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Section 6A was amended by Act 1916, c., 210 of article 23 of the Code of 1904, which 343, and, as amended, is found in section 234, provided as follows: art. 23, vol. 4, of the Code, and provides as follows:

"The payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree, father-in-law, mother-in-law, sonin-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person or persons dependent upon the member," etc.

It is to be observed that neither section 6A of the Act of 1912, nor section 234 of article 23 of volume 4 of the Code provides in terms who may or shall be designated as beneficiary in a certificate, but they (as did the act of 1894) expressly deal with the persons to whom payment of death benefits must

be confined.

In the case of Dale v. Brumbly, 96 Md. 674, 54 Atl. 655, the Supreme Conclave Improved Order of Heptasophs issued to William Brumbly a certificate for $1,000 payable to his four children. That certificate was surrendered and another issued for $3,000, payable to the four children mentioned in the first certificate "and all his surviving children." The last-named certificate was later surrendered, and another issued for $3,000, payable to "his estate," and this certificate was about a year later, assigned to a certain Peter Dale "as collateral security." Peter Dale having died, William Brumbly executed on the certificate a formal assignment, under seal of all his right, title, and interest therein to the administrators of Peter Dale. After stating that the constitution and laws of the order provided who could be designated as beneficiaries, and that the Act 1894, c. 295, provided that the benefit was not assignable except to those named in the act (which did not include creditors), the court said:

"The association would have no power then under its constitution or the laws of this state to pay the fund to a creditor of the deceased."

"Payment of death benefits may be made only to the widow, children, grandchildren, mother, father, brother, sister, grandparent, aunt, uncle, niece, nephew, first cousin, next of kin who would be distributees of the member's personal estate if he died intestate, an affianced husband or affianced wife of the member, or to persons dependent upon the member for food, lodging, clothing, or education, and to none other."

On the record in that case the court could

not determine whether the society was one within the provisions of section 210 of the Code, so the case was remanded, without affirming or reversing the decree. But in remanding the case this court, speaking through Chief Judge Boyd, said:

"If it be shown that the society is subject to the provisions of the Code in reference to fraternal and beneficiary societies (section 210, etc., art. 23), then in our judgment the appellant is not entitled to this fund. She was confessedly not the wife of Frederick Meinhardt, and was not related to or dependent upon him, as provided by section 210, and the language of that section that 'payments of death benefits may be made only to the widow, children, * * and to none other' cannot be disregarded."

In answer to the contention that the right of the society to question the eligibility of the person designated might be lost by estoppel or waiver, the court said further:

"The question here is whether such a statute as we have here, which positively prohibits the payment of death benefits to any one other than one or more of the classes named, can be set aside by the action of the society. It is said in 29 Cyc. 108, that, 'Where the classes of perscribed by statute or by the society's charter sons to whom benefits may be paid are preof incorporation, neither the society, nor a member, nor the two combined, can divert the fund from the classes prescribed.' We deem that to be a correct rule."

These cases dispose of the one at bar. It In the case of Meinhardt v. Meinhardt, is true that in this case the plaintiff was the 117 Md. 426, 83 Atl. 715, the appellee was mar- wife of John Argus at the time the certificate ried to Frederick Meinhardt in 1888. They was issued, but that does not bring her withseparated a few years later, and never lived in the terms of the statute, or take the case together again, but they were never divorced. out of the rule adopted in the cases mentionThe appellant and Frederick Meinhardt lived ed. Section 234, art. 23, vol. 4, of the Code together as man and wife for 10 years prior expressly confines payment of death benefits to his death, in 1909. While they were liv- "to wife, husband," etc., and what those ing together in May, 1907, a certificate of cases decided is that under such a statute membership was issued to him by the Amer-payment of death benefits can only be made ican Benefit Society of Baltimore City, which stated that

"The benefits herein provided will be paid to Bertha Meinhardt [the appellant], wife, after the proper proofs of death."

The society filed a bill of interpleader against the appellant and appellee, both of whom claimed the fund. The appellee claimed that the certificate was subject to section

to one or more of the classes therein named. After the decree of divorcement the plaintiff was no longer the wife of John Argus, and she does not assert her claim on the ground that she was dependent upon him at the time of his death, and under the statute the defendant would have no power to pay her the death benefits sued for.

We have treated the decree referred to, as have counsel in their briefs in this court,

(108 A.)

as a decree granting a "divorce a vinculo matrimonii,” and we must hold that the effect of that decree was to terminate the plaintiff's rights under said certificate as the wife of John Argus.

