401 BENEFICIARY SOCIETIES. [Hamilton Common Pleas, October Term, 1890.] MARY THESING V. SUPREME LODGE K. OF A. ET AL. 1. The beneficiary to whom a member of a mutual benevolent order has his death certificate payable, has no vested interest therein when the laws of the order reserve a right to the member to change the direction of the fund. 2. Rules and regulations of the order prescribing the method of changing the beneficiary, or imposing conditions on the right to change, are made for the benefit of the order, and not of the beneficiary, and the order does not guarantee or promise him that it will enforce or will not abrogate such rules. And a new certificate to another beneficiary, made at a member's request without the original beneficiary's consent although the former rules required \such consent, will supersede the original certificate. INTERPLEADER. In 1882 Frank Thesing became a member of Branch 60, at Cincinnati, of the Catholic Knights of America, a corporation chartered by the state of Kentucky, in 1880, with power by its charter, section 2, to issue benefit certificates, not exceeding $2,000, to be paid "at the death of a member to his family or be disposed of as he may direct." Frank Thesing had his benefit certificate, issued in January, 1883, made payable to his children Lulu and Bernard. At that time the beneficiary could be changed by a member by surrendering his certificate with the consent of the beneficiary endorsed thereon. On June 29, 1886, Frank Thesing surrendered his certificate without the endorsement of his children's consent, and the society issued a new one to him, payable to his wife Mary, the plaintiff. He died in January, 1890, leaving his wife and two children, aged 10 and 14, surviving. His wife now asks for the amount of the certificate. The society is ready to pay the money, but being afraid to pay either to the wife or children, interpleads them and asks instruction from the court as to the disposition of the fund, and pays the money into court. The original certificate is payable to the children named "or to the beneficiary or beneficiaries that he may hereafter have a certificate made in favor of, on surrendering this certificate." It also on its face reserves a right in Thesing to substitute another beneficiary "if he so desires, by complying with the laws of the order upon this subject," and also expressly states that it is a contract between the society and the member, and not a contract between it and the beneficiaries named. Article IX, sec. 7, of the constitution of subordinate branches provides that "each member may enter upon his application the name or names of the member or members of his family, or those to whom he desires his benefit paid, subject to the future disposal of the benefit as a member may thereafter direct in accordance with the laws of this order, and they shall be entered in the benefit certificate according to said direction. A member may at any time, when in good standing, with the consent of his beneficiary endorsed thereon, surrender his benefit certificate, which with directions to whom a new certificate shall be made payable, and a fee of 50 cents, shall be forwarded, etc., to the supreme secretary, who shall thereupon cancel the old certificate and cause a new certificate to be issued to such member payable as he shall have directed. 401 Thesing v. Supreme Lodge K. of A. et al. The above is the language of the constitution as it stood in 1881 and 1883. About July 1, 1885, this was changed so as to omit the words "with consent of his beneficiary endorsed thereon" for the constitution, as printed in 1885, omits them, while that printed in 1889 reinstates the condition. BATES, J. It is well settled in ordinary life insurance that a policy is a promise to the beneficiary of which he can not be deprived without his consent. In the beneficial or benevolent orders, however, the contract is with the member, and not with his appointee, and is analagous to any other contract made between two persons, for the benefit of a third person, so that if the two contracting parties rescind the contract the third person's power to enforce it ceases. Trimble v. Strother, 25 Ohio St., 378. The difference between the two forms of insurance is apparent, for the constitutions of the benevolent orders have universally reserved to their members, in some form or other, a right to change the direction of their death benefits. Moreover, there is another essential distinction, in that in ordinary life insurance the connection of the assured with the company begins and ends with the policy, and exists solely for the purposes of that contract. But in the mutual beneficial order membership of a person exists independent of and anterior to the death certificate, and whether he ever receives a certificate or not, he has a right to direct the course of his share in the right to death benefits, and the certificate is a species of testamentary exercise of that right. Hence it seems settled that the interest of a beneficiary under the certificate before death is not a contract relation nor a vested right, but is a mere expectancy, something like that of a legatee while the testator still lives and may revoke his will. Following are the latest cases on the subject. The earlier ones will be found in the excellent treatises of Bacon and of Niblack. Martin v. Stubbings, 126 Ill., 387; Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind., 