termining the validity of contracts; but enough have been cited to show how different is the case at bar from all others that we have seen, and how obviously applicable to the contract in suit is the principle of public policy which forbids the enforcement of such contracts as may, in their nature, be injurious to the public. This is not the case of a person employed in a professional capacity to work openly and publicly in a matter of legislative concern, but of a man who agrees to furnish the testimony for a legislative investigation, in exchange for a share of the profits which such an investigation will produce to one who is favored with inside and advance information as to its probable progress and effect.

The judgment below should be affirmed, with costs.

1. Where, under the constitution of a benevolent order, every member, in case of his death, is entitled "to a receipt by his heirs" of a certain sum, the administratrix of such a member may sue to recover the fund as a quasi trustee for those represented by the word "heirs," which is not used in its technical sense, as persons entitled to inherit real estate, but as intending the next of kin entitled to the fund.

2. Where an administratrix of a deceased member of a benevolent society sues to recover the amount due to the decedent's heirs, it is no defense that the supreme lodge paid the amount of the death benefit raised by assessment on all the subordinate lodges to the trustee designated to receive it by the grand lodge of the state and the subordinate lodge of which the intestate was a member.

3. The constitution of a benevolent society provided that the applicant should state to whom the death benefit should be paid in case of his death. Decedent was a member prior to the adoption of such provision, and of another provision which excepted members of the order who were members entitled to the death benefit from the operation of the former provision. Held not to require the issuance by the society of a certificate designating the beneficiary, and showing that the member is entitled to the benefit, to one who was a member prior to such provision, as a condition precedent to an action to recover the same on his death.

4. The subordinate lodge of a benevolent society of which intestate was a member sent to the supreme lodge a death notice, reciting that he had paid up to the time of his death all

1. See Insurance, vol. 28, Cent. Dig. § 1994.

dues, "and is therefore entitled to a benefit in the sum of $1,000." The defendant levied the assessment, raised the amount, and transferred it to the selected trustee in the state of New York. Held an admission of the liability of the defendant in an action by the administratrix of the deceased member to recover such fund.

Appeal from supreme court, appellate division, First department.

Action by Mary Pfeifer, administratrix of Hynek Opitz, against the Supreme Lodge of the Bohemian Slavonian Benevolent Society of the United States. From a judgment of the appellate division (77 N. Y. Supp. 1138) affirming a judgment for defendant, plaintiff appeals. Reversed.

Paul Jones and Francis J. Nekarda, for appellant. Michael Schaap and Edward Hymes, for respondent.

BARTLETT, J. There is no disputed question of fact. The defendant is a mutual benevolent society, having among other objects that of mutual aid of its members in sickness and in death. The provision in case of the death of a member is secured by a system of insurance for which provision is made in the constitution and by-laws. It is stipulated: That the intestate, Hynek Opitz, be came a member of this order January 3, 1880, and continued in that relation until his death, June 28, 1892; he then being 42 years of age. Notices of his death were sent to the supreme lodge, the defendant herein, by the subordinate lodge and the grand lodge of the state of New York, respectively, informing the defendant of Opitz's death. That after the receipt of these notices by the defendant, it duly levied and apportioned an assessment among all its subordinate lodges for the purpose of raising $1,000, death benefit. That this sum was raised, and placed in the hands of a trustee designated to receive it by the grand lodge of the state of New York and the subordinate lodge of which the intestate was a member. The appellate division affirmed, without opinion, the judgment of the trial term dismissing the complaint on the merits, adopting the opinion of the trial judge.

The grand lodge of the state of New York, when notifying the defendant of intestate's death, stated, among other things, that he was accepted in its lodge on the 4th day of January, 1880, and had paid up to the time of his death all dues, and was entitled to a benefit in the amount of $1,000. The subordinate lodge of which he was a member also made a like statement when giving notice of his death to the defendant.

