Ellerbe, Superintendent of Insurance v. The United Masonic Benefit Association; Cannon, Intervenors

• Citation: 21 S.W. 843,114 Mo. 501
• Parties: Ellerbe, Superintendent of Insurance, v. The United Masonic Benefit Association; Cannon et al., Intervenors, Appellants
• Decision Date: 13 March 1893
• Court: Missouri Supreme Court

21 S.W. 843

114 Mo. 501

Ellerbe, Superintendent of Insurance, v. The United Masonic Benefit Association; Cannon et al., Intervenors, Appellants

Supreme Court of Missouri, First Division

March 13, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

W. H Miller and Dickson & Smith for appellants.

(1) The circuit court erred in overruling the exceptions of intervenors to the report of the commissioner, and in refusing to decree the sum of $ 4,282.89 to be a trust fund in the hands of plaintiff for the payment of intervenors' claim, and in failing to give intervenors a lien thereon prior to the claims of other persons. 2 Story's Equity Jurisprudence [13 Ed.] sec. 1231, p. 577; Pinch v Anthony, 8 Allen, 536; 1 Jones on Liens, sec. 37, p. 26; Van Alen v. Bank, 52 N.Y. 1; People v. Bank, 96 N.Y. 32; St. Louis v. Johnson, 5 Dillon, 241; Schiernberg v. Stephens, 32 Mo.App. 314; Matter Equitable Ass'n, 61 Hun, 299. (2) Intervenors are entitled, under the contracts evidenced by the certificates in evidence, to the fund in question. Any statute which seeks to make disposition of said fund otherwise than as provided by said certificates, impairs the obligation of the contracts created by said certificates, and is void. Story on the Constitution [5 Ed.] sec. 1385; Edwards v. Kearzey, 96 U.S. 595; State v. Miller, 50 Mo. 129; Jackson Place Skating and Bathing Rink, 52 Mo. 552; Nilson v. County of Chariton, 60 Mo. 386.

Huff & Hereford for respondent.

Section 5934 controls the distribution of funds of this company, and intervenors are entitled only to pro rata payment. Ellerbe v. Mut. Aid Ass'n, 106 Mo. 13.

OPINION

Brace, J.

The appellants, intervenors herein, are the beneficiaries and their representatives of the three certificates of membership mentioned in the agreed statement of facts, on which the issue was tried below, and which is submitted here, as follows:

"That on the second day of January, 1883, the Masonic Mutual Benefit Society of Missouri issued to James W. Cannon three certificates of membership, number 354, class 5, number 1237, class 5, and number 1929, class 5, in the said Masonic Mutual Benefit Society of Missouri; that said Masonic Mutual Benefit Society of Missouri ceased to exist, to-wit, in the year 1887, and was then succeeded by defendant, the United Masonic Benefit Association of Missouri, a corporation duly incorporated on the day of , 1887, under the laws of the state of Missouri relating to assessment life insurance companies, and, from said day of , 1887, up to the date of its dissolution, engaged in doing a life insurance business on the assessment plan, which said last mentioned association assumed all the liabilities of said Masonic Mutual Benefit Society of Missouri, including the said certificates issued in favor of said James W. Cannon.

"That James W. Cannon died on the twenty-first day of May, 1891; and that on the twenty-ninth day of June, 1891, proper proof of the death of said James W. Cannon, as required by said certificates, was made and filed in the office of the secretary of said defendant in the city of St. Louis, Missouri; that on, to-wit, December 21, 1891, assessment numbers six and seven were levied on the members of defendant for the purpose of paying certain claims mentioned in said assessment, among them being an amount, under death number one thousand and sixty-three, on account of the death of said James W. Cannon, for the sum of $ 5,000, said sum of $ 5,000 being the amount to which said intervenors were entitled under said certificates; that, during the months of December, 1891, and January, 1892, there was collected by defendant, and by it received, on account of said assessment numbers six and seven and for the purpose of paying the claims mentioned therein, the sum of $ 12,300.50; and said sum of $ 12,300.50 was by said association deposited in bank in its general account, together with funds received from other assessments; that there was paid out of said sum of $ 12,300.50 the following death claims mentioned in said assessments numbers six and seven, namely William M. Young, $ 1,000, O. J. Kerby, $ 2,000, and E. C. Starin, $ 2,000; that out of said sum of $ 12,300.50 so collected under said assessment numbers six and seven there was paid by defendant certain expenses amounting to the sums of $ 239.23 and $ 2,278.38, leaving a balance remaining in bank to the credit of said company, realized under said assessment, numbers six and seven, the sum of $ 4,782.89, which amount was a part of the general deposit of said company at the time of its dissolution.

"That the claim of intervenors arising under said three certificates, by reason of the death of said James W. Cannon, is the oldest death claim existing against defendant for which an assessment was ever levied or collected. And the proof of death of said James W. Cannon is the oldest proof of any death, the claim for which is unsettled.

"That on the twenty-ninth day of January, 1892, plaintiff, as superintendent of the insurance department of the state of Missouri, filed in said cause his petition stating that defendant was insolvent and praying that it be dissolved and its assets turned over to plaintiff for distribution according to the statutes of Missouri in such cases made and provided; that on, to-wit, the first day of February, 1892, defendant was adjudged to be insolvent by this court and was dissolved, and its assets ordered turned over to plaintiff for distribution.

"That the assets of defendant were turned over to plaintiff as such superintendent of insurance, and among said assets was the said sum of $ 4,782.89, which had been collected and received by defendant under said assessments numbers six...