It is said

(135 Md. 195)

WILSON v. MARTIN'S ESTATE. (No. 24.) (Court of Appeals of Maryland. Nov. 21, 1919. Rehearing Denied Feb. 6, 1920.)

The view we have expressed is in accord 1. WILLS 364-APPEAL FROM TWO ORDERS with the decisions in other states. in 29 Cyc. 106, 107:

"Where a person's eligibility as a beneficiary depends upon his sustaining a particular relation to the member, his eligibility is generally determinable as of the time of the member's death."

See, also, Green v. Green, 147 Ky. 608, 144 S. W. 1073, 39 L. R. A. (N. S.) 370, Ann. Cas. 1913D, 683; Giffin v. Grand Lodge, 99 Neb. 589, 157 N. W. 113, L. R. A. 1916D, 1168; Dahlin v. Modern Maccabees, 151 Mich. 644, 115 N. W. 975; Kirkpatrick v. Modern Woodmen, 103 Ill. App. 468; Tyler v. Odd Fellows Mutual Relief Ass'n, 145 Mass. 134, 13 N. E.

360.

In view of the provisions of the statute in this state, the cases cited and relied on by the appellant can hardly be said to support a different view. In the case of Overhiser v. Overhiser, 14 Colo. App. 1, 59 Pac. 75, the court said:

"In others, the statute laws of the jurisdiction under which they are organized or operate, regulate the distribution of the fund, or impose restrictions upon the society in respect thereto. This is not the case here. The only requirement in this case, and that by the laws of the association, is that no certificate shall issue unless the beneficiary be named, and that such beneficiary be within one of the certain classes. It will be seen at a glance that there is a wide distinction between a requirement that a certificate shall issue to only one of a certain class of persons and one that payment can be made to only one of a certain class."

In the case of White v. Brotherhood of American Yoemen, 124 Iowa, 293, 99 N. W. 1071, 66 L. R. A. 164, 104 Am. St. Rep. 323, 2 Ann. Cas. 350, the statute provided that no benefit certificate should be issued unless the beneficiary "shall be the husband, wife," etc. The court said that the wife was one of the class of persons designated by the statute, and that the statute provided only for the relationship that "shall exist when the certificate is issued, and does not in words, or by fair implication, limit payment to those only who occupy such relation at the time of death." In Brown v. A. O. U. W., 208 Pa. 101, 57 Atl. 176, the by-laws of the order provided for several classes of persons to whom benefit certificates should be issued, and there was no statute involved, and the court distinctly recognized the distinction between such a provision and one providing that the recipient of the benefit should belong to one of the classes.

Judgment affirmed, with costs.

WILL NOT BE CONSIDERED AS TO ONE ORDER WHERE NOT TAKEN ON TIME.

Where an order was made February 17th admitting a paper writing to probate, and a petition was filed to rescind the order, and the peti tion was refused May 1st, on an appeal from the two orders the action of the court in admitting the will to probate cannot be reviewed; the appeal not being taken within the time prescribed by Code, art. 5, § 62.

2. WILLS 370-ORDER REFUSING

RE

SCIND PROBATE NOT REVIEWED IN ABSENCE OF FACTS IN THE RECORD.

Where an order was made February 17th admitting a paper writing to probate, and petition was filed to rescind the order, and such petition was refused May 1st, and an appeal was termine whether or not the court correctly detaken May 23d the appellate court cannot decided the questions raised by the petition, where the record does not contain the facts or evidence heard by the court upon the hearing had upon such petition.

3. APPEAL AND ERROR 907 (2)-WHERE RECORD CONTAINS NO EVIDENCE, PRESUMPTION IS IN FAVOR OF CORRECTNESS OF FINDING. Where the record does not contain the facts

or evidence heard by the lower court, there is a presumption in favor of the correctness of the court's finding thereon.

Appeal from Orphans' Court, Worcester County.

"To be officially reported."

In the matter of the estate of Wilson U. Martin, deceased. Petition by E. King Wil son to rescind and annul the action of the register of wills in admitting a paper writing to probate. From the order admitting the paper to probate, and an order refusing the petition, the petitioner appeals. Appeal from first order dismissed, and second order affirmed.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ.

F. Leonard Wailes, of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, on the brief), for appellant.

Joseph B. Seth, of Easton (M. Tilghman Johnston, of Easton, on the brief), for appel

lee.

