Thomeuf v. Knights of Birmingham , 12 Pa. Super. 195 ( 1899 )

Opinion by

Rice, P. J.,

The facts of this case are clearly and fully stated in the charge and need not be recited here. The first question is, whether the paper of June 22, 1896, was a “ designation ” of a beneficiaiy within the meaning of the charter and by-laws of the defendant corporation or was merely a testamentary paper requiring probate ? It has been suggested that the use of the present tense and the expression of the consideration for which it was given go to show that the maker intended it as a present assignment of money to become due after death. But it is unnecessary to go to that extreme. The designation of a beneficiaiy by a member of a benefit society is, in a sense, an act testamentary in character: Burst v. Weisenborn, 1 Pa. Superior Ct. 276. The claim of the beneficiary in such a case is not based on a contract with him, but upon the appointment made by the member, or the direction given by him for the payment of the money: Niblack on Benefit Societies, sec. 229. The validity of an appointment of this nature on the books of a savings fund society when authorized by its charter, was expressly affirmed in Knorr’s Appeal, 89 Pa. 93, notwithstanding the provision of the statute of wills. “ It enables the society to pay with safety, and the appointee of the depositor to receive without expense.” The same purpose was had in view in the present charter. Therefore, the use of testamentary words in the paper does not conclusively show that it was not intended as a “ designation.” In other words, the paper might fall short of being a present and an irrevocable assignment of the fund, and yet be a valid designation of the beneficiary if so intended. The question is, what was the intent of the member ? Whatever doubt might arise from the use of the word “ bequeath,” instead of the word “ designate,” is repelled by the fact that on the same day he executed it he forwarded the paper to the secretary of the lodge. If he had retained it in his possession until his death, an entirely different question would be presented. See Tozer v. Jackson, 164 Pa. 378, 381; Kisecker’s Estate, 190 Pa. 476; Diehl’s Estate, 11 Pa. Superior Ct. 293. In the absence of explanatory evidence, the natural and only possible inference is that he forwarded the paper to the official of the society in order that the designation might be entered on the books of the lodge, as required by the constitution. The secretary, so construing it, filed it, and made the appropriate entry. The appointment was then complete and was never revoked. So that at the death of Henry C. Shoemaker, the plaintiff was prima facie entitled to receive the money because she was the person whom, to quote from the charter, the deceased had “ designated to receive the same as appears on the books of the lodge of which he was a member.” There is no proof in the case to overcome this prima facie.

The second question is whether the decedent had a right to designate one as beneficiary who was neither a member of his family nor an heir, nor a blood relation, nor an affianced wife, nor a person dependent upon him ? He clearly had that right when he became a member, which was three years before the passage of the Act of April 6, 1893, P. L. 7. This is not denied, and could not be without coming in conflict with the decision of the Supreme Court in Maneely v. Knights of Birmingham, 115 Pa. 305. It was a contractual right, and, as the system of the society did not require that it be evidenced by a benefit certificate, it was as perfect as if such certificate had been issued to him, in winch the provision of the constitution and by-laws, relative to the payment to the beneficiary to be designated by him, was expressed in the form of a promise. This is not controverted; but it is contended that the act of 1893 was an amendment of the charter which had the incidental effect of depriving the member of the right to designate any. one as his beneficiary outside the classes of persons mentioned in the act. We had occasion to consider one phase of this question in Wolpert v. Knights of Birmingham, 2 Pa. Superior Ct. 564, and there held that the act did not affect a designation of a beneficiary made prior to its passage. This was put upon the ground that the statute was “ too plainly prospective in its operation to admit of any doubt.” But as already noticed, the contract was with the member, not with the designated beneficiary. The latter has not a vested right to the fund until the death of the member. The right of the latter to designate the person to whom the fund shall be paid implies the right to change the beneficiary in the mode prescribed by the constitution and by-laws. Hence it would seem plain that if the statute was not intended to be applied retrospectively so as to affect the mere expectancy of a designated beneficiary it is not to be so applied as to impair the right of the member to designate or change the beneficiary. We are supported in this conclusion by the well considered decision upon the precise question in Voight v. Kersten, 164 Ill. 314; 45 N. E. Rep. 543.

Judgment affirmed.