189: Holland v. Taylor, 111 Ind., 121; Milner v. Broerman, 119 Ind., 448; Titsworth v. Titsworth, 40 Kansas, 571; Manning v. A. O. U. W., 86 Ky., 136; Marsh v. American Legion of Honor, 149 Mass., 512: Richmond v. Johnson, 28 Minn., 447; Barton v. Provident Mut. Relief Ass'n, 63 N. H., 535; Knights of Honor v. Watson, 64 N. H., 517; Beatty's Appeal, 122 Pa. St., 428; Byrne v. Casey, 70 Tex., 247; Lamont v. Grand Lodge Iowa Legion of Honor, 31 Fed. Rep., 177. Hence, in all the above cases a change was allowed in the designation of a beneficiary. In the present case, the laws of the order when the first certificate issued allowed a change only upon indorsement of consent. In all the beneficial orders, in so far as the reported cases show, there are conditions imposing a certain mode of proceeding for changing beneficiaries. The by-laws or regulations require a distinct routine to be pursued and definite formalities to be observed, such as notice to or attestation of certain officers, or payment of a certain fee, or surrender of the certificate. But all these and similar provisions are made solely for the benefit of the order, and not of the beneficiary. The order does not guarantee to enforce such rules, or agree that it will not change them. Nor are they made to settle disputes between rival claimants. This follows necessarily from the fact that the beneficiary is not a party to the contract, and has no vested right, nor greater interest than has a legatee under a will be fore the testator has died. Hence, it is the settled doctrine that the order It is true, the authorities are not agreed whether an intended change of beneficiary attempted to be made by a member in an informal way, or without compliance with the rules of the order, can be effectuated merely by the society's assent after the member's death, where the society has not taken any steps to waive the objection or recognize the change before death. In other words, if the change must be accomplished in the prescribed form unless the society waives it, and if the rights of the beneficiary become vested at the member's death, then it is seriously questioned whether the society can divest such rights by a waiver of informality after death. It is manifest that this dispute of authorities does not arise in the present case, for here the society issued the new certificate to the beneficiary in the manner required by the laws of the order. Hence, although some of the authorities cited below would often not be concurred in to the extent of sustaining a waiver after the member's death, yet they represent and establish the law to the extent of permitting such waiver at the time there is a clear power to waive, to-wit, before death, and a few will be examined to show this. Thus in Splawn v. Chew, 60 Tex., 532, the American Legion of Honor issued a certificate for $5,000 to Chew, payable to his parents, subject to such future disposal as he should direct. A A by-law allowed a change of beneficiary on surrender of the policy and payment of 50 cents. Chew by will devised his certificate to his wife and children, appointing Splawn his executor, and the society interpleaded the two claimants. The court held the certificate to be entirely under a member's control, and that the society would waive a compliance with the by-laws. In Manning v. A. O. U. W., 86 Ky., 136, Manning had his certificate made to his brother. He shortly afterwards married. A by-law permitted a change of beneficiary by certifying such intention on the back of the certificate, attested by the recorder, or by a notary public if the recorder could not be reached, and paying 50 cents. But no change was to be valid until reported to the grand recorder and a new certificate issued. Manning wrote to his lodge to change the certificate to his wife, but did not enclose the 50 cents. The lodge wrote to him to send this fee, but he was killed before sending it. After the death the lodge issued a new certificate to his wife. The court held that the by-laws was merely for the benefit of the lodge, and the order could waive the rule and the intent of the member could be carried out, and third persons could not complain. That the letter changed the beneficiary if the lodge waived the non-compliance with the by-law, which it did do. In Titsworth v. Titsworth, 40 Kansas, 571, the A. O. U. W. issued a certificate to Titsworth, payable to his wife. While on his death bed, in a distant state, he had his nurse write to his lodge to have the beneficiary changed from his wife, then divorced, to his mother. The by-law was the same as in the foregoing case. The nurse indorsed the certificate, signing Titsworth's name, and mailed it, and the lodge issued a new certificate, although the indorsement was not signed by Titsworth nor made before the recorder or a notary, nor was the 50 cents paid. The court sustained the new certificate, approving the law as laid down Splawn v. Chew and Manning v. A. O. U. W., stating that if the society changes the beneficiary, all questions as to whether it was done in accordance with the rules and regulations are concluded, for these are 401 Thesing v. Supreme Lodge K. of A. et al. directory only, and for the protection of the order, and the court limits its former rulings in 37 Kansas, 93. So in Grand Lodge A. O. U. W. v. Child, 70 Mich., 163, the certificate was payable to a lady to whom the member was engaged. She broke off the engagement