PATTISON, J. On the 17th day of February, 1919, a paper writing purporting to be the last will and testament of Wilson U. Martin, late of Worcester county, deceased, was admitted to probate in the orphans'

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

court of that county. Thereafter a petition | register of wills and the orphans' court for was filed in said court by the appellant, an Worcester county, Md., in admitting to prouncle of the deceased, by which the court bate a paper writing as the last will and was asked "to rescind and annul the action testament of Wilson U. Martin and the order of the register of wills in admitting said refusing to grant the petition of E. King paper writing to probate," and assigned Wilson to rescind the action of the register therefor the following reasons: of wills in admitting to probate said paper writing as the last will and testament of Wilson U. Martin."

It will be observed that the appeal taken on the 23d day of May, 1919, is from the order passed by the court on the 17th day of February, 1919, admitting said paper writing to probate, as well as from the order pass

"(1) That the death of the said Wilson U. Martin has not been proved as required by law. "(2) That the near relatives of the said Wilson U. Martin were not given notice as required by law that the said paper writing would be offered for probate of February 11, 1919, or February 17, 1919, or at any other time, as the last will and testament of Wilson U. Martin, and that none of the near relatives were pres-ed by said court on the 1st day of May, 1919, ent when the said paper writing was offered for probate, or admitted to probate; that no summons was ordered by said court for said near relatives, or for any of them, nor was any order of publication given requiring said near relatives, or any of them, to appear on some day fixed day to show cause wherefor the said paper writing should not be proved.

"(3) That the orphans' court for Worcester county, Md., had assumed jurisdiction of the matter, and that the register of wills for said county had no power or authority to admit said paper writing to probate during the recess of said court.

"(4) That some of the nearest relatives had advised the register of wills and the orphans' court for said county of the alleged existence of the said paper writing, and that objections would be raised to the probate thereof when presented.

"(5) That the party who had or should have had the possession or custody of the said paper writing at the time of the alleged death of the said Wilson U. Martin did not make oath that the said paper writing was the last will and testament of the said Wilson U. Martin, and that she knew of no other paper in existence at the time of his death, purporting to be his last will and testament."

Action on this petition was deferred from time to time to the 1st day of May, 1919, when the following order was passed thereon by said orphans' court:

"The foregoing petition of E. King Wilson having been read and considered, and the parties in interest heard, the prayer of the said petition is this 1st day of May in the year nineteen hundred and nineteen refused."

Thereafter, on the 23d day of May, 1919, the register of wills was directed by the petitioner to "enter an appeal to the Court of Appeals of Maryland from the action of the

refusing to rescind and annul the preceding order of February 17, 1919.

[1] The appeal from the first-named order admitting the paper writing to probate was not taken within 30 days after the date of said order-the time prescribed by statute (article 5, section 62, of the Code) in which an appeal may be taken from an order of the orphans' court-and thus the action of the court in passing such order cannot be reviewed by us upon this appeal. Culver v. Cooke, 133 Md. 686, 106 Atl. 1.

[2, 3] The appeal from the second order (May 1, 1919) was taken within 30 days after the date of such order and within the statutory period in which an appeal may be taken. But the record does not contain the facts or evidence heard by the court upon which this order refusing to rescind or annul the previous order of the court admitting said paper writing to probate was passed, although the order itself states that the parties in interest were heard. As the facts are not in the record, and consequently not before us for our consideration, we, of course, cannot upon such facts, unknown to us, determine the question whether or not the orphans' court correctly decided thereon the questions presented to it, but, as the facts were before that court and were considered by it in reaching its decision, there is a presumption in favor of the correctness of the court's finding thereon. Wingert v. Albert, 127 Md. 85, 95 Atl. 1055; Wingert v. State, 129 Md. 28, 98 Atl. 224.

It therefore follows from what we have said that the appeal from the first order will be dismissed, and the second order affirmed.

Appeal from the order of February 17, 1919, dismissed and the order of May 1, 1919, affirmed; the appellant to pay the costs.

(108 A.)

(94 Conn. 260)
MARCHIATELLO v. LYNCH REALTY CO.
(Supreme Court of Errors of Connecticut.
Dec. 22, 1919.)

1. MASTER AND SERVANT 417(4)—WORK-
MEN'S COMPENSATION; ESSENTIALS OF COM-
MISSIONER'S FINDING IN RENDERING PRO
FORMA JUDGMENT STATED.

watchman and a fellow employé were engaged in conversing.

