Fink v. . Fink , 171 N.Y. 616 ( 1902 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Eugene Fink, as a member of the association, had the power to change the beneficiary named in the certificate, provided, in executing the power, he complied with the contract which created it. That contract consisted of the application, the certificate showing how the power of appointment had been exercised, and the by-laws which, among other things, regulated the method of appointing a new beneficiary. They provided that a new certificate should be issued if the member asked for one, but only upon the condition that he paid the sum of twenty-five cents to the association. It was the duty of the recording secretary "to fill out and prepare certificates of membership" and of himself and the president to sign them. The request of Mr. Fink for a new certificate did not reach the association until after his death, and he never paid it the fee required by the by-laws. The payment to Wiltshire, the collector, was not a payment to the association, because he had no authority to receive it, as its agent. His duties were "to receive and collect dues and assessments from members, giving his receipt therefor upon blanks furnished by the association." The dues and assessments referred to are monthly dues required from each member and certain assessments made quarterly, as well as those made upon the death of members. The by-laws, of which the member had notice for they were a part of the contract, did not authorize the collector to receive the fee required before a new certificate could be issued, and they expressly prohibited him from waiving any condition by them prescribed. In receiving the fee and transmitting it to the association, he did not act as its agent but as the agent of the member.

The change of the beneficiary is an important matter, for it transfers the right to receive the death benefit, amounting in this case to $1,000, from one person to another. The right of the member to make the change is absolute and the beneficiary can neither prevent it by objecting, nor promote it by consenting. Obviously such a transaction requires some formalities for the protection of the company, the member and the beneficiary. The formalities required by the association before us, through its by-laws, were very simple, but unless they were substantially complied with, the change could not be made. Mere intention to make a change is not enough, for the acts prescribed to carry the intention into effect are forms imposed upon the execution of a power, and they must be observed or the change cannot be effected. As a condition precedent to effectuate the change, the member was required to ask the association for a new certificate and to pay it the fee exacted by the by-laws. The association could not make the change unless he requested it and even then, as it stipulated in its contract with him, "only on the payment of twenty-five cents." While it could have waived payment during his life, it did not do so and it could waive nothing after his death, for by that event the rights of the beneficiary became fixed and unalterable.

As no provision was made in the by-laws for sending the fee by mail, and there had been no correspondence with the company upon the subject, transmission by that means could affect nothing until the letter actually reached the officers of the association and then it was too late. (Peabody v. Satterlee, 166 N.Y. 174. ) When nothing has been done by either party to authorize or call for a letter from the other, the agent selected to deliver is the agent of the sender, not of the receiver. The relation is not changed by selecting the United States mail as the agency to make the delivery, any more than if an express company or a personal messenger had been chosen for that purpose. (CrownPoint Iron Co. v. Ætna Ins. Co., 127 N.Y. 608, 618.)

The mailing of the letter, therefore, was not a delivery to the association, for the post office department became the agent of the one who sent the letter, not of the one who finally received it. When the member died, he had not asked for a new certificate, nor had he paid the fee therefor, within the true meaning of the by-laws. While he intended and tried to make both the request and the payment, the agency selected by him for the purpose failed to deliver either until after his death. This failure was his failure and the change intended was not made. When he died the title of his wife became absolute, and the subsequent receipt by the association of both money and request did not change her rights, for it had then become her debtor for the amount payable by virtue of the contract.

The question before us is a question of title, for the certificate issued in favor of the wife was valid and binding upon all concerned until a change of beneficiary was lawfully made. The contract creating the power to appoint another beneficiary protects the existing beneficiary until the forms imposed upon the execution of the power have been substantially complied with. When the member died he had not executed the power, for the association had no knowledge of his intention or attempt to make the change and was, therefore, under no liability to the plaintiff, because her title was not perfected in accordance with the contract. The intention of the member was no clearer than it was in Thomas v. Thomas (131 N.Y. 205), where we held there was no valid change in the beneficiary because the member had failed to conform to the by-laws. The hardship in that case was quite equal to the hardship in this, but we held that there was a defective execution of a power and that the intention and attempt to change the beneficiary were ineffectual on that account.

In Luhrs v. Luhrs (123 N.Y. 367), relied upon by the Appellate Division in giving judgment, the constitution of the association provided that a member desiring to change his beneficiary might do so by surrendering to his local lodge the benefit certificate, and it was the duty of the local lodge to forward the same to the supreme lodge, which was thereupon required to cancel the original certificate and issue a new one in lieu thereof payable as the member directed. The member surrendered his old certificate to the local lodge with a direction written thereon to issue a new one for the benefit of another beneficiary. The local lodge mailed it to the supreme lodge the next day, and after it was mailed, but before it reached its destination, the member died. Under these circumstances we held, with some hesitation, that the surrender of the certificate to the local lodge was in law the surrender thereof to the supreme lodge, which had no discretion in the premises, and that, as the member had done all that was required on his part to effect the change, the issuance of another certificate after his death might "be held to relate back to the time of the original surrender to the agent of the supreme lodge." We further declared that "no new rights were brought into being by the action of the supreme lodge after the death of the member, but that action simply gave the proper written evidence to the beneficiary of the existence of those rights which had, in fact, accrued before the formal issuing of such written evidence."

In that case everything had been done that the member could do, while in this he had really done nothing, as his attempt to reach the company was a failure. If he had started in full health to deliver the letter in person and had met with a fatal accident on the way, the failure would have been no more complete.

The member could not change the beneficiary by will, because the by-laws did not so provide, and the method prescribed by them was exclusive. Nor could he thus dispose of the right to receive the death benefit, because he had no property interest therein, but only a power of appointment. (Hellenberg v. District No.One I.O. of B.B., 94 N.Y. 580, 585.) In deciding that case we said: "The testator could have any time gone to his lodge and designated upon the books some other recipient, thus revoking his previous designation. The mother could not become entitled to the endowment at all unless she survived the testator, and her designation remained unrevoked. Nor did the testator have any interest in the future fund. He had simply a power of appointment, authority to designate the ultimate beneficiary, and that power and authority died with him, because it could only be exercised by him, and prior to his decease. If he did not so exercise it nobody surviving or representing him could, and upon his death he could have nothing which would descend, or upon which a will could operate."

We think that the judgment rendered by the Special Term was right, and that the order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs to the defendant, Ellen Fink, against the plaintiff.

PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT, MARTIN and CULLEN, JJ., concur.

Order reversed, etc.