Wolf v. District Grand Lodge No. 6, I.O.B.B.

• Decision Date: 25 September 1894
• Court: Michigan Supreme Court
• Parties: WOLF v. DISTRICT GRAND LODGE NO. 6, I. O. B. B.

60 N.W. 445

102 Mich. 23

WOLF v. DISTRICT GRAND LODGE NO. 6, I. O. B. B.

Supreme Court of Michigan

September 25, 1894

Error to circuit court, Kent county; William E. Grove, Judge.

Action by Gustave A. Wolf, administrator, against the District Grand Lodge No. 6, Independent Order B'nai B'rith. There was a judgment for defendant, and plaintiff brings error. Reversed.

Walker & Wolf, for appellant.

Maurice M. Houseman, for appellee.

McGRATH C.J.

The Independent Order of B'nai B'right is a fraternal organization. Defendant is one of a number of subordinate organizations known as "district grand lodges," having authority to institute lodges, and exercising certain independent powers not in conflict with the laws promulgated by the parent organization. Each district grand lodge has jurisdiction over certain lodges in its district, and each district seems to have carried on within itself, entirely independent of the parent organization and also of the other districts, a system of insurance on the assessment plan. Applications for membership in the order are made in writing to the local lodges, in which the applicant is required to state his age, residence etc. Certain past officers of the local lodges become members of the district grand lodge of that district, with the right to sit and debate, but without the right to vote. Each lodge in the district elects a representative to its district grand lodge, and that body, so constituted, legislates for the district. In case of the death of a member of a lodge, that lodge reports such death to its district grand lodge, and the amount is assessed, upon a per capita basis, upon each lodge in the district in proportion to the endowment members in such lodge. The funds are forwarded to the district grand lodge, and paid by it. No certificate or policies are issued.

The defendant is incorporated under the statutes of Illinois relating to "corporations not for pecuniary profit." The act provides that "associations and societies which are intended to benefit the widows, orphans heirs, and devisees of deceased members thereof, and where no annual dues or premiums are required, and where the members shall receive no money as profit or otherwise, shall not be deemed insurance companies." Laws 1874, p. 74. In Rockhold v. Benevolent Soc. (Ill. Sup.) 21 N.E. 794, the Illinois court held that, while the language quoted from the act was "in form expository," yet the powers of the corporation were defined and determined thereby. The same court, in Association v. Blue, 120 Ill. 121, 11 N.E. 331, held, under a similar statute, that the language conferred the power on a member to name any stranger as a beneficiary. The parent organization has a constitution which is known as the "Constitution of the I. O. B. B." This constitution contains no reference whatever to the endowment feature. The articles of association of the defendant body were filed January 27, 1878, and are as follows: "We, the undersigned, Charles Koz minski, Herman Felsenthal, Adolph Loeb, and Philip Stein, citizens of the United States, propose to form a corporation under an act of the general assembly of the state of Illinois entitled 'An act concerning corporations,' approved April 18, 1872, and that for the purpose of such organization we hereby state as follows, to wit: (1) The name of such corporation is District Grand Lodge No. 6, I. O. B. B. (2) The object for which it is formed is the practice of charity, and the promotion of humanity and enlightenment, in harmony with the constitution, laws, and tenets of the Independent Order of B'nai B'rith, the performance of all acts believed to accomplish these ends, and the securing to widows, orphans, heirs, and devisees or deceased members of said order in said district No. 6 an endowment in accordance with the laws of said grand lodge. Said corporation is not, and shall not be, for pecuniary profit. (3) The management of the aforesaid district grand lodge shall be vested in eleven managers, who are to be elected annually. (4) The following persons are hereby selected as the managers to control and manage said corporation for the first year of its corporate existence, viz.: Charles Kozminski, R. Reichman, D. M. Amberg, Philip Stein, B. H. Seligman, Adolph Loeb, E. Rubovits, S. Benjamin, David Adler, Samuel Glickauf, and John M. Levy. (5) The location is in the city of Chicago, in the county of Cook, state of Illinois." The defendant body has, however, what is termed a "Constitution," two sections of article 10 of which are as follows: Section 6 provides that "the widow of a member in good standing shall be endowed. If there be no widow, all his children shall be endowed. If there be no widow or such children or parent, then the endowment shall go to the reserve endowment fund, unless such member shall have formerly designated a beneficiary or beneficiaries in a book to be kept for that purpose by the lodge, recording therein in his own handwriting, or causing the same to be done at his request, before two witnesses, the name of such beneficiary; but the testamentary disposition of the endowment, brought to the notice of the trustees, shall be respected and carried out by them, provided that such testamentary disposition be confined to the children, parents, brothers, or sisters of the deceased brother in good standing or to the reserve endowment fund." Section 9 provides that "any applicant for membership above the age of forty-five years, if elected a member, shall be excluded from the benefit of the endowment law, and be under no obligation to comply with its requirements: provided that this section shall not apply to applicants for membership by card." A lodge of this order was instituted at Grand Rapids, June 6, 1875. The by-laws of the lodge contain no reference to a will book, nor to the age of applicants, except that candidates for membership must be 21 years of age, nor do they intimate who may or who may not be beneficiaries. Section 1 of article 9 provides that "the fees for candidates for membership shall be sixteen dollars, of which five dollars shall be paid on application, ten dollars for degrees, and one dollar to be sent to D. G. L. for endowment fund;" while, under the constitution of the parent organization and that of the district grand lodge, two classes of members were possible, viz.: (1) Members having received degrees, and entitled to all rights and benefits, except participation in the endowment fund; and (2) members entitled to all the rights and benefits of the first class, and also the right of participation in the endowment fund. Yet the by-laws of Grand Rapids contemplated but one class, and that the latter.

