Supreme Council American Legion of Honor v. Perry

• Citation: 140 Mass. 580,5 N.E. 634
• Parties: SUPREME COUNCIL AMERICAN LEGION OF HONOR v. PERRY and others. HICKS, Ex'r, v. PERRY and others.
• Decision Date: 11 January 1886
• Court: United States State Supreme Judicial Court of Massachusetts

140 Mass. 580

5 N.E. 634

SUPREME COUNCIL AMERICAN LEGION OF HONOR

v.PERRY and others.

HICKS, Ex'r,

v.PERRY and others.

Supreme Judicial Court of Massachusetts.

Filed January 11, 1886.

The facts appear in the opinion.B.F. Brickett and C.H. Poor, for Augusta F. Wallace.

S.A. Abbott and S.H. Pearl, for administrator of Betsey Perry, for administrator of estate of Emily A. Morse and Lydia M. Perry.

GARDNER, J.

The plaintiff in the first case is a corporation organized for the purpose of co-operative insurance, belonging to that class of corporations mentioned in Pub.St. c. 115, §§ 9, 10, and St.1882, c. 195. From the report of facts it is evident that the plaintiff must have organized under St.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 bylaws for the payment, by each member, of a fixed sum, to be held by such associations until the death of a member occurs, then to be forthwith paid to the person or persons entitled thereto.” This is substantially the same as section 8, Pub.St. c. 115. The plaintiff made certain by-laws, after which Samuel B. Perry became a member. He named as his beneficiary in his application for membership his wife, Carrie E. Perry. By the terms of the certificate issued to him by the plaintiff $1,000 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 codicil, and being at the time of his decease engaged to be married to the defendant Augusta F. Wallace, to whom he bequeathed said $1,000.

1. The first question raised is whether Samuel B. Perry could dispose of this money by will. The statute under which the plaintiff is organized gives it authority to provide for the widow, orphans, or other dependents upon deceased members, and provides that such fund shall not be liable to attachment. The class of persons to be benefited is designated, and the corporation has no authority to create a fund for other persons than the class 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 no event, unless absolutely required by its language, to construe it so as to defeat such purpose. We think, therefore, that Samuel B. Perry was not empowered to bequeath the 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;S.C. 10 N.W.Rep. 217.

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 Samuel B. 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 Samuel to support or provide for her. She does not come within the class of persons which, if able, he was bound by law to support. Pub.St. c. 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 on him. In Ballou v. Gile, under similar by-laws to those of the plaintiff association, the court said: “We think the true meaning of the word ‘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 that 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 review it. As the plaintiff's by-laws provide that, in the event of the death of all of 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 deceased member; and as it appears by the report that the judge 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 heir at law, and dependent upon him; and inasmuch as the above provision in said by-law is in conformity to the statute,-the decree of the superior court must be affirmed.

The second case, in many respects, is similar to the one we have been considering. The association known as the Knights of Pythias was organized, under the statutes, before September, 1879. One of the certificates of membership, granted to Samuel B. Perry in September, 1879, by...