McCarthy v. Supreme Lodge New England Order of Protection

• Decision Date: 27 February 1891
• Citation: 153 Mass. 314,26 N.E. 866
• Parties: McCARTHY et al. v. NEW ENGLAND ORDER OF PROTECTION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 314

26 N.E. 866

McCARTHY et al. v. NEW ENGLAND ORDER OF PROTECTION et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1891

COUNSEL

J.A McGeough, for plaintiffs.

E Avery and P. Webster, for defendant Judge.

OPINION

MORTON J.

The statute in force at the time the defendant corporation was organized provides that "a corporation organized for any purpose mentioned in section 2 may, for the purpose of assisting widows, orphans, or other relatives of deceased members, or any persons dependent upon deceased members, provide in its by-laws for the payment by such member of a fixed sum, to be held by such association until the death of a member occurs, and then to be forthwith paid to the person entitled thereto." Acts 1882, c. 195, § 2. It is evident from the language here used that, while widows orphans, or other relatives may be "persons dependent upon" a deceased member, it is within the contemplation of the statute that a person may be dependent upon a deceased member who is not a widow, or orphan, or relative of such member, and that it is one of the objects of the statute to provide that such persons may share in the benefits of the association which may be organized under it. The purpose seems to have been to provide that "widows, orphans, or other relatives," whether dependent or not, might be designated as beneficiaries, and that any other person who is dependent upon a member, although not a widow, or orphan, or other relative, may also be designated by him as a beneficiary. Acts 1877, c. 204, § 1; Pub.St. c. 115, § 8; Acts 1882, c. 195, § 2; Acts 1888, c. 429, § 8. Nor is there anything in the statute which requires that the dependent person should be legally or wholly dependent upon a member. On the contrary, the enumeration of the classes of persons who would be legally dependent upon a member, followed by a phrase distinctly intended to include other persons, would seem to establish conclusively that legal dependency was not the test. Nor can it be justly said that if the beneficiary is dependent in part he or she is not dependent. Cases will readily occur to one in which persons are partly supported or partially assisted by others. It would be giving an unnecessarily harsh construction to a statute which the court has said should be construed "liberally, and in such a manner as to carry out the benevolent purpose sought to be provided for," to hold that such cases were excluded from it. American Legion of Honor v. Perry, 140 Mass. 580, 5 N.E. 634. Trivial or casual, or, perhaps, wholly charitable assistance would not create a relation of dependency within the meaning of the statute or by-laws. Something more is undoubtedly required. The beneficiary must be dependent upon the member in a material degree for support or maintenance or assistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral or legal or equitable grounds, and not upon the purely voluntary or charitable impulses or dispositions of the member. American Legion of Honor v. Perry, supra; Bac.Ben.Soc. § 261; Ballou v. Gile, 50 Wis. 614, 7 N.W. 561.

Applying these considerations to the case before us, we think it is clear that Miss Judge was dependent upon McCarthy, within the meaning of the statute and of the by-laws of the corporation both at the time when the certificate was taken out and at the time of his death. From October, 1888, up to the time of his death in August, 1889, she received from him weekly from two to five dollars towards her support, in addition to her own wages, which averaged during the same time $4.38 per week. The sums which she thus received from him contributed in a material degree to her maintenance. The chief justice who heard the case found as a fact that what she earned at Fleming's per week "was less than she had been accustomed to earn as table girl, and less than she could live on as she had been accustomed to live, and less than she could comfortably live on, and that the contributions of money by McCarthy while she was working at Fleming's were reasonably necessary for her comfortable support during that time." He also found that McCarthy's "promise to give her money was understood by both to have been made and accepted because...