The trial judge, after holding that this action was properly instituted as to parties, decided that the intestate clearly came within the general provisions of the constitution and by-laws, requiring, as a condition precedent, every one who desired benefits to apply

for a certificate, in which he must designate the person or beneficiary to whom the insurance was to be paid. The counsel for the defendant further insists that, in any event, the collection of this insurance fund cannot be made by the intestate's administratrix, but the action should be brought by his next of kin. In Bishop v. G. L. E. O. of M. A., 112 N. Y. 627, 20 N. E. 562, a very similar situation was presented. In that case the action was brought by the widow, as administratrix of the intestate, who was entitled individually, with her two infant children, to the fund. While the question was not technically raised in this court as to the right of the plaintiff to maintain the action, the court nevertheless decided it. The court there said: "It is true, the fund does not come into her hands technically and strictly as assets of the estate of her intestate, nor is it to be liable for his debts. But the plaintiff, in her capacity as administratrix, represents both herself and those others who are entitled to receive the fund as its intended beneficiaries, for it comes to them by reason of the membership of the deceased, and the plaintiff is a quasi trustee for her children, and, as administratrix, represents them in this action." So in the case before us, under the constitution (article 6, subd. "b," "Benefits in Case of Death," § 1), it is provided "that every member who has become entitled to the death benefit (before he has reached the age of forty-five years) in accordance with the provisions and rules of this division, and who complies with their requirements, is entitled in case of his death to the receipt by his heirs of one thousand dollars from this order when the fact of his death has been ascertained by an official death certificate." The plaintiff, as administratrix, is a quasi trustee for those who are represented by the word "heirs," which is not used in its strictly technical sense, as representing persons entitled to inherit real estate, but, rather, as indicating the next of kin entitled to the fund.

The counsel for the defendant makes the further point that the supreme lodge of the United States, sued in this action, is not a proper party; that having raised money by assessment from subordinate lodges, and sent it to the trustee authorized to hold the same in the state of New York, its responsibility is at an end. The learned trial judge, whose opinion was adopted by the appellate division, has considered in detail the provisions of the constitution and by-laws, and reached the conclusion that, reasonably interpreted in favor of the insured, the defendant rests under the obligation to see that the fund reaches the proper beneficiaries. We agree with the opinion of the trial judge in this respect, adopt its reasoning, and will not repeat it in detail at this time.

We are unable to agree, however, with the learned court below in its decision that the issuing of a certificate designating a beneficiary was a condition precedent to a re

covery. The appellant argues that, as the intestate had been in contract relations with the defendant for about 11 years when the constitution and by-laws were adopted at the Iowa convention of 1891, the obligations of that contract could not be impaired by the subsequent enactments. This is the undoubted rule of law, but, as the respondent makes answer that the plaintiff has set up the existing constitution and by-laws in her complaint, we will rest our decision upon her rights thereunder. We have already quoted from the constitution (article 6, subd. "b," "Benefits in Case of Death," § 1), that “every member who has become entitled to the death benefit (before he has reached the age of forty-five years), in accordance with the provisions and rules of this division, and who complies with their requirements, is entitled, in case of his death, to the receipt, by his heirs, of one thousand dollars from this order, when the fact of his death has been ascertained by an official death certificate." The defendant relies upon article 6, § 4, of the constitution, reading as follows: "Every one who desires to become entitled to these benefits must make a written application to his lodge and produce a physician's certificate, of the form provided by the supreme lodge, and must state to whom the death benefit shall be paid in case of his death. The lodge shall send such application to the secretary of the supreme lodge, who, if he finds the physician's certificate satisfactory, shall issue a certificate showing that the said member is entitled to the said benefit. This certificate shall be attested by the secretary and president of the supreme lodge. No member shall be considered entitled to this benefit until this certificate shall have been approved by the supreme lodge and properly attested." From these provisions it is argued that the certificate indicating the beneficiary is a condition precedent to any right of action against the defendant in case of the death of a member. The fallacy of this argument is shown by article 6, § 8, which reads: "To members of the order who are members entitled to the death benefit, before the adoption and entrance into effect of the provisions of this article, the supreme lodge shall, without exception, issue certificates without expense. To that end all applications with the name of the heir must be made within sixty days after this constitution goes into effect." We thus have existing members clearly excepted from the operation of section 4. It is true that section 8 provides that applications, with the name of the heir, must be made by existing members within 60 days after the constitution goes into effect, but there is no penalty in case this is not done, while the earlier portion of the section imposes upon the supreme lodge the duty to issue the certificates without exception or expense. It is also to be observed that the certificate to be issued by the supreme lodge is not required to contain the name of the heir, as the section,

