Ballou v. Gile, 50 Wis. 614

Ballou v. Gile

50 Wis. 614 | Wis. | 1880

Taylor, J.

We think that, under the fifth paragraph of article 2 above quoted, it is clear that the widow and orphans’ fund was not established for the benefit of the creditors of a deceased brother, and that, if a deceased brother had no family or any other person dependent on him for support at the time of his death, no money would he due from the order to his administrator or any other person. We are also of the opinion that thi@ case comes clearly within section 4 of Law III, above quoted; that Walter H. Ballou died not having made any direction, by will, entry or benefit certificate, as to who should receive the benefit of the $3,000, and the society had the power, under that section, to pay the same to the person or persons entitled thereto. There being no children ‘or other descendants, or persons dependent upon him, except his widow, the order very properly directed the same to he paid to her. She comes within the class of persons for whom the fund was established. She 'is a widow, is a member of the family of the deceased, and dependent upon him. Iier claim to the fund would seem to be perfect.

In determining who is entitled to receive the benefits of the provisions made by a society of this kind, it is the duty of the court to construe its rules and regulations liberally to effect the benevolent purposes of the order," and in no case so to construe them as to defeat such purpose, unless the meaning of such rules and regulations is so clear and certain as to admit of no other reasonable construction. This was the rule adopted *619by this court in Schunck v. The G. W. & W. F., 44 Wis., 369, and in Erdmann v. Mut Ins. Co. of Order of Herman's Sons of Wisconsin, id., 376; and it must be adhered to in this case. Again, if the widow is not entitled to receive this money, it not appearing that there is any other member of the family of the deceased living, or any other person dependent upon him, the $3,000 would revert to the widow and orphans’ benefit fund, according to the terms of section 4 of Law III, above quoted, and in no case would the appellant, as administrator, be entitled to receive the same. This case is not, in any way, controlled by the cases in this court cited by the learned counsel for the appellant. The cases of Clark v. Durand, 12 Wis., 223; Kerman v. Howard, 23 Wis., 108; and Archibald v. Ins. Co., 38 Wis., 542, were all cases upon ordinary life insurance policies, in which, by their terms, the several companies were obligated absolutely to pay the sum mentioned therein, upon the death of the insured, to the person designated by the insured; or,'in case no one was designated, then to his personal representatives. In the present case, the association, on the death of a brother without designating any person to whom the benefit shall be paid, is bound only to pay to a member of the family, or to some other, person dependent upon the deceased; and, in case there be no such person, is not bound to pay at .all. We think the true meaning of the word “dependent,” in this connection, means some person or persons dependent for support in some way upon the deceased; and as the proof shows that there was no other person so dependent upon the deceased except the widow, the money must be paid to her. And this is especially so in a contest between the widow and the administrator of the deceased, who, if he takes the money at all, must take it for the creditors, and the person entitled to his estate by law, whether such person be of the family of the deceased or dependent upon him or not.

The fact that the association has paid the money into court, instead of paying it directly to the widow, to avoid litigation *620with the other claimants, can make no difference as to the rights of the persons claiming the same. If the appellant could not have recovered this money in a direct action against the association, he cannot recover it in this action. The association not having, for prudential reasons, paid the money to the party entitled thereto, the court must see that it is paid out as directed and required by the rules and regulations of the society; and, as we have said, according to such rules and regulations the widow in this case is clearly entitled to the money. It is quite immaterial whether the local council or the supreme council have the right, under the rules and regulations of the order, to direct to whom the money shall be paid in case the brother has failed to designate the person in the manner prescribed by such rules. The money having been paid into court, the court must now determine who is the proper person to receive it, irrespective of the action of either council. Whether the local council at Oshkosh had or had not the power to determine to whom the money should be paid, we are gratified to learn that the opinion of this court is in accord with the opinion of such council.

By the, Oourt. — The judgment of the circuit court is affirmed.