court of the State of New York, in which action William Esmay and Mary Esmay, as administrators with the will annexed of Martha Copeland, deceased, were plaintiffs, and the Supreme Council of Eoyal Templars of Temperance and others were defendants, the issues having been duly tried at a Special Term of the Supreme Court, held in the county 'of Cortland, the findings of fact and conclusions of law have [592]*592been determined by that court, which findings of fact and conclusions of law are conceded to be the findings of fact and conclusions of law applicable upon this hearing, there is left for determination at this time the one question as to the disposition of the fund derived upon a certificate of membership issued by the Supreme Council of Eoyal Templars of Temperance to Martha Copeland, the court in that action having rendered a judgment in favor of the administrators and against the defendant insurance company for the amount of money payable under the certificate, together with costs.
Upon the one side it is claimed that this money belongs to the administrators of the estate of the deceased and should be used in the payment of her debts. Upon the other side it is elapned that the money belongs to the heirs and next of kin of the deceased and that the creditors are not entitled to said fund or any part of the same.
The Supreme Council of Eoyal Templars of Temperance is a domestic corporation, duly incorporated under the laws of this State, and is a fraternal mutual benefit insurance association or company, having its principal place of business at Buffalo, New York, having as one of its objects the aiding and assisting its members and their families in eases, of want, sickness, or death, and for that purpose it was authorized to establish local or select councils in different localities, make by-laws, rules, and regulations necessary to provide for the collection of the beneficiary fund, out of which not to exceed $5,000 on the death of any one person, could be paid under the rules and regulations made, and to fix the amounts of assessments, fees, and dues, and to collect the same for the payment of its expenses, support and benefits-.
This corporation duly adopted a constitution, by-laws, rules and regulations, and by section 11 of the beneficiary by-laws of the corporation it was provided, “ That in the event of the death of all the beneficiaries designated by the member before [593]*593the decease of sueb member, if be shall make no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and if no person or persons shall be entitled to receive, such benefit by the laws of this order it shall revert to the beneficiary fund.”
By section 24 of the beneficiary by-laws of the corporation it was provided, “ That a member may at any time, when in good standing, surrended his benefit certificate, and a new certificate shall thereafter be issued payable to such beneficiary or beneficiaries as he may direct, upon the payment of a certificate fee of twenty-five cents. Such a surrender and direction must be in writing upon a blank provided for that purpose, signed by the member and forwarded under the seal of the Select Council with the benefit certificate to the Supreme Secretary.”
On the 31st day of October, 1882, this corporation duly made, issued and delivered to Martha Copeland, the testatrix, pursuant to law and its constitution and by-laws, its certificate known as “ Ladies’ Mutual Aid Certificate, Number 9048, Class E.” whereby she was declared a beneficiary member of the corporation, and entitled to all the rights and privileges guaranteed to contributing life members by the constitution and bylaws, upon the consideration that she conform to the same and the rules and regulations of the order, and that in case of her death, while in good standing, the beneficiary named by her should be entitled to the amount of the assessment of all members of the same class of fifty cents each, not to exceed in all $1,000.
By the issue of this certificate the testatrix became a member of the order, and in that certificate was named and designated as the beneficiary her husband, George W. Copeland.
At this time she resided with her husband in the town of Marathon, Cortland county, in which town was a local council, established in accordance with the constitution and by-laws of the corporation.
[594]*594Prior to the death of Mrs. Copeland and on the 27th day of May, 1895, her husband, the beneficiary named in the certificate, died at Marathon, N. Y.
On the 28th day of May, 1898, the testatrix duly executed in writing, upon a blank provided for that purpose by the corporation, a surrender of the certificate, and directed the same to be paid to her estate, and delivered the certificate with the surrender and direction written thereon to William Dellow, who was at that time the secretary of the local or select council,, known as Rescue Council, Number 50, New York, to be forwarded by him to the supreme secretary of the corporation, in accordance with its rules and by-laws, and Mr. Dellow on the same day did, in accordance with the rules and by-laws of the-corporation, forward the same to E. R. Rew, the supreme secretary of the corporation, who duly received the same and acknowledged the receipt of it by letter.
A few days thereafter the supreme secretary of the corporation 'acknowledged the receipt of the letter, stating, however, that the order was not allowed, under insurance laws of several States, to write certificates in that way, and that it was necessary that they have the full Christian name of each of the beneficiaries in order that drafts might be drawn in the event of death, and inclosed another blank form- to have filled out,, giving the full Christian names of those to whom Mrs. Copeland desired to have the amount made payable.
On the following day and before Mr. Dellow received the answering letter from the supreme secretary, Mrs. Copeland died,, being at that time, and having been ever since the issuing of the certificate to her, a member of the order in good standing, having faithfully maintained -all pledges and agreements on her part, and in all things complied with the rules, laws, and regulations of the order, and paid all assessments, dues and moneys required of her by the corporation and by its rules and bylaws up to the time of her death.