strictly read, requires that the application shall contain this information. Further, it will be seen that section 8 recites, "members entitled to the death benefit," showing that existing members, who had paid their dues, and were in good and regular standing, were entitled to the benefits of this insurance. The provisions of section 4 and 8 make clear the meaning of section 1, already quoted. That section evidently contains a provision intended to indicate the beneficiaries, in a general way, who were to take in case the deceased member had made no designation. As we have already suggested, the word "heirs," is equivalent to next of kin in this connection. The constitution and by-laws are inartificially drawn in many respects, and require liberal judicial construction in favor of the insured. The construction sought to be given by the defendant to the provisions of the constitution already quoted is exceedingly narrow, and results in a forfeiture of vested rights, which the law does not favor. The intestate had been a member of this order for upwards of 12 years at the time of his death, had regularly paid his dues, and thereby assisted in paying death losses during that entire period. The result reached by the construction of the defendant is unjust in the extreme, and can only be permitted by a court of law when the language admits of no other conclusion. It seems quite impossible that it should have been the design of the drafters of this constitution that the mere clerical act of issuing a certificate to the insured was a condition precedent to the recovery of the death benefits by his next of kin. If such a provision were presented in definite terms, it would be a mere trap for the heedless and ignorant, and calculated to defeat the benign objects of this charitable order. The officers of the defendant had but to inspect their books, or those of subordinate lodges, to acquaint themselves with the fact that possibly a very large number of members who had been paying their dues and contributing to the death losses for years had neglected to apply for a death certificate. Good faith, under these circumstances, would require that notices should be sent out to these members in default, and acquaint them with the fact that their insurance was in peril; assuming that the designation of a beneficiary was a condition precedent to recovering the insurance. We have already called attention to the fact that the death notice sent to the defendant by the subordinate lodge of which the intestate was a member, and by the grand lodge of the state of New York, recited that the intestate had paid up to the time of his death all dues, "and is therefore entitled to benefit in the amount of one thousand dollars." These recitations, taken in connection with the fact that the defendant levied the assessment, raised this amount of $1,000, and transferred it to the selected trustee in the state of New York, are clear admissions that the next of kin of the intestate were entitled to recover.

The judgment appealed from should be reversed, with costs to the plaintiff in all courts, to abide the event, and a new trial ordered.

HAIGHT, CULLEN, and WERNER, JJ., concur. GRAY, J., concurs in result. PARKER, C. J., and O'BRIEN, J., absent.

Judgment reversed, etc.

(173 N. Y. 404)

MATTESON et al. v. PALSER et al. (Court of Appeals of New York. Feb. 10, 1903.)

DESCENT OF PROPERTY-DEBTS OF DECEDENT -LIABILITY OF HEIRS WILL VALIDITYRESTRAINT ON ALIENATION-APPEAL-RE

VIEW.

1. A creditor of a decedent sued the heirs at law of two deceased sisters, as provided by Code Civ. Proc. §§ 1837-1860, to recover a deficiency arising on the foreclosure after their death of a mortgage executed by them in their lifetime to secure the payment of their note. The children of one of the co-debtors derived title to their mother's real estate as grantees under a deed made in her lifetime to a trustee, whereby she reserved the income to herself during her life, and on her death gave the remainder to her children. Held, that they were not liable for the deficiency judgment against their mother, as the heirs at law of her real estate, where there was no proof that the conveyance was made with a fraudulent intent, or that at the time the deed was executed the mortgaged property was not sufficient to pay the notes.

2. In an action to charge heirs at law with the debts of their decedent, some of the defendants were liable only as heirs of a deceased aunt, if her will devising her real estate to others should be held invalid, because of a provision that her property should be divided equally among the children of a deceased sister,. and that her executors should manage her estate and pay the income thereof to such children until the youngest survivor should arrive at the age of 30 years, when the residue was to be divided among the survivors of such children. Held that, in the absence of proof that any of the beneficiaries were under 30 years at the time of the death of the testatrix, the will was not invalid because the ownership of the personalty and the power of alienation might be suspended for five lives.

3. Plaintiff sought to recover for a debt of a decedent in an action in which he asked to have the will of the decedent held invalid, and for a decree against all the heirs at law of the decedent, as if she had died intestate. Held, that such claim was not inconsistent with a recovery against one of such heirs as a deviseeunder the will for the proportion of the debt he would have been liable to pay as an heir at law, although as a devisee he would have been. liable for a larger amount.

