Arthur v. Odd Fellows Beneficial Ass'n

Gilmore, J. If the will of the testator controls the fund in question at all, it must do so either because it bequeaths to the plaintiffs property belonging to the testator, or because it constitutes an execution in their favor of the power of direction or appointment given to the testator by one of the provisions of the 21st section of the laws and regulations of the association. These laws and regulations determine the rights of the members and the association, and may be enforced by the-parties or beneficiaries according to their respective rights,, as therein provided. . The contract which the testator, as a member, made with the association respecting the fund in question, was not made in his own behalf, or for his personal benefit, but for the benefit of his family or heirs after his death. In no event could the fund have become the property of the testator, nor could it in any event have been claimed by his executor or administrator as assets belonging to his estate for by the terms of the 21st section of the laws and regulations of the association, if the testator had left neither of the relatives named in the section, the i’esidue of the fund, after the payment of the funeral expenses, was to be paid to the lodge of which he was a member, to be placed in the ■widows and orphans’ fund. This being the case, the will of the testator devising and bequeathing to his children “ my estate and property, real, personal, and mixed,” did not affect the fund in question, or pass the same to his chil [561] dren as a bequest of property; for, as has been said, the fund was not the testator’s property in any sense of the term. But by the provisions of the 21st section of the laws and regulations, the fund in question, on the decease of the testator, was to be paid to his “ widow, children, mother, sister, father, or brother, and in the order named, if not otherwise directed by him previous to his death.” While the purpose to which the fund was to be applied, in the absence of directions to the contrary, is here clearly expressed, the testator was impliedly clothed with the power to change the order in which the relatives named should take the' fund, by a proper direction or appointment. Can the language of the will, devising to his children “ my estate and property, real, personal, and mixed,” be regarded as the execution of this power of direction or appointment ? We think not. When the mode in which a power is to be executed is not defined, it may be executed by deed or will, or simply by writing; but every instrument executing a power should mention the estate or interest disposed of, and it is best, but not indispensable in all cases, to declare it to be made in the exercise of the power. “In the ease of wills it has been repeatedly declared, and is now the settled rule, that in respect to the execution of a power there must be a reference to the subject of it, or to the power itself, unless it be a case in which the will would be inoperative without the aid of the power, and the intention to execute the power became clear and manifest.” 4 Kent, 334. “ If the will be made without any reference to the power, it operates as an appointment under the power, provided it can npt have operation without the power. The intent must be so clear that no other reasonable intent can be imputed to the will; and if the will does not refer to a power, or the subject of it, and if the words of a will may be sat-isfied without supposing an intention, to execute the power, [562] then, unless the intent to execute the power be clearly expressed, it is no execution of it. Ib. 335. There is no reference to the power, or the subject of it, in the will before us ; nor is there anything in the case indicating that the will would be inoperative without the aid of the power. On the contrary, the testator was seized of both real and personal property that passed under the provisions of the will, w'hereby the words of the will were fully satisfied without supposing an intention to execute the power. If there was no execution of the power of direction or appointment contained in the 21st section of the laws and regulations of the association, the other provisions of the section control the fund, and give it to the widow of the testator, who is named as the first iu order, and therefore the preferred beneficiary. There is no error iu the judgment of the district court. Motion overruled.