[595]*595By tbe judgment of tbe Supreme Court it bas been found that tbis money should be paid by tbe order to tbe administrators of tbe estate, and no exception bas been taken to tbe facts as found, nor to tbe conclusions of law.
One fact tbat should be noted here is that at tbe time of her ' death Mrs. Copeland lived alone, her husband bad died several years previous to her death, and there were no descendants and no persons dependent upon her for maintenance or support.
She bad one sister residing, in tbe county, and other persons more distantly related to her residing some distance from her home, but it does not appear tbat any of these persons were in any way dependent upon her for their support, or tbat there were any intimate family relations existing between them. Surely they were not in any way objects of her bounty.
Formerly tbe husband bad been tbe beneficiary named by her in tbe certificate, but after bis death, believing that no one would have a greater claim upon her estate than her creditors, she sought to- provide for the payment of her debts.
At tbe time of her death she was insolvent, and even with tbis fund, it was conceded tbat there are not sufficient assets with which to pay her indebtedness.
Some considerable portion of tbis indebtedness was created in order tbat she might herself be comfortable during her lifetime, for services of some who bad been kind to her and assisted her in different ways, so that equitably this money should be used to pay the indebtedness due from her estate, unless some stern or inflexible rule of law is interposed preventing tbe use of tbis fund in this way.
It is very clear tbat Mrs. Copeland fully understood tbe situation and appreciated tbe same, as she was endeavoring just prior to bqr death to have it arranged so tbat tbis money should go to pay those persons to whom she was justly indebted and who bad some claims upon her for services performed and for [596]*596the things furnished to make her comfortable during her lifetime.
Really, in comparing the rights of the creditors upon the one hand and the heirs upon the other, the rights of the heirs to the fund in question sink into insignificance, while the rights of the creditors are equitably asserted.
' In January the testatrix made her last will and testament, and as the will was made subsequent to the death of her husband, she provided in her will as follows: “At my death there will be one thousand dollars life insurance from the Royal Templars. Out of this I want all my debts of whatever nature paid. There are notes against me that must be paid. I do not want any one to lose anything by me.”
Thus it will be seen that Mrs. Copeland had an express intention, after the death of her husband, of having this fund used for the payment of any debts which might be owing by her upon her decease, and the court has found, as a conclusion of law, that by surrendering the benefit certificate and directing to whom the new certificate should be paid in the manner and form required by the by-laws of the corporation, and by forwarding the same with the benefit certificate to the supreme secretary, she did all that was required of her to make a valid change of beneficiary, and the fact that the corporation did not then perform the duty which devolved upon it, to issue a new certificate, was no bar to a recovery in the action by the administrators against the order for the money due under the membership' certificate.
By reference to section three of the act incorporating the insurance company, Laws of 1880, chapter 586, it is stated that the benefit to be derived under the certificate of insurance is to aid the member and her family. Its first purpose is to aid a member.
By section ten of the beneficiary law of the order it is provided, “ In the event of death of one or more of the beneficiaries [597]*597designated by tbe member before the decease of such member, if he shall give no further direction for the disposal of the benefit, at his death it shall be paid in full to the husband, wife and children of such deceased beneficiary or beneficiaries pro rata. In case such deceased beneficiary or beneficiaries should leave no husband, wife or children, such benefit shall be paid in full to the surviving beneficiary or beneficiaries, each sharing pro rata as provided in the benefit certificate.”
By section 11 it is provided, “ In the event of the death of all the beneficiaries designated by the member before the decease of such member, if he shall make no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and 'if no person or persons shall be entitled to receive such benefit, it shall revert to the beneficiary fund.”
The husband, the first named beneficiary, was dead. He had been designated by the member as the beneficiary.
Before the decease of the member she did make another disposition of the fund.
She did it in her will. She did it by signing the blank and forwarding it through the local council to the supreme secretary of the order. The court has found, as a matter of law, that by the act of the defendant she did all that was required of her to make a valid change of the beneficiary. She made the persons to whom she was indebted the beneficiaries, and the order could not arbitrarily, under the circumstances, insist that because of the f act that she did not state the names of those persons that the fund could not be paid to them through the legal representatives of her estate.
If this were so it would not be an insurance in aid of the. member, and would be repugnant to section three of the act of incorporation.
While it is undoubtedly true, as is urged by the counsel for the heirs, that this fund.is exempt from.the payment of debts, from seizure under execution, or other legal process for .the [598]*598benefit of creditors, yet where the member herself has provided' for its being used to pay her debts, asks to have it applied in that way, it is not so exempt, asSit would be in aid of the member asking for such disposition.
Under the facts as found by the learned justice in the Supreme Oourt, I am- clearly of the opinion that this fund should be used by the administrators toward the payment of the debts of the deceased. Any other disposition of the fund would be in direct conflict with her expressed direction. It would be an injustice to the dead and an injustice to the living.
A decree may be.entered directing the distribution of this fúnd by the administrators toward the payment of the debts due from the estate, the costs against contestants.
Decreed accordingly.