4. Where the question as to whether plaintiff's claim was barred by the statute of limitations was not passed upon by the trial court, and the reversal of its judgment by the appellate division is not stated to have been on the facts, the question as to the statute of limitations is not reviewable in the court of appeals.

Appeal from supreme court, appellate division, First department.

Action by Charles Matteson and others against Albert R. Palser and others. From an order of the appellate division (67 N. Y. Supp. 612), reversing a judgment in favor of plaintiffs, they appeal. Modified.

Duane P. Cobb, for appellants. John M. Stoddard, for respondent Palser. William C. Beecher and Richard B. Kelly, for respondents King.

CULLEN, J. This action is brought, under sections 1837 to 1860 of the Code of Civil Procedure (which are a substitute for the provisions of the Revised Statutes), to recover of the defendants, as heirs at law of Mary King and Martha King, deceased, the amount unpaid on a promissory note given by said deceased, with others, to the testator of the plaintiffs' assignor, one Asahel Matteson, on September 4, 1877, for the sum of $8,000, payable one year after date, with interest payable semiannually. To secure the payment of the note, the parties executed a mortgage of real property in the state of Rhode Island. Interest was paid thereon to March 4, 1898, when, default having been made, the mortgaged land was sold on October 26th of the same year, resulting in a deficiency of $2,566.77. The real property in this state upon which it was sought to charge the plaintiffs' claim came to Mary King and Martha King by the following devise in their father's will: "I give, devise, and bequeath unto my said wife, Eliza, all my estate, both real and personal, whatsoever and wheresoever, for and during her natural life, and no longer. At the death of my said wife I give, devise, and bequeath my said estate, real, personal, and mixed, whatsoever and wheresoever, unto my three daughters, Mary and Martha King and Margaret M. Palser, to them and to their heirs and assigns forever, in joint and equal proportions, share and share alike. Should either of my said daughters die during the life of my said wife without leaving lawful issue, then I give, devise, and bequeath the share or proportion of such deceasing daughter or daughters to the survivors or survivor of my said three daughters, as the case may be, and to the heirs and assigns of such survivors or survivor." The testator's widow, the life tenant, Eliza King, died May 5, 1895. Mary King, one of the remaindermen, died in the lifetime of her mother, on January 15, 1890, leaving as her only heirs at law the defendants J. Berre King, Jerome A. King, and George R. King. Martha King died May 11, 1895, without issue, leaving a will, the validity of which is challenged. Her heirs at law were two brothers, the defendant C. Volney King and one Vincent C. King, who died prior to the commencement of this action, and nephews and nieces, to wit, the three defendants King already mentioned, sons of Mary King, and the defendants Palser, the children of a deceased sister. action was brought against the defendants J. Berre, Jerome, and George King as heirs at law of their mother, Mary King, and against all the defendants as heirs at law of Martha King, the plaintiffs charging that the will of Martha King was invalid, and that the real estate passed as in case of in

The

testacy. Neither Mary King nor Martha King left any personal property within this state, nor were any letters of administration issued on their estates. The defendants answered, all pleading the statute of limitations, the children of Mary King admitting the intestacy of Martha King, while the other defendants pleaded her will, and averred that it was valid and effectual to pass the property. The trial court rendered judgment for the plaintiff as against all the defendants, holding that the will of Martha King suspended the absolute power of alienation for more than two lives in being, and was, therefore, void. In compliance with the statute, the recovery was apportioned between the several defendants according to their respective interests, proceeding on the theory that Martha King died intestate. The defendants King and the defendant George N. Palser appealed from this judgment to the appellate division, where it was reversed, and a new trial granted as to the appellants.

I shall first consider the liability of the defendants who are the sons of Mary King. It is contended by their counsel that they took as devisees under the will of their grandfather. This position cannot be sustained. The will contains a present gift to the remainderman on the death of the life tenant. That remainder was vested subject to be devested in only one contingency,-the death of the remainderman prior to that of the life tenant without issue. That contingency has not occurred, for Mary King left issue, and hence the gift over did not take effect. There is no substitutional gift in favor of the issue of a remainderman, nor does the gift over raise, by implication, a devise to such issue. It is unnecessary, however, to discuss this further, as we think that judgment was properly reversed as to these defendants for another reason pointed out in the opinion of the appellate division. Mary King in her lifetime made a conveyance of all her property to a trustee, whereby she reserved to herself the income during life, and on her death gave the remainder to her children. Her sons, therefore, did not inherit the property as heirs at law of their mother, but acquired it under the trust deed.