The night watchman was on Sunday morning, October 21, 1917, engaged upon his duties, and upon a desk in the construction office at this time lay a Colt automatic pistol. This pistol had been in the construction office for a sufficient length of time, so that the fact that it was kept there was known to a number of the employés of the respondent employer, including Cote, a 15 year old boy, who acted as water and errand boy and in part as timekeeper. Cote had seen and handled the pistol before in the office. The foreman was also paymaster, and frequently had large sums of money in his possession in the construction office, and as a matter of personal protection he carried with him and kept in INJURY reach this pistol.

Under Gen. St. 1918, § 5383, as amended by Pub. Acts 1919, c. 142, § 16, finding of commissioner in rendering a pro forma judgment should omit statement of what witnesses testified to, and should include only the material and relevant facts ascertained by commissioner from the testimony, together with questions of law made by the parties and ruled upon by

the commissioner.

2. MASTER AND SERVANT 371
"ARISING OUT OF EMPLOYMENT," WITHIN
WORKMEN'S COMPENSATION ACT, DEFINED.

An injury arises out of an employment, within Workmen's Compensation Act, when it occurs in the course of the employment, and is occurs in the course of the employment, and is the result of a risk involved in the employment, or incident to it, or to the conditions under which it is required to be performed.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

3. MASTER AND SERVANT

373-WORKMEN'S COMPENSATION; INJURY FROM ACCIDENTAL DISCHARGE OF PISTOL BY FELLOW EMPLOYÉ IS ONE "ARISING OUT OF EMPLOYMENT." Where the employer knew that a foreman acting as paymaster kept pistol in the employer's office, and failed to require that the pistol be kept out of the sight of a 15 year old errand boy, injuries to a watchman from incidental discharge of the pistol while being handled by the boy was due to risk of the employment, and therefore arose out of the employment, within the Workmen's Compensation Act.

Case Reserved from Superior Court, New Haven County; John P. Kellogg, Judge.

Cote reached the office on this Sunday morning, and saw the pistol on the desk, was curious about it, and while fooling or experimenting with it, without intent on his part to do harm, the pistol went off, and the bullet penetrated the board partition separating this office from the room in which the night watchman was, and hit him while he was engaged in the course of his employment, and inflicted a wound from which he died.

Francis P. Guilfoile, of Waterbury, for plaintiff.

Wilson H. Pierce, of Waterbury, for defendant.

WHEELER, J. (after stating the facts as above). In this case the compensation commissioner made a pro forma award and filed the same in the superior court and that court, being of the opinion that the decision therein involved principles of law which were not free from reasonable doubt, and which public interest required should be determined by this court, reserved the case for the opinion of this court. General Statutes, § 5383, as amended by chapter 142, § 16, Public Acts 1919.

have omitted its statement of what different [1] The finding of the commissioner should witnesses testified to, and it should have included such facts as might have been found from this testimony. We cannot find the facts from this testimony, and hence we can

Proceeding under Workmen's Compensation Act by Angelo Marchiatello for compensation for death of her husband, opposed by the Lynch Realty Company, employer. Pro forma judgment by the compensation commissioner for employer, and case reserved to Supreme Court of Errors by the superior court. Superior court directed to remand case with instructions to make award in fa- not use it in any degree. The finding should case with instructions to make award in fa-be made up of material and relevant facts vor of plaintiff. proven before, or ascertained by, the commisMarchiatello was employed as night watch- sioner, together with the questions of law man on the premises of the respondent em-made by the parties and those ruled upon by ployer, who was engaged in erecting dwelling the commissioner. houses. The employer had a small office in [2, 3] The reservation presents a single a rather remote part of Waterbury, which question, based upon the finding of the comwas used in the work. It contained three missioner-whether the injury to Marchiatelrooms, one used at this time as a construc- lo arose out of his employment. An injury tion office, another by the foreman, who was arises out of an employment when it occurs asleep at the time in question, and the other in the course of the employment and is the room, separated from the construction office result of a risk involved in the employment by a board partition, in which the night or incident to it, or to the conditions under

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

which it is required to be performed. The injury is thus a natural or necessary consequence or incident of the employment or the conditions under which it is carried Sometimes the employment will be found to directly cause the injury, but more often it arises out of the conditions incident to the employment. But in every case there must be apparent some causal connection between the injury and the employment, or the conditions under which it is required to be performed, before the injury can be found to arise out of the employment. Jacquemin v. Turner & Seymour Mfg. Co., 92 Conn. 382, 384, 103 Atl. 115, L. R. A. 1918E, 496; Robinson v. State, 93 Conn. 49, 52, 104 Atl. 491; Mann v. Glastonbury, 90 Conn. 116, 119, 96 Atl. 368, L. R. A. 1916D, 86.

required to work, and while pursuing his work he was hit by a bullet from the pistol while in the hands of this boy. The injury was a consequence of this condition, and hence was a risk of the employment, and arose out of it.

