condition in which it would be if it read upon its face that it was taken for the benefit of his wife, Mrs. M. A. Swift. Thus, in his letter dated the day before, which must be regarded as part of the same transaction, he says: "The inclosed note," referring no doubt to the document spoken of above, "makes the policy yours if you wish to keep it up." The contract between Mr. Swift and the association, growing out of his membership, and the clauses of their articles of association, required him to pay certain dues periodically, and in consideration thereof the association was to pay to him certain specified amounts, in case of injury to his person, and certain other specified amounts, in case of his death, to his widow, and in want of a widow to his children, in absence of a will, but in a case of a will, to such person or persons as should be designated in his will.

He was unable to pay the dues, and was liable to lose his membership; he writes to his wife, and says to her, if you will take this policy and pay the dues, you shall have the benefits, if any, to arise from it on account of my death, should it occur. He did not offer her the benefits to arise under the contract from personal injury, should that occur. The language of the writing, dated December 11, 1877, which is relied upon as showing that this writing was meant merely for a will, wherein he says: "I make my policy read for the benefit of Mrs. M. A. Swift in case of my death," is readily understood when the dual character of the contract is kept in mind. It plainly means, for the benefit of my wife in case of my death, and for the benefit of myself in case of personal injury. It was the benefit to arise in case of death which was assigned; and it was not meant that the assignment offered was not to take effect until his death. The intention was to offer a present transfer to her of a right to such benefit as might or might not arise, and could only arise in case of his death.

This was an offer which she had a right to accept. She did accept it and paid the dues. We are inclined to hold that these writings in connection with the action of the wife, accomplished a transfer or assignment to his wife of all his interests in the certificate, so far as his insurance of his life was concerned.

It is strenuously insisted that this contract was of such a character that it could not be assigned even equitably by Clark Swift. We think otherwise. Neither the wife nor children had any vested interest, conditional or otherwise, in this insurance money so long as Clark Swift lived, and owned and controlled this contract. The contract was between the association and himself. They had paid noth

ing for their supposed interest. The certificate had not been delivered or sold to them. The delivery to White made him bailee for Swift. It was a contract which was capable of being rescinded by Clark Swift with the assent of the association. It is not conceived that he had not complete control over it to the same extent that he might have controlled a promissory note payable to him. The will, of course, was of no effect until he died. At the time of his death he held no interest in that part of the money to arise from the contract relating to his death, which could pass to the executor by the will. That interest had been sold. It was assignable in equity and had been assigned to and paid for by the wife.

The judgment of the Appellate Court must be reversed and the cause remanded.

Reversed and remanded.

MULKEY, J.

I cannot concur, either in the reasoning or conclusion of the above opinion.

Annotations on the above case by the Editor of the Insurance Law Journal.

It is difficult to harmonize the views of the court in this case with the general current of decisions elsewhere. The fact that the decision reverses those of two courts below and was also dissented from by one of the judges here, shows that there was a strong diversity of sentiment among the judges. While it may be admitted that the intention of the assignee, ignorant of the legal principles involved, was to make a present gift to his wife, and that under a familiar doctrine of law such an intention should ordinarily be controlling in favor of an assignment, even if the instrument itself exhibited some of the features of a will, it is not clear that the assignee did not also have in mind at the time of its execution, the rules of the society, limiting his power of disposal to a will, and it is certainly open to question, whether the testamentary features of the instrument were not adopted with an express design to revoke his former will, and alter the beneficiary in conformity with the rules. If such were the case, it is difficult to understand how the Instrument could be treated otherwise than as a testament.

But aside from this, comes up the question whether the member of a mutual association, bound by its rules, has the power to change the beneficiary in a way not in conformity with the rules? The prevailing doctrine seems to be the contrary. In many if not most of the benevolent organizations the charter prescribes the disposition of the benefit with a limited testamentary power of control in the number, and the general doctrine has been that

that power was strictly limited by the charter; that the insured has no personal interest in the proceeds; it is no part of his estate, but is part of a fund intended especially for dependent beneficiaries. On this principle such associations have been declared incapable of taking an assignment of their own policies as security for a loan. As in ordinary life insurance the title vests in the beneficiary named in the instrument, so in the benefit association the charter which becomes a part of the contract vests the rights in the beneficiaries according to its provisions and design, beyond the power of the insured. Such has been the prevailing doctrine.

