Thomas v. Thomas

• Decision Date: 12 February 1892
• Citation: 131 N.Y. 205,30 N.E. 61
• Parties: THOMAS v. THOMAS et al.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 205

30 N.E. 61

THOMAS

v.THOMAS et al.

Court of Appeals of New York.

Feb. 12, 1892.

Appeal from supreme court, general term, fifth department.

Action by Sarah A. Thomas, an infant, by guardian, against Mary E. Thomas, impleaded with the Order of Chosen Friends. From a judgment of general term reversing an order of special term, defendants appeal. Affirmed.

MUTUAL BENEFIT POLICY-CHANGE OF BENEFICIARY-BY-LAWS OF SOCIETY.

A person holding a certificate of membership in a benefit society, which designated the holder's daughter as the beneficiary thereof, on his second marriage inserted, immediately after the daughter's name as beneficiary, the words ‘and my wife.’ The by laws of the society provided: ‘A member in good standing may at any time surrender his relief-fund certificate, and a new certificate shall thereafter be issued, payable to such person or persons as the member may direct.’ Held, that such certificate could only be made payable to any other person than the beneficiary therein mentioned by surrender to the society as provided by its by-laws, and that such member's wife, on his death, acquired no title to any part of its proceeds on account of decedent's alteration thereof in her favor. 15 N. Y. Supp. 15, affirmed.

Ellsworth, Potter & Storrs, (A. K. Potter, of counsel,) for appellants.

W. C. Ely and H. Dudley, for respondent.

MAYNARD, J.

This action involves the question of title to a certificate of membership issued by the defendant, the Supreme Council of the Order of Chosen Friends, an Indiana assessment insurance corporation, to David H. Thomas, April 28, 1881, insuring the life of Thomas in the sum of $3,000, to be paid at his death to the plaintiff, Sarah A. Thomas, his only minor child, then living with him, and of the age of about seven years. Thomas was a widower when the certificate was issued, and on June 1, 1882, intermarried with the defendant Mary E. Thomas. He died January 24, 1887. The certificate as issued designated the payee as follows: ‘Which sum shall, in case of death, be paid to my daughter, Sarah Ann Thomas.’ A few days after his marriage, without the knowledge of the insurance company, Thomas inserted in the certificate, in a blank space after the words above quoted, the following: ‘and my wife, Mary Elizabeth Thomas,’-thus attempting to make her a joint payee and beneficiary thereof with his daughter. The trial court has found, and upon what appears to be sufficient evidence, that this insertion by him of the name of his wife was in consideration of the marriage and of love and affection, and for the purpose of changing and with the intent to change the beneficiary named in the certificate so that his wife should have an equal part and share with his daughter in its benefits; that he thereupon delivered the certificate to his wife, and that she, for a like consideration and with like purposeand intent, took and received it from him; that Thomas supposed and believed that he had thereby revoked and changed and had done everything necessary and proper to be done to effect the revocation and change of the beneficiary originally named in the certificate, and for the substitution in place thereof of his wife as the joint and equal beneficiary with his daughter therein, and had effected such substitution, and that the wife, at the time of the receipt of the certificate, believed, and has always since believed, that no further act or thing was necessary or remained to be done to entitle her to participate in the moneys to be derived from the certificate and in the benefits secured thereby. There was an independent finding that, after the issuing of the certificate to him, Thomas, for a certain good and valuable consideration, and for love and affection, duly transferred to his wife and gave and delivered to her the certificate and an equal share with the plaintiff in the benefits to be derived therefrom; but there were no facts other than those stated above to support this finding. After the death of the insured, and upon proof thereof made by the plaintiff, the insurance company drew a warrant payable to her guardian for the sum of $3,000, but refused to deliver it unless the certificate of membership was surrendered. This certificate the plaintiff was unable to produce, because it...