Supreme Council American Legion of Honor v. Perry

Gardner, J. The plaintiff in the first case is a corporation organized for the purpose of cooperative insurance, belonging to that class of corporations mentioned in the Pub. Sts. c. 115, §§ 9, 10, and the St. of 1882, c. 195. From the report of facts it is evident that the plaintiff corporation must have been organized under the St. of 1877, c. 204, which provides that certain associations, of which the plaintiff is one, “ may, for the purpose of assisting the widows, orphans, or other dependents of deceased members, provide in their by-laws for the payment by each member of a fixed sum, to be held by such association until the death of a member occurs, then to be forthwith paid to the person or persons entitled thereto,” and such fund shall not be liable to attachment. This is substantially the same as § 8 of the Pub. Sts. c. 115. The plaintiff corporation made certain by-laws. After this Samuel B. Perry became a member, and named as his beneficiary, — 589 — in his application for membership, his wife, Carrie E. Perry. By the terms of the certificate issued to him by the plaintiff, $1000 was made payable to his wife, “ subject to such further disposal among the dependents of said Samuel as he might thereafter direct, in compliance with the laws of said corporation.” Carrie E. Perry died before her husband. He died in September, 1882, leaving a will, and being at the time of his decease engaged to be married to the defendant Augusta F. Wallace, to whom he bequeathed said $1000. 1. The first question raised is whether Samuel B. Perry could dispose of this money by will. The statute under which the plaintiff corporation is organized gives it authority to provide for the widow, orphans, or other persons dependent upon deceased members, and further provides that such fund shall not be liable to attachment. The classes of persons to be benefited are designated, and the corporation has no authority to create a fund for other persons than of the classes named. The corporation has power to raise a fund payable to one of the classes named in the statute, to set it apart to await the death of the member, and then to pay it over to the person or persons of the class named in the statute, selected and appointed by the member during his life, and, if no one is so selected, it is still payable to one of the classes named. The claim that the fund is subject to disposition by will appears to be contrary to the scheme projected by the statute. If the fund were subject to testamentary bequest, then, upon the decease of the member, it might go into the hands of his executor or the administrator of his estate, and become assets thereof, liable to be swallowed up by the creditors. Johnson v. Ames, 11 Pick. 173, 181. Osgood v. Foster, 5 Allen, 560. If there were no creditors, the member by his will could divert it from the three classes named in the statute. In either case, this would defeat the purpose for which the fund was raised and held, and would be in direct conflict with the object of the statute for which the association was formed, and would set aside the contract entered into between the member and the corporation. In determining this question, it is the duty of the court to construe the statute liberally, and in such a manner as to carry out the benevolent purpose sought to be provided for, and in — 590 — no event, unless absolutely required by its language, to construe it so as to defeat such purpose. Ballou v. Gile, 50 Wis. 614. We are therefore of opinion, that the deceased member, Samuel B. Perry, was not empowered to bequeath this fund by his last will and testament, and that the bequest of the same to Augusta F. Wallace is void and of no effect. Kentucky Ins. Co. v. Miller, 13 Bush, 489. McClure v. Johnson, 56 Iowa, 620. 2. The defendant Augusta F. Wallace contends, that, if she is not entitled to this fund under the will of Samuel B. Perry, she comes within the class of persons designated as “dependents ” upon said Samuel, and should therefore be its recipient. At the time of the decease of said Perry, a valid engagement of marriage subsisted between him and the defendant Augusta, and, by reason of this, she claims to be dependent upon him. Until they became man and wife by marriage, there was no obligation upon the said Samuel to support or provide for her. She does not come within the class of persons whom, if able, he was bound by law to support. Pub. Sts. e. 84, § 6. The mere engagement to marry imposed no obligation upon him, except to carry out his contract with her. Their mutual promise to marry did not in any sense, by itself, make her dependent upon him. In Ballou v. Gile, ubi supra, under similar by-laws to those of the plaintiff association, the court said: “We think the true meaning of the word 1 dependent,’ in this connection, means some person or persons dependent for support in some way upon the deceased.” If this interpretation is correct, then it is a question of fact, and not of law, to determine whether Augusta was dependent upon Samuel. If it is not correct, the Superior Court assumed the question to be one of fact, and so passed upon it. As matter of law, it is clear, upon the facts stated in the report, that Augusta was not dependent upon Samuel, as the term is used in the statute. The Superior Court having passed upon the question of fact, and found that she was not dependent upon him, we are bound by this decision, and cannot in this case review it. As the by-laws of the plaintiff corporation provide that, in the event of the death of all the beneficiaries selected by the member before his decease, if no other or further disposition thereof, be made, the benefit shall be paid to the dependent heirs of the — 591 — deceased member, and as it appears by the report that the presiding judge at the trial found, as matter of fact, that the defendant Betsey Perry, the mother of Samuel B. Perry, at the time of his death, was "a widow, his sole next of kin, and dependent upon him, and inasmuch as the above provision in said by-laws is in conformity with the statute, the decree of the Superior Court must be affirmed. The second case is in many respects similar to the one we have been considering. The association known by the name of the Knights of Pythias was organized under the statute before September, 1879. One of the certificates of membership granted to Samuel B. Perry in September, 1879, by the said association, sets out that, in consideration of the representations and declarations made in his application, which is made part of the contract, and the payment of the prescribed fee, and in consideration of the payment hereafter to said endowment rank of all assessments as required, and the full compliance with all the laws governing this rank now in force or that hereafter may be enacted, two thousand dollars will be paid by the said association “ to Carrie E. Perry, as directed by said brother in his application, or to such other person or persons as he may subsequently direct, by will or otherwise, and entered upon the records of the supreme master of exchequer,” upon the proof of death and the surrender of this certificate. The wife, Carrie, died before her husband, and he made no designation of any other beneficiary to receive the fund, except as contained in his last will. Before Perry died, but after the issuing of said certificate to him, the corporation made certain by-laws relating to the payment of benefit funds upon the death of a member; namely, that the fund shall be paid to the widow and children of the deceased, and if none, then to the father and mother and sisters and brothers, share and share alike, or he may name a party, at the time he becomes a member, to whom the money shall be paid at his death; if none of said persons are alive, then, after payment of the funeral expenses of deceased member, it shall be paid into the widow and orphans’ fund. The St. of 1882, c. 195, § 2, added to the classes, after the word “ orphans,” the words “ or other relatives of deceased members.” — 592 — Augusta F. Wallace, one of the defendants, claims these funds under the will of Samuel B. Perry. In this case, the contract contemplated the making of a will by Samuel. But, independently of the contract, the member could not make a testamentary disposition of these funds, as we have already seen. The will of Samuel, although it purported to bequeath these funds, did not in fact accomplish it. In this respect the will was void. The defendant Augusta also claims that she was dependent upon Samuel. The Superior Court, as the report shows, found, as matter of fact, that she was not dependent upon him, and we have decided in the previous case, that, as matter of law, the facts do not warrant us in determining that she was dependent upon him. Lydia A. Perry, one of the defendants, contends that she is entitled to part of these funds under the last will of Samuel. We have already passed upon this claim. She also asserts that she was within the class of persons, designated by the St. of 1877, c. 204, (Pub. Sts. e. 115,) and the St. of 1882, e. 195, to whom such benefit funds were payable, because she was the sister of Samuel. It is clear that sisters were not within any of the classes named in the statutes prior to that of 1882, which was approved on May 1,1882. She would be included under this last statute among the “other relatives of deceased members” therein mentioned. But this statute passed in 1882 could not affect the contract entered into under the St. of 1877, which mentioned widows, orphans, or other dependents of deceased members as the only recipients of these funds, and could not deprive the person entitled to the funds thereby from possession of the same. It was a question of fact to determine whether the by-laws of the corporation, including sisters of the deceased members as a class to receive the funds under certain conditions, were enacted after the amendment contained in the St. of 1882 took effect, and before the death of Samuel, in September, 1882. Before the St. of 1882 took effect, the St. of 1877 was in force, and the association formed under it could create funds only for the benefit of those classes named therein, and to those belonging to those classes alone could the benefit funds be paid. If the plaintiff corporation undertook to make by-laws in contravention — 593 — of the statute, they were ultra vires, and of ho effect. Briggs v. Earl, 139 Mass. 473. The Superior Court has, in effect, settled the fact, by the final decree passed therein, that the by-laws creating the new class of beneficiaries were not enacted by the plaintiff corporation after the St. of 1882 took effect. The facts relating to this matter are not reported. From the time of the decease of his wife, Carrie E. Perry, to the time of his own decease, the report finds that Samuel B. Perry resided with the defendant Emily A. Morse, and “ that she depended upon him to support her, if he was able and she was in need.” She had no property except real estate valued at about $1400, and furniture worth about $300; We cannot determine from the report of facts that she was dependent upon him, or that she was ever in need. This may depend upon many circumstances.' By the decree of the Superior Court, it must have been found by the presiding judge thereof that she was not dependent upon him. This was a question of fact, to be determined- by the Superior Court at the trial, and it is apparent that it was there determined in the negative. This disposes of all the questions argued by the three defendants Wallace, Lydia A. Perry, and the administrator of Emily A. Morse. By the will of Samuel B. Perry he gave various articles of personal property to several of the defendants, and at the time of his decease he left certain real estate. The Superior Court has incorporated in its decree the following: “ that the real estate should be sold, and the proceeds thereof applied to the payment of the debts, funeral expenses, and charges of administration.” Although all the parties to these proceedings have considered this decree as within the power and jurisdiction of the Superior Court, yet we think that this belongs exclusively to the Probate Court, to be there considered and passed upon. This decree is in effect an order, determining what the Probate Court should adjudge under the facts stated. This cannot be done by the Superior Court. The cross bill proceeds upon the ground that the executor of the estate of Samuel B. Perry received these funds, amounting to $3000, not as assets of said estate, but in trust to pay the same over to the person entitled to receive them, that they were — 594 — wrongfully paid to him, and that he does not hold them as the executor of said Samuel. So far as the decree of the Superior Court relates to this sum, we think it should be affirmed. Decrees accordingly.