The learn

ed counsel for the plaintiffs contends that this conveyance was fraudulent as against Mary King's creditors. But this claim does not help them here. Under section 232 of the real property law an action may be maintained by a creditor to set aside a conveyance made by a deceased person as fraudulent, but such action must be brought, not for himself individually, but on behalf of all the creditors of the deceased, which is not the present action. Moreover, there is neither finding nor proof that the conveyance of Mary King was made with intent to defraud her creditors, and it may be that at the time of its execution the mortgaged property was amply sufficient to pay the plaintiffs' note. To determine the rights of the other de

fendants it is necessary to consider the provisions of Martha King's will, which is assailed. She first directed that all mortgages, notes, moneys, real estate, and life insurances, whatsoever and wheresoever, belonging to her should be equally divided among her three nieces and two nephews, the defendants Palser. By the seventh clause she further directed that her executors should take care of and manage the said estate, paying the income to said nephews and nieces semiannually "until the youngest survivor of my said nieces and nephews shall arrive at the age of thirty years, when I direct my executors or the survivors or survivor of them to divide and pay over the residue of my estate to my said nieces and nephews, to the survivors or survivor of them." It is contended by the counsel for the plaintiffs that by this provision the absolute ownership of the personal property and the power of alienation of the real property might be suspended for five lives, and, therefore, contravenes our statute. To this claim the appellate division answered that there was no proof as to the ages of these beneficiaries at the time of the death of Martha King, and that it might well be that none were then under the age of 30 years. The court was also inclined to think that by the proper construction of the will the term "the youngest survivor" referred to the youngest nephew or niece who might survive the testator, not the one who should reach the age of 30 years, in which view there would be no suspension for more than one life. We think the first answer of the appellate division to the plaintiffs' claim is conclusive, but refrain from passing on the second, because it appears that the question is involved in a litigation between other parties. It follows, therefore, that the plaintiffs did not establish that Martha King died intestate, and no recovery could be had against any of the defendants as her heirs at law.

For the reasons last stated, the judgment was properly reversed against the defendant C. Volney King; but should it have been reversed in favor of the defendant George N. Palser? I think there is no such inconsistency between an action under the Code to charge heirs and one to charge devisees that an action brought against parties in one capacity must necessarily fail if it appears that the property has come to them in the other capacity. The question as to the validity of a will is often, as in the present case, a very doubtful one. It is generally best determined in litigation directly between the persons who are interested in upholding it and those interested in nullifying it. I do not see why a creditor must decide that question at his peril if he establishes that in one capacity or the other, either as heir at law or devisee, the defendants are liable to respond to his claim. If the plaintiffs had recovered a larger sum from the defendant Palser as heir at law than the latter would be liable for as devisee, doubtless

the judgment establishing such liability would necessarily be reversed. But the contrary is the situation here. If the will of Martha King is upheld, the interest in her real property passing to the defendant Palser is several times as great as that which would come to him as heir at law. The will also shows that none of her real estate passed to her heirs at law, for the devise is of all. This is a full compliance with the requirements of section 1849 of the Code of Civil Procedure. The plaintiffs were satisfied with their recovery against the defendant Palser, and, as long as they were satisfied, it should not have been disturbed when the only change on a new trial would be to increase its amount.

In the opinion of the appellate division there is discussed the question whether the statute of limitations barred the plaintiffs' claim. The trial court made no finding on that subject, and, as the reversal by the appellate division is not stated to have been on the facts, the subject is not before us for review. National Harrow Co. v. Bement & Sons, 163 N. Y. 505, 57 N. E. 764. We may say, however, that the evidence clearly establishes that the plaintiffs' demand against Mary King and against her estate was barred by the statute of limitations, and equally clearly that their claim against Martha King and her estate was not so barred. The statute of New Jersey, where Martha King resided, is in effect the same as ours, and bars a claim on a simple contract for the lapse of six years. But the common-law rule prevails there, the same as here, that payments will prevent the running of the statute, as will appear by reference to the decisions of the court in that state. Martha King's letters established such payments within the statutory period.

The order of the appellate division as to the defendants King should be affirmed, and judgment absolute rendered in their favor against the plaintiffs, with costs. As to the defendant George N. Palser the order should be reversed, and the judgment of the trial court against that defendant affirmed, with costs.