and he asked for a new certificate payable to his son, but as he had lost the old one he could not indorse or surrender it, and the society therefore refused to issue a new one and he died before completion of further steps. Nevertheless the court effectuated his intention, saying that the by-law was not intended to require impossibilities such as the surrender of a lost certificate, and the fund was awarded to the son. See also South Tier Masonic Relief Ass'n. v. Loudenbach, 5 N. Y. Supp., 901, and the two cases cited below. From the foregoing principles it clearly follows that the requirement which formerly obtained in the constitution of the Catholic Knights, of an endorsement of consent by the beneficiary to precede a change, gave the beneficiary no additional rights, but was merely adopted by the order for its own protection, doubtless to prevent conflicting claims from rival demandants, and could be altered or waived by the order. By reason of examining this subject with considerable care, owing to a feeling of responsibility as between minor children and a step-mother though said to be living as affectionately as if they were mother and children I have met two cases scarcely a year old decided by the Supreme Courts of Texas and Rhode Island, which are upon the same change in the constitution of this very society, and seem not to be distinguishable from the case at bar. In Byrne v. Casey, 70 Tex., 247, the Catholic Knights, in 1882, issued a certificate to Henry Byrne, payable to his wife Margaret, at a time when the constitution required the beneficiary's consent to a change. The constitution having been altered in July, 1885, by omitting the provision as to consent, Henry Byrne, a year afterwards procured the policy from a person who held it for his wife, and without her knowledge surrendered it and procured a new one payable to the defendant Casey. Henry Byrne having died, his wife and Casey both claimed the fund, and the Society, as in our case, interpleaded and paid the money into court, and the court held that Byrne had the right to act under the new constitution and change the beneficiary, and hence that Casey was entitled to the fund. So in a case to appear in the next volume of Rhode Island Reports (Supreme Council of Catholic Knights v. Morrison, 17 Atlantic Reporter, 57), Patrick Cosgrove's certificate was payable to his wife, and without having her consent indorsed, and without her knowledge, he surrendered it and obtaied a new one payable to others, and the latter were held entitled to the fund. These cases establish the doctrine that the conditions with which a society surrounds a member's right to change a beneficiary, cannot be invoked against the society, nor the member, by the beneficiary. The fund must therefore be awarded to the plaintiff. Carr. Dengler & Speiser, attorneys for plaintiff. In Ohio the stealing of a dog may or may not be larceny, depending upon whether the animal is of value. PHILLIPS, J. The grand jury came into court and asked to be instructed as to whether the stealing of a dog in Ohio is larceny. Judge Phillips thereupon instructed the grand jury as follows: "Formerly, our statute defining larceny provided that whoever steals the 'goods or chattels' of another is guilty of larceny. Under the law as it then stood, our Supreme Court held that inasmuch as a dog is neither goods nor chattels, it was not larceny to steal a dog. "After this decision by the Supreme Court, the legislature changed the statute defining larceny, so as to make it read, 'Whoever steals anything of value is guilty of larceny.' This is the state of the law now. So that the test now as to whether a stealing constitutes larceny is not, as formerly, whether the thing stolen is goods or chattels, but whether the thing stolen is 'of value.' "In this state of the law, the stealing of a dog may be larceny, or it may not be. If the dog is of value, the theft would be larceny; otherwise, it would not be. We all know that some dogs are the subject of ownership, some render useful services, some are bought and sold; these are indicia of value. So that I may say to you, as matter of law, that a dog may be 'of value,' and so may be the subject of larceny; and I say to you, also, that to steal a dog that has no value is not larceny. "If it should be proved to you that any person has stolen a dog in this county, if it also appear that the dog stolen was 'of value,' you would be authorized to indict such person for larceny; in the absence of proof of any value, you should not indict." The decision referred to by Judge Phillips is in State v. Lymus, 26 O. S., 400. It was undoubtedly the rule at common law that the stealing of a dog did not constitute larceny; but the later cases incline to a contrary view. See State v. Brown, 50 Am. Rep., 81, and cases there cited. Judge Huggins, of the Fayette Commmon Pleas, has made a holding in harmony with the view taken by Judge Phillips. See State v. Yates, 10 Dec. Re., 182. 422 STREET ASSESSMENTS. [Superior Court of Cincinnati, General Term, 1890.] 1. The purpose of the provision of sec. 2264 Rev. Stat., providing for assessments on such property "as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made." is that it shall be designated in advance whether the assessment is to be on the abutting and such adjacent and contiguous or other benefited lots *For opinion of the superior court in special term, see 10 Dec. Re., 783. |