O'Brien v. Massachusetts Catholic Order of Foresters

Loring, J. In contemplation of law the only interest in the death benefit which the deceased (John F. O’Brien) had was a power of appointment and the power of appointment which he had was a limited one. He was limited in making the appointment to his widow, children, relatives or dependents. If the deceased had undertaken to make an appointment of the death benefit to and among his creditors it would have been an appointment outside the class to which he was limited and void. The appointment to Donovan (who was within the class) on Donovan’s agreeing to apply the amount of the death benefit so far as it might be necessary to the payment of his (O’Brien’s) debts, was an attempt on O’Brien’s part to do by indirection what he — 82 — could not do by direct appointment in favor of his creditors and was equally void. By the terms of the agreement between O’Brien and Donovan, Donovan was to hold the balance left after paying O’Brien’s debts in trust for the plaintiffs. It is not necessary therefore to decide whether the appointment to Donovan was wholly void or was void only so far as O’Brien sought to secure payment of his debts out of the fund. And decisions to each proposition are equally in point. In re Cohen, [1911] 1 Ch. 37. Duke of Portland v. Topham, 11 H. L. Cas. 32. In re Perkins, [1893] 1 Ch. 283. In re Kirwan’s Trusts, 25 Ch. D. 373. Sadler v. Pratt, 5 Sim. 632. Bruce v. Bruce, L. R. 11 Eq. 371. Pryor v. Pryor, 2 DeG., J. & S. 205. Carver v. Richards, 1 DeG., F. & J. 548. In re Marsden’s Trust, 4 Drew. 594. Daubeny v. Cockburn, 1 Meriv. 626. The defendant Donovan has based his contention to the contrary upon the decision in Kerr v. Crane, 212 Mass. 224. But the question here presented was not before the court in that case. In that case, as in the case at bar, there was an appointment to one within the class for the benefit of one outside the class. In that respect the two cases are alike. But when that has been stated the similarity between the two cases is at an end. In Kerr v. Crane the person who was entitled to the death benefit in case no legal designation was made agreed to the designation made by the deceased outside the class when that designation was made. In addition to that she intervened in the suit of Kerr v. Crane and asked to have that agreement carried into effect. That suit was a suit brought to prevent one within the class (who had been designated as a beneficiary for the benefit of one without the class) keeping the money for himself when the person entitled in the absence of the legal designation intervened in the suit and asked to have the designation outside the class carried into effect. But the suit now before us is a suit by those entitled in case no legal designation is made to secure for themselves the death benefit which under the arrangement with Donovan was a fraud upon their rights. The case of Kerr v. Crane, ubi supra, is not fully reported; for some of the facts to which we have referred above resort must be had to the original papers. The finding of the judge “that said O’Brien had no intent to evade the laws of the Commonwealth of the constitution and by — 83 — laws of the defendant corporation, and that in making said designation he acted under advice of counsel,” is of no consequence. His act was an evasion of the laws of the Commonwealth and of the constitution and by-laws of the defendant corporation. The fact that counsel wrongly advised him to the contrary and the fact that he believed that counsel’s advice was right did not change the character of the designation or appointment made by him. See in this connection Ulman v. Ritter, 72 Fed. Rep. 1,000; Rodgers v. Pitt, 89 Fed. Rep. 424; Royal Trust Co. v. Washburn, Bayfield & Iron River Railway, 113 Fed. Rep. 531; Green v. Griffin, 95 N. C. 50; McKillop v. Taylor, 10 C. E. Green, 139. The second, third and ninth rulings asked for should have been given and the exceptions must be sustained. It appears from the bill of exceptions that the findings which have been made dispose of the whole controversy. We are therefore of opinion that acting under St. 1913, c. 716, § 3, we should now direct that a final decree be entered. It has been agreed among the parties that the $1,000 (the amount of the death benefit certificate) should be paid without costs or interest and that the defendant corporation should not claim its costs. The decree to be entered should declare that no legal designation in favor of his creditors was made by the deceased during his lifetime and should direct the defendant corporation to pay the $1,000 to the plaintiffs. It is So ordered. Memorandum. On the fourth day of January, 1915, the Honorable Henry Newton Sheldon resigned the office of a Justice of this court, which he had held since the eighteenth day of October, 1905.