73 Me. 299 | Me. | 1882
In 1846, one Bolton married the plaintiff in Boston, and on the same day went with his wife to the homestead of his father, in Manchester, where they resided and cohabited about eight months, when they moved to Lowell, where they resided and kept house some four or five months, during the latter part of which period, a child was born to them. Soon afterward, they removed with their child to Manchester, where they continued to reside some less than a year, when Bolton left his family say
In 1862, Bolton, so far as the forms of law are concerned, married the defendant in Boston, where they resided and cohabited except while at sea, until November, 1867, when they moved to Augusta in this State, where they continued to reside until his death, the defendant never having heard of his marriage with the plaintiff, during his lifetime.
In October, 1877, Bolton was duly made a member of the "Kennebec Masonic Belief Association,” and in August, 1878, of the "Mechanic Falls Masonic Belief Association,” in each of which he continued in good standing, until his decease.
On June 3, 1879, Bolton died; and on the eleventh day of the same month, ¿lie defendant received from the former association, as the benefit due to Ms widow by virtue of his membership, the-sum of four hundred and forty-eight dollars, and on the twenty-fourth, from the latter association the sum of one thousand dollars.
On October 21, 1879, the plaintiff brought this action to recover the sums thus received by the defendant, and alleged in her specifications filed under the count for money had and received, that the defendant obtained the money from each of the associations by "falsely and fraudulently representing herself to be the widow of Bolton.” And at the trial, the presiding justice instructed the jury, against the contention of the defendant, that it was not necessary for the plaintiff to prove the allegation of fraudulent representation on the part of the defendant.
The -defendant also contended that the associations were benevolent and charitable in their purpose and character, and not speculative; that one of them was incorporated under the provisions of B. S., c. 55, against which no action could be maintained by the plaintiff or defendant by reason of § 5 ; that the payment to the defendant by the associations was voluntary, in the nature of a gift; and that the plaintiff could not maintain this against the defendant in any event wMch the presiding justice overruled; whereupon the defendant alleged exceptions.
. 2. Is the Kennebec Masonic Eelief Association such a corporation as is contemplated by E. S., c. 55, § 5 ? We have no doubt that it is not. But if it were, that fact could have no bearing upon this action, since the terms of the statute apply only to members of the association and the corporation itself, and neither of these parties is a member. Even if it had adopted the name of benevolent or charitable, instead of relief association, it could make no difference. Its name would not necessarily fix or establish its real legal character. When occasion requires, the law looks through or behind the names of things and passes its judgment upon their substance. Governors, etc. v. Am. Art Union, 7 N. Y. 228; State v. Citizens' Benefit Asso. 6 Mo. App. 163. If the prevalent purpose and nature of an association, of whatever name, be that of insurance, the benevolent or charitable results to its beneficiaries would not change its legal character. And that this association, et id omne genus are mutual life insurance companies, we entertain no doubt whatever.
The text books, as well as the opinions of various courts, contain definitions of the contract of insurance as it is applied to its various subjects; and although differently expressed, they all concur as to its substantive elements, that all that is essential to such a contract is the payment of a consideration by one party, and the promise of the other to pay an agreed amount upon the happening of the contingency specified in the contract, it being understood that the former party had an insurable interest in the subject-matter insured. Commonwealth v. Wetherbee, 105 Mass. 160.
By the provisions of the by-laws of the Kennebec Masonic Eelief Association, any member of a lodge of masons within this State, not over sixty years of age, may become a member thereof, by presenting his application stating therein certain specified facts, and the certificates prescribed, and paying a membership fee of two dollars. And on the receipt • thereof, his name is placed on the list of members and he becomes " entitled to all the
Bolton’s application, after reciting the-facts necessary to show his eligibility, promised to abide by the by-laws, etc., pay promptly any assessment authorized thereby, and in default thereof to forfeit his membership, and authorized the secretary to sign his name to the by-laws.
The substance of all which is : Each member, when accepted, pays his membership fee of two dollars, and promises to'pay the further sum of one dollar and ten cents whenever any other member dies, or forfeit his own claim to a benefit. And in consideration thereof, the association agrees that within thirty days- after the proof of the death of a member, it will pay to his "widow,” as many dollars, not exceeding one thousand, as there are surviving members at the time of the death. The interest of the member in his own life, supports the contract. Campbell v. N. E. Mut. L. Ins. Co. 98 Mass. 381.
To be sure the association takes no note of the modern science of biological contingencies, but each applicant, regardless of age up to sixty years, if otherwise eligible, becomes a member by contributing the same sum to the general fund, and his beneficiary draws substantially the same amount, thus adopting the old original simple principles of life insurance, and making the association a mutual co-operative life insurance body. "This is not the less a contract of mutual insurance upon the life of the