Mellows v. Mellows

61 N.H. 137

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1881
• Status: Published

Opinion

Doe, C. J.

The contract of membership of the association was a policy of life insurance within the meaning of the statute, and the insolvency of the estate of the deceased member did not subject the fund to the payment of her debts. G. L., c. ITS. If the will had been acknowledged before a justice of the peace, it would have been an order, executed with the formalities prescribed by the insurance contract (Dennett v. Kirk, 59 N. H. 10); and the question would have arisen whether there is any limitation of the persons in whose favor the member could exercise the power of appointment. The association was liable to pay the money to or for the benefit of some of these claimants, and had no interest in the question raised by their conflicting claims; and it does not appear that the association assumed to waive the objection to the execution of the order. There is no evidence that the payment of the money to the executor was intended to be a determination of the rights of the claimants, or that their rights are affected by the circumstance that the bill is brought by the executor instead of the association.

The contract does not expressly allow the power of appointment to be exercised by an order executed in a manner deemed by a court or jury equivalent in utility to the prescribed form. The object of the association is the payment of a certain amount of life insurance after the death of each member; and it may reasonably be inferred that, for a substitutional appointment, a written and acknowledged order, signed by two witnesses, is required, not merely as evidence satisfactory to the payer, but as such a protection of each member, and the payees named in the contract, as the law provides for an owner of property and for his heirs, in the execution of a will or codicil. It might be claimed that anything shown by competent evidence to have been regarded by the parties, when they made the contract, as mere matter of form, the law would not treat as matter of substance. But an acknowledgment of a substitutional order before a justice of the peace might in fact be a material safeguard for the member making it, and for the beneficiaries named in the rules and displaced by the order; and the contract does not authorize any tribunal to dispense with any proceeding exacted by the contract as a substantial security of the rights of those parties. If acknowledgment could be omitted as a useless form, there is no ground of law on which two witnesses, or a signed writing, could be required. The will is not such an order as the contract demands, and the brothers of the deceased are entitled to the fund.

Oase discharged.

Allen, J., did not sit: the others concurred.