The superior court is advised that the injury to the deceased arose out of his employment, and is directed to remand the case to the commissioner, with instruction to make an award in favor of the plaintiff in accordance with this opinion. Costs in this court will be taxed in favor of plaintiff. The other Judges concurred.

(94 Conn. 280)

HARRISON v. HARRISON.

(Supreme Court of Errors of Connecticut. Jan. 29, 1920.)

ITED TO ORDER APPEALED FROM WHERE TIME
FOR APPEALING FROM OTHERS HAD EXPIRED.

On appeal from an order modifying a judgment, the review was limited to such order where the time for appealing from the judgment and an earlier order denying a motion to modify had expired.

If an employer knows, or ought to know that an instrumentality of his business may cause injury to his employés, or that one of his employés is likely to cause injury to a fellow employé, and injury results in conse-1. APPEAL AND ERROR 876-REVIEW LIMquence of the condition of the instrumentality, or of the character or habits of the employé, the injury is a risk arising out of the conditions in which the employment is carried on, and hence arises out of the employment. The cases immediately in point are not numerous. An injury to an employé by a fellow employé when drunk, and known by the employer to be liable to get in this condition, and at such times to be dangerous, was held to arise out of the employment. McNicols' Where a divorce decree required the husband Case, 215 Mass. 497, 102 N. E. 697, L. R. A. to pay $6,000 in annual payments and $15 1916A, 306. An injury from the bite of aa week, with stay of execution until the day cat habitually kept in the place of employ-after the dates when said payments were to be ment was held to arise out of the employ-made, a modification by inserting "annual and ment. Rowland v. Wright, 1 K. B. 967.

An injury to an employé, caused by the throwing in sport and mischief of pins by a fellow workman, a practice known to the employer and not stopped, was held to be a risk of the employment as it was conducted. State ex rel. Johnson Sash & Door Co. v. District Court, 140 Minn. 75, 167 N. W. 283, L. R. A. 1918E, 502. The sport and mischief of one employé, resulting in injury to a fellow employé, cannot be held to be a risk of the employment, unless the employer has knowledge or the means of knowledge of the practice, and has failed to stop it.

The watchman was required to perform his duties under the existing conditions of the employment, which were the presence of a boy and a pistol where the watchman was obliged to work, the knowledge of the boy that the pistol was in plain view and at hand, and the knowledge of the employer that the boy was liable to handle the pistol and to cause it to go off. The placing of the pistol out of the sight of the curious boy was within the power of the employer. By his failure to exercise such control, the pistol in the place in which Cote found it became one of the conditions with which the watchman was

2. DIVORCE 286 - MODIFICATION OF DI

VORCE DECREE AS TO EXECUTION FOR ALIMO-
NY NOT HARMFUL TO HUSBAND.

weekly" before "payments" did not harm the husband, as it did not change the meaning, and any security for payment which the wife had was derived from the statute and not from the judgment.

3. APPEAL AND ERROR 544 (3)-FINDINGS

NOT NECESSARY ON APPEAL FROM ORDER MOD-
IFYING JUDGMENT WHERE FACTS ARE APPAR-
ENT OF RECORD.

On an appeal from an order modifying a di-
vorce decree, no finding was necessary under
volved were apparent upon the record.
Gen. St. 1918, §§ 5823, 5824, as all the facts in-

4. APPEAL AND ERROR
TAKEN IN
JUDGMENT.

339(5)

APPEAL

TIME FROM ORDER MODIFYING

An appeal filed August 30, 1919, from an order made July 3, 1919, modifying a judgment rendered December 8, 1916, was properly and seasonably taken.

Appeal from Superior Court, New Haven County; Howard J. Curtis, Judge.

Action by Fannie K. Harrison against Charles W. Harrison for divorce. From an order whereby the original judgment was claimed to have been materially altered to defendant's prejudice, he appeals. Affirmed.

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