In the case of Ky. Masonic Mut. Ins. Co. vs. Miller's ad'r, 13 Bush.,494, the members were insured under a charter which restricted the benefit to the widows of members, and it was held that a member could not divert the benefit by contracting that it should be payable to himself; that "it is not in the power of the company or the members or both to alter the rights of those who by the charter, are declared to be the beneficiaries except in the mode and to the extent therein indicated." But the right of a member so to contract on the other hand seems to have been admitted by the Supreme Court of Pa., in the case of Penn. Mut. Relief Ass. vs. Folmer in 1878. So in the recent case of Duvall vs. Goodson in the Ky. C. A., 9 Ins. Law Journal, 901. The charter of the association provided that the fund for the benefit of the widow and children of the member should be paid them equally according to his will, or if there were no widow or child, then to be appropriated according to his will, or if he made no will it should vest in the company. The member left only a grand-child, and a will disposing of his property generally. The court said: "It is manifest from the charter, that a member of the company has no personal interest in his membership, and that his personal representative, as such, can never take any interest in it after his death. * * We therefore conclude that the charter gives a member a mere power of appointment in case he has neither wife nor child, and that he has no interest whatever in the fund." It was further held that a stipulation in the certificate to pay "to his assigns, or as he may direct by will," gave him no additional powers.

In the present case, however, there were special features which distinguished it from the case of ordinary benevolent associations, and which controlled the decision. The objects of the association seem not to have been limited by a charter to a certain class of beneficiaries. On the contrary, under its rules the member was expressly given an unrestricted power of disposition by will, in addition to a personal benefit in case of injury. Except in the fact that the benefit was not payable until his death, the insured had a direct personal interest in it. He could will it to his executor as part of his estate. He could will it to a creditor as an inducement for a present loan. No party besides himself had any interest, and the only question was as to his power of disposition by other methods than a will. On this point the court appears to have been controlled rather by the equities of the case,

than by strict legal technicalities. The real question at issue seems somewhat analogous to that of a married woman to dispose of her property in a way not in strict conformity with an enabling act.

SUPREME COURT OF MISSOURI.

STATE

VS.

MERCHANTS' EXCHANGE MUT. BENEVOLENT

SOCIETY.*

The object of the corporation, according to the constitution, was, "to give financial aid to the widows and children of deceased members, or to such uses and purposes as such member shall by his last will and testament direct." The members were divided into classes on the co-operative plan, an initiation fee was, according to the by-laws, to be applied as a permanent fund, the interest of which, with the assessments on the death of a member, were to be used for advances for members, in anticipating their dues on the death of a member, and defraying the current expenses.

Held, that the corporation was a mutual life insurance company, and the fact that its object was benevolent and not speculative had no bearing upon the nature and effect of the business conducted, and the contract made by the corporation to pay a sum upon the death of a member according to the number of members in his class.

Held, that the corporation was subject to the general insurance laws of Missouri touching mutual life insurance companies, and was not exempt under the acts of March 8th and May 19th, 1879, concerning benevolent and religious associations.

NAPTON, J.

Two points arise in this case, both of which have been fully discussed at the bar. The first question is whether this company or corporation, defendant, is doing, and authorized by its constitution to do, an insurance business; and the second point is based upon an assumption that, though it may be so authorized and so employed, it is still not within the statute laws in regard to insurance companies, but expressly exempted by the legislature from any such obligation to comply with the general law on the subject of insurance.

Decision rendered November, 1880.

The first question seems to be of easy solution, whether regarded in reference to the definitions of insurance adopted in the text books, or to specific judicial decisions. The origin of life insurance, as we are told by all writers on the subject, is traceable to benevolent motives. The object was to secure to the family of a person who was dependent on a salary or other income which ceased with his life, support upon the death of the insured by a small contribution of the annual income, and this, it is apparent, was a laudable and benevolent object. In France, we are told, life insurance was in early times prohibited, on the ground that it might operate as an incentive to those who would benefit by the termination of life to hasten such termination; but in England it was adopted by the judiciary long before its sanction by Parliament, upon an assumption, not unusual with those islanders, of a superiority in popular morals over their continental neighbors; and in this country it followed the common law of England into such States as adopted that system, but has been so entirely regulated by special legislation here, and probably in all other States, that any reference to its original character becomes unnecessary.

The definition given by Bunyon, an English writer on this subject, is probably as complete as any to be found in the text books. He defines life insurance to be "that in which one party agrees to pay a given sum upon the happening of a particular event contingent upon the duration of human life, in consideration of the immediate payment of a smaller sum, or certain equivalent periodical payments, by another." The Supreme Court of Massachusetts defined it to be "a contract by which one party promises to make a certain payment upon the destruction or injury of something in which the other party has an interest, whatever may be the terms of payment of the consideration or the mode of estimating or securing payment of the sum to be assured in case of loss." This definition of the Massachusetts court was given in a case in which the facts were identical, substantially, with the one we now have under consideration. The only question in that case was, whether the charter of a company called the Connecticut Mutual Benefit Company, was, in effect, a life insurance corporation. The name of the company was the Connecticut Mutual Benefit Company, and its constitution recited its object to be mutual benefit and relief in case of death as hereinafter set forth. The affairs of the company were intrusted to a board of directors, and its officers were a president, secretary, treasurer, etc. The funds of the company were raised by admission fees of members and assessments, as