Frowert v. Blank

• Decision Date: 20 April 1903
• Docket Number: 256
• Citation: 54 A. 1000,205 Pa. 299
• Parties: Frowert v. Blank
• Court: Pennsylvania Supreme Court

54 A. 1000

205 Pa. 299

Frowert v. Blank

No. 256

Supreme Court of Pennsylvania

April 20, 1903

Argued January 15, 1903

Appeal, No. 256, Jan. T., 1902, by Isaac B. Barrett, receiver of the Order of United Friends, from order of C.P. No. 2 Phila. Co., March T., 1899, No. 675, dismissing exceptions to auditor's report in case of Charles G. Frowert v. Hannah Blank et al. Affirmed.

Exceptions to report of auditor Charles Henry Jones, Esq.

The facts appear by the opinion of the Supreme Court.

Errors assigned were in dismissing exceptions to auditor's report.

The assignments of error are overruled and the decree is affirmed.

Hampton L. Carson, with him M. W. Van Auken, for appellant.

Joseph A. Slattery, with him Joseph Savidge, for appellee.

Before MITCHELL, DEAN, FELL, MESTREZAT and POTTER, JJ.

OPINION

MR JUSTICE MESTREZAT:

The Imperial Council of the Order of United Friends was a corporation created by and under the laws of the state of New York, with its principal place of business in the city of Albany in that state. It was a fraternal beneficial association without capital stock, and was authorized to insure its members against death and disability. To meet the liabilities thus incurred, it had power to make and levy the necessary assessments upon its members. Of the membership about 900 resided in Pennsylvania and nearly 5,000 elsewhere. Dr. Charles G. Frowert, a citizen of Pennsylvania, residing in Philadelphia, was the imperial treasurer of the corporation. The association, being insolvent, presented a petition to the supreme court of the state of New York, sitting at Albany, praying for the dissolution of the corporation and the appointment of a receiver of its property and effects. The court granted the prayer of the petition and, on April 11, 1899, appointed Isaac B. Barrett the receiver of the corporation. At this time Dr. Frowert, as imperial treasurer, had in his hands on deposit in the Third National Bank of Philadelphia, $32,175.49, collected from assessments upon all the members of the association, which sum he had received from the imperial recorder who resided in the city of New York. There were then about sixty-five death claimants, and only fifteen of these resided in Pennsylvania. On a bill filed in the court of common pleas No. 2 of Philadelphia county, on April 17, 1899, by Dr. Frowert, Isaac N. Solis was appointed ancillary receiver of the association in Pennsylvania. After paying the claims of certain attaching creditors out of the fund in his hands, Dr. Frowert paid the balance to the ancillary receiver. The latter having subsequently filed an account, the common pleas appointed an auditor to distribute the money in his hands. There were two claimants of this fund: one, Isaac B. Barrett, the New York receiver; the other, the creditors of the association residing in Pennsylvania. These creditors were beneficiaries of the corporation under certificates which had been issued to members of the order who subsequently died. The auditor awarded the fund to the creditors and the court below affirmed his adjudication. The receiver has appealed and alleges that the court below erred in not awarding the fund in the hands of the accountant to him as "receiver appointed in the state of New York, of the Order of United Friends." This is the only question in the case.

Solis v. Blank, 199 Pa. 600, decided by this court two years ago, was a bill filed by Dr. Frowert to restrain the prosecution of certain writs of foreign attachment which had been issued in the common pleas of Philadelphia county by Pennsylvania creditors against the funds in his hands as imperial treasurer, and for the appointment of an ancillary receiver of the association. The court refused the injunction but appointed Solis ancillary receiver of the corporation and directed Frowert to pay to him such moneys in his hands as were in excess of the amounts required to satisfy the claims of the attaching creditors. The judgment of the court below was affirmed, and we there held that the beneficiary named in the contract in this case becomes, after the death of the principal, a creditor of the association and that the appointment of a receiver of a foreign corporation by a court of the state of its domicile does not defeat foreign attachments issued in Pennsylvania by Pennsylvania creditors after the appointment of the receiver. In the present case the learned counsel for the appellant asks us to decide that the holders of matured certificates, who were determined in Solis v. Blank to be creditors of the association are not business creditors and hence do not have the rights of such creditors to participate in the fund for distribution. His argument is based upon the proposition that "in point of fact, they (the beneficiaries) are but 'representatives' of deceased members of a beneficial association." We have ruled directly the reverse of that proposition and for that reason have held the beneficiary under the matured certificate to be a creditor of the corporation. In discussing the right of the beneficiary to the fund secured by the certificate and the relation of the deceased member to it, in Hamill v. Supreme Council, 152 Pa. 537, Justice GREEN said: "The deceased never had any right to the benefit which was to be paid to his wife. It was hers and hers only, payable to her exclusively, and, of course, no one but she could maintain any action for its recovery. She is a living person and no other person ever had or could have the right to recover this money. As between her and the defendant there is a clear contention as to whether the funds shall be paid by the defendant to her, and there is no contention, and cannot be, upon that subject, as between the defendant and the legal representatives of the deceased. The plaintiff is not such a representative. She takes, if she takes at all, in her own right alone as the beneficiary of the fund, and she does not represent any right or interest of her deceased husband in the fund. She represents herself and her own rights only in the subject in controversy." We have no doubt that on the death of a member of the...