The opinion
Decided 19 February, 1900.
On Motion for Rehearing.
[ 59 Pac. 1109 .]
Per Curiam.
5. The petition for rehearing in this case is denied. The matters referred to therein did not escape the attention of the court. The ignorance of the officers of the local lodge of their duties, the failure of the installing officer of the society to instruct them therein, and the failure of the order to furnish blank forms for a change of beneficiary, did not relieve Mr. Keliher from a substantial compliance with the rules of the order governing the matter of a change of beneficiaries, of which he had knowledge, because they were expressly made a part of his contract. As said in the original opinion, “The issue in this case is to be determined on the question as to whether Keliher himself performed the acts required of him, and, as he did not, there is no alternative but to reverse the decree, and award the fund to Mrs. Keliher, the party named in the benefit certificate.”
Rehearing Denied.
Mr. Schuyler G. Spencer, for the motion.
Mr. Martin L. Pipes, contra.
Decided 26 March, 1900.
On Motion to Modify the Degree.
[ 60 Pac. 563 .]
Per Curiam.
6. The application of the respondents Dunning & Campion, and of appellants Sealy, Mason & Company, made since the decision, for an order remanding this suit to the court below, to enable them to relitigate their claims to the fund in controversy, is denied. The decree of the court below was against them, and they have acquiesced therein. Although parties to the appeal, neither appeared in this court, by brief or counsel, to question the correctness of the decree, or to contest the claims of the other appellants. The only parties appearing here as claimants to the fund are the guardians of the minor children of Keliher on the one side and Mrs. Cosgrove and H. E. Edwards on the other. The assignment from Mrs. Keliher to Mrs. Cosgrove is admitted to be valid by the only party to this appeal who has any right to question it, and, as between her and Edwards, there is no contention.
7. In regard to the matter of interest, it appears that after the entry of the decree in the court below, the guardian of James, Mary, and Josephine Keliher received of the fund in controversy $2,157, and the ■guardian of Catherine Annie Brandes $719, and it is claimed that they ought to be charged with interest thereon. From the showing made, it appears that the guardian of Catherine Annie Brandes has received no interest whatever upon the money paid to her, but that it has remained in the bank upon deposit, awaiting the termination of this appeal; and therefore she ought not *515 to be charged with interest. The amount received by the guardian of James, Mary, and Josephine Keliher was mingled with the other funds belonging to her wards, and a portion, at least, put out at interest. But it is impossible to tell from the evidence before us what amount of interest has been received by her on account of such fund. Whatever interest she has so received, if any, less the expense incident to the management of the fund, ought to be paid over by her to the successful parties on this appeal. As this cannot be ascertained upon the showing made, it is thought best to refer the question to the court below for determination, and it is so ordered.
Motion Overruled.