The personal representative of a decedent may maintain any action founded upon contract which could be maintained by the decedent if he were alive. Code Civil Proc. § 1582. But Frank Swift, if alive, could not maintain an action against the association of which he was a member for the recovery of the sum of $10,000 sought to be recovered in this action, unless the members of the association were associated in a business transacted by them in the name of the association in which they contracted to pay.

The complaint affirms, and the answer denies, that the members were associated in business, "and transacted and carried on the business of the buying and selling mining and other stocks at the city and county of San Francisco under the common name of the 'San Francisco Stock & Exchange Board.'" Upon the issue thus joined the court finds

"That the defendant is not, and was not at any of the times mentioned in the complaint, an organization of persons, or composed of persons who are, or at any of the times mentioned in the complaint have been, associated in business, or who transact or carry on the business of buying or selling mining or other stocks, or any other business, at the city and county of San Francisco, or elsewhere, under the common name of the San Francisco Stock & Exchange Board,' or under any other name, or at all."

This finding is attacked as unsustained by the evidence; but it is unquestionable that the main objects of the association are the establishment of a mart for the sale and purchase of stocks and exchange by the members for their individual gain or loss, and the creation of a trust fund for the benefit of surviving wife or children, etc., of deceased members; and the evidence shows that, in pursuit of those objects, the association rents and furnishes a hall in which the members meet at stated hours of the day, and engage in individual transactions with each other, under and in accordance with the rules and regulations adopted by them for that purpose; and that the rent of the hall, together with the incidental expenses connected therewith, are paid out of fees collected by the association for the listing of stocks and dues and fines collected from its members; but these things are done merely for the convenience of the members, and as incidental to the primary objects of the association. Lafond v. Deems, 8 Abb. (N. C.) 344. The collection of these fees, fines, or dues does not constitute a business in which the members participate in the way of profit or loss as partners or otherwise; and when collected they do not constitute property in which the members have a right to any proportional part of it. "The association is, therefore, not a partnership. It does not share in the losses of the individual associates; each member takes his own gains and incidentally sustains the losses incident to his engagement. * * * There are no profits earned to be divided among its members, nor are there any losses to be borne arising out of the acts of the joint body. * * * The association looks to a continued existence, unaffected by the death, resignation, v.8P,no.2-7

suspension, or removal of its members. If it was a copartnership, the retirement or death of one of its members would ipso facto dissolve it." White v. Brownell, 3 Abb. Pr. (N. S.) 323. "Nor do the members, as stockholders, hold any interest in the property derived from the collection of fees, dues, or fines. Such property is a mere incident and not the main purpose or object of the association. A member has no severable proprietary interest in it, or a right to any proportional part of it upon his withdrawal, removal, or death." Dos Passos, Stock Ex. 15. And the bond of association contained in the articles of agreement contains nothing which binds the members, in the associate name, to pay a sum of money to any member, or do any act or thing from which a promise to pay a sum of money to any member or members in personam would be implied. In other words, there is no promise, express or implied, by the members, collectively or individually, in the name of the association, out of which springs a personal obligation in favor or any member, for a breach of which an action would be maintainable against the association by a member in his life-time, or by his personal representative after his death.

But it is urged that the association transacted the business of life insurance of its members, because section 23 of the constitution, as amended in 1875, required a candidate for the benefit of the trust fund to file with the secretary of the board a medical certificate attesting his fitness to be accepted by the board as a participant in the "life insurance fund;" and it is argued from this article that the members of the association are associated in the business of life insurance, and transact such business in the common name of the association. Reading together sections 22 and 23 of the constitution, we find nothing which justifies the conclusion that the association, in connection with the fund in controversy, is engaged in transacting an insurance business. There is no contract of insurance between the members. The constitution merely provides for a beneficiary fund, and for the payment out of the fund of a specified sum to the surviving or designated person or persons qualified to receive it upon the death of a member. The term "life insurance" does not apply to such an object. Barboro v. Occidental Grove, 4 Mo. App. 429. So, in Durian v. Central Verein, 7 Daly, 168, it was held that where a beneficial society by its constitution provides for the payment of a specified sum to the wife upon the husband's death, such right is not in the nature of an insurance upon the husband's life, and the society may, by a subsequent change in its constitution or by-laws, make the money payable to some nominee of the husband other than the wife. And, in distinguishing between an association whose primary object was contracting with its members for the insurance of their lives, and an association organized for a social, literary, or benevolent purpose, to which a feature of mutual insurance is added for the purpose of mutual aid, the supreme court of Missouri hold that the latter cannot be said "to be carrying on the business of insurance, and with which,

we suppose, it was not the intention of the legislature to interfere." State v. Benefit Ass'n, 6 Mo. App. 172. See, also, Lafond v. Deems, supra. I therefore think that the acts performed by the association in carrying out the purposes for which it was established are not done in the transaction of a business carried on in the name of the association for the profit or loss of its members. It rents rooms, employs officers, fixes fees and dues, imposes fines, and collects them; and when the retirement or death of a member renders it necessary to elect a successor by the sale of his place in the board, or to levy an assessment for the purpose of making payment out of the trust fund of the donation provided by the constitution to the surviving members of the family or designated appointee of the deceased member, it sells the one and enforces the collection of the other from the members “in like manner and under the same penalties as other dues."

But all these things, although in the nature of business, do not in themselves constitute a business for the transaction of which the members have associated themselves in the name of the association. They are merely incidental to the primary objects of the association. Yet while no contractual obligations in personam bound the members of the association, as partners or otherwise, for transacting a business in the common name of the association for their profit or loss, there spring from the articles of agreement obligations incidental to the creation of rights for the benefit of others and of duties imposed upon the association in connection with the fund provided for such rights, in the event of the death of any one of the members. These are rights which arise out of the executory contract between the association and the members in favor of surviving members of the family of a deceased member, or the persons or objects designated by him before his decease, according to the provisions of the constitution, as beneficiaries of the trust. If such surviving or designated beneficiaries exist upon the death of a member, the rights to the beneficiary fund vest in them, and the corresponding duty is imposed upon the association to pay to them out of the fund the sum agreed to be paid. But the articles of agreement provide that such payments "shall be deemed absolute donations to the persons, or for the object to which the same are made or applied, free from all claim or control from any other source or persons." The beneficiaries are, therefore, the only persons qualified to receive a "donation" out of the fund; it does not belong to the estate of the deceased member, and is not chargeable with the payment of his debts. So, in an action brought to determine the right to a beneficiary fund, payable by an association upon the death of one of its members, under a constitution which provided "that on the death of a member in good standing a beneficiary fund shall be paid to the person or persons named by the decedent, and entered by his order on the will-book, "the supreme court of Michigan held that the fund payable on the death of a member of the association to persons named by him is not to be treated as part

of his estate subject to his debts, and does not go to the administrator, but should be paid directly to the beneficiaries. Catholic Ben. Ass'n v. Priest, 46 Mich. 429; S. C. 9 N. W. Rep. 481. To the same effect will be found Ballou v. Gile, 50 Wis. 614; S. C. 7 N. W. Rep. 561; Vollman's Appeal, 92 Pa. St. 50; Masonic Mut. L. Ins. Co. v. Miller, 13 Bush, 489; Arthur v. Odd Fellows, 29 Ohio St. 557. As, therefore, the beneficiary fund of the association was no part of the estate of one of its deceased members, but belonged to the surviving or designated donees of the fund, it follows the testator had no interest in it upon which a will could operate; and the executors are not entitled to recover it as part of the estate of their testator.

Yet while the testator had no personally enforceable right or interest in the fund itself, he had, under the constitution of the association, a power of appointment,-authority to designate the ultimate beneficiary. But that was a power exercisable by him, and if not exercised prior to his death, the power and authority died with him. Nobody representing him could exercise it after his death. If, upon his death, there were no survivors and no persons or objects designated to take, he had nothing in the fund which would descend or upon which his will could operate. "His contract," says the supreme court of New York, “effected that result. * The condition of payment to which he agreed was that the money should be paid out of the fund to the person designated by him before his decease." Hellenberg v. I. O. of B. B., 94 N. Y. 585, 586. It may be conceded that a member of the association, in the exercise of this power of appointment, could designate his administrator or the executors of his will, or any person or objects as the recipients of his bounty; and the question arises whether the testator, by his will, designated the executors as beneficiaries of the trust fund. The court finds:

* *

"Said Frank Swift did not, in or by his last will and testament, or otherwise, or at all, designate any person or persons, or any object or objects, to whom or to which the sum of ten thousand ($10,000) dollars, or any part thereof, mentioned in and provided for by article 22 of constitution of said association should be paid; that * * * he did not, in or by said last will and testament, or otherwise, designate said sum of ten thousand ($10,000) dollars, or any part thereof, as included in or belonging to the estate of which by said will he was making testamentary disposition."

This finding is also attacked as unsustained by the evidence. The question of designation must be determined by the will itself, for it is the only evidence in the case of an exercise of the power of appointment. In the will the testator makes no mention of the trust fund, except incidentally, in connection with an estimate of the value of his estate. After making specific bequests to the amount of $60,000, he adds:

"Should my estate be worth more than $60,000, (and I now estimate it at $80,000, including my seat in the San Francisco Stock & Exchange Board and the insurance on my life by said board,) I give, bequeath, etc. * * *

And the balance of my estate I desire paid over to my mother, *** and by her distributed among the poor in any manner she may see proper.

It might well be inferred from this language that the testator intended to mix what he supposed to be his interest in the trust fund of the board with his estate, for the purpose of exercising over it, as part of his estate, his disposing power. But, as we have seen, he had no disposing power over it as part of his estate. The only power exercisable over it was that defined by the constitution of the board, and that was merely a power of appointment of some person or body to receive it as a thing distinct and separate from his estate. Undoubtedly the testator might have exercised this power of appointment of a person to receive the fund and apply it to the purposes of his estate in his will, and he could have designated in that way his executors or any other persons; but the will does not name the executors or creditors or legatees, jointly or individually, as persons to receive payment of the "donation" for the purposes of his estate or otherwise. And for aught that appears in the case itself the estate of the testator is sufficient to meet all the special bequests of the will. That being so, the beneficiary fund did not pass, either by the special bequests or the residuary clause of the will, as part of the estate of the testator, and the will itself did not operate as a valid execution of the power of appointment. In the case of Maryland Mut. Dener. Soc., etc., v. Clendinen, 44 Md. 429, the testator, at the time of his death, was a member in good standing of an incorporated benevolent society, which, by its constitution, provided, upon the death of any member, for the payment of a fixed sum "to the widow, child, children, or such person or persons to whom the deceased may have disposed of the same by will or assignment." The testator left neither widow nor children, but by his will he bequeathed as follows: "After the payment of all my just debts and funeral expenses out of my estate, I devise as follows: I give and bequeath the entire residue of my estate to my three sisters," etc. The administrator claimed that the money passed by the will, and that he was entitled to recover it as assets of the estate, but the court held that the fund assigned by the charter to the widow and children of the deceased, or his legatee or assignee, was not assets recoverable by the administrator, that the jus disponendi given by the charter was a mere power, and that the will was not a valid exercise of the power; the intention to exercise it not being expressed, and it not appearing that there was no other estate upon which it might operate. In default of appointment the trustees of the fund would not be justified to pay. By the articles of agreement they were bound to pay to the surviving members of the family entitled to payment, or to the person or object designated for that purpose. The contract was to pay to no one else; and if there were no survivors to take, and no persons or objects designated, the trustees were not bound to pay at all. Judgment and order affirmed.