Bishop Bros. v. Curphey

60 Miss. 22 | Miss. | 1882

Campbell, C. J.,

delivered the opinion of the court.

We will not be understood to assent to the proposition that an insurance association can, by any regulation it may adopt, enable insolvent debtors to invest their means in the procurement of benefits to others to be held beyond the reach of creditors contrary to the laws of this State ; but this case does not present this question. The bill is not framed to reach the assets of an insolvent debtor, attempted to be placed beyond the reach of creditors in fraud of their rights. It asserts a right to subject the fund, because of the assumption that it belonged to the debtor, and was assets in the hands of his personal representative, and, therefore, accrued to his creditors by virtue of the law. How did it belong to the debtor?' Only according to the contract made by the society, and its terms are contained in Art. IX., of the “Constitution for Sections of the Endowment Bank of the Knights of Pythias.” By this the member had only a power of appointment of the beneficiary of the benefit on his death, failing to exercise which the benefit would go to the soeiety in the situation in which this member was, without wife or child, or father or mother, or brother or sister, and exercising which, his appointee was entitled to the exclusion of all others. By the terms on which the certificate of membership was issued (which constituted the contract of the society, and fixed its liability and the right of the member and those claiming under him), creditors had no rights which they could enforce against the society, and the exercise by the member of his right to designate a beneficiary of the fund did not generate a right in creditors which they did not have before. If he had not made a will disposing of the benefit, it would, by the rules of the society, have belonged to it for the widow’s and orphan’s fund, after paying the funeral expenses of the deceased member. It was his declaration that others should have it, which prevented it going to the widow’s and orphan’s fund. It is inconceivable that his testamentary wish that certain persons should have it should have the magical effect to divert it from them to his creditors, who but for that would have had no claim on it. If it was his it would be appropriable to creditors. If it was not his and he had only a power of appointment with reference to it, his exercise of this power created no right in creditors. Without the will creditors could not reach the benefit. By it they cannot, because it devotes it to others, and the will governs.

Decree affirmed.