Solomon Wolf, plaintiff's intestate, who resided at Saugatuck, made a written application to said lodge for membership July 11, 1875, was elected, received the degrees, and continued to be a member, paying dues and assessments as a benefit member, until his death, in July, 1880. He was never married, and died intestate, leaving no father or mother surviving him. He left a sister who at the time of his death resided in Germany, where she continued to reside until her death, in 1890; a brother, Jacob Wolf, who resided in Grand Rapids; and a sister who resided in Ohio. Plaintiff, a nephew, as administrator and as assignee, brings this suit to recover the death benefit. The defendant insists (1) that the 10-years statute of limitations, which was pleaded, had run; (2) that decedent had made no designation in the will book, as provided in the constitution, and left no will; and (3) that decedent was 51 years of age when he became a member, and was therefore ineligible.

As to the first point, one of the parties entitled to the fund resided in Germany when the cause of action accrued, and continued to reside there until she died, in 1890. Under How. Ann. St. � 8718, ^[1] the statute did not begin to run until her death. At her death, her interest, under our statute of distributions, would go to her brother and sister, whom plaintiff represents.

Upon the second point, it is conceded that plaintiff's intestate was 51 years of age when he became a member. It appears that decedent and his brother, Jacob Wolf, were solicited to become charter members of the lodge. Jacob became a charter member, but Solomon made written application for membership a month later. His application was referred to a committee, who reported favorably, and he was admitted. This application was not produced, or its absence accounted for. In its absence, it must be presumed that, in conformity with the requirements of the by-laws, it contained a statement of the age of the applicant, and that the age was therein correctly given. When he appeared for initiation on August 10, 1875, he was required to sign, and did sign, a "declaration," the material portion of which is as follows: "On this eighth day of August 1875, appeared Mr. Solomon Wolf for initiation in our Grand Rapids Lodge No. 238, I. O. B. B., and, having been instructed to make true answers to the questions which he would be asked, made the following declaration: My name is Solomon Wolf. I am 44 years old. I reside at Saugatuck. I am by occupation a merchant. I am not married. I am in good health. Am not aware of having any sickness or bodily infirmity. I have read the constitution of the I. O. B. B., and the by-laws of Grand Rapids Lodge No. 238, and am willing to obligate myself to observe the constitution, laws, and rules of the order faithfully." The body of this declaration is written in English, and is in the handwriting of the secretary, and the testimony tends to show that decedent could neither read nor write the English language. The material out of which this lodge was constructed was collected by...