189 F. 347 (2nd Cir. 1911), 289, Robinson v. Mutual Reserve Life Ins. Co.

Docket Nº:289, 290, 292.
Citation:189 F. 347
Party Name:ROBINSON v. MUTUAL RESERVE LIFE INS. CO. SCOVILL v. SAME.
Case Date:July 17, 1911
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 347

189 F. 347 (2nd Cir. 1911)

ROBINSON

v.

MUTUAL RESERVE LIFE INS. CO.

SCOVILL

v.

SAME.

Nos. 289, 290, 292.

United States Court of Appeals, Second Circuit.

July 17, 1911

         This cause comes here upon appeal from final decree distributing the funds of defendant, an insolvent insurance company, among the several claimants. The company is the one which was before the Supreme Court in Polk v. Mutual Reserve Life Insurance Company, 207 U.S. 310, 28 Sup.Ct. 65, 55 L.Ed. 222. The opinions of the Circuit Judge dealing with the questions raised on this appeal are reported in 175 F. 624, and 182 F. 850.

         See, also, 175 F. 629.

Page 348

         Sewell T. Tyng and John T. McGovern, for appellants Turley & Turley, Loring, and others.

         Charles T. B. Rowe (Frederick A. Card, of counsel), for appellants Carroll and Fitzgerald.

         Gilbert E. Roe (Roe & McCombs, of counsel), for appellant Dogge.

         Miles M. Dawson, for appellant Campbell.

         Van Iderstine & Barker, for appellants Robinson, Whipple, and others.

         Thomas Carmody, Atty. Gen., and William A. McQuaid and Robert P. Beyer, Deputy Attys. Gen., for the People.

         Wm. Beverly Winslow, for appellees Robinson and Scovill.

         John M. Scoble, for appellees Catoe and others.

         Before LACOMBE, COXE, and NOYES, Circuit Judges.

         LACOMBE, Circuit Judge.

         The special master's report has marshaled the facts exhaustively; his report and the two opinions of Judge Ward contain all that it is necessary to say, since we concur fully in the conclusions expressed in the decree. Upon the argument our first impression was rather adverse to the proposition that the reserve fund created by the members of the old association could be made immune as against the claims of general creditors. But

Page 349

an examination of the various New York authorities which have been cited satisfies us that associations such as this may, if they choose, create just such a trust which shall be devoted to the payment of 'assessments,' thus benefiting living members, or to the payment of 'death losses,' thus benefiting beneficiaries. All persons giving credit to such a corporation are chargeable with knowledge that a certain part of its income from assessments may be thus set aside. These authorities further indicate that the question whether or not such a trust has been created is one to be determined in each case from an examination of the Constitutions, by-laws, certificates, etc., of the particular company under consideration. The analysis of these documents in the special master's report fully supports the conclusion that the funds, identifiable as part of the old reserve fund, which have come into the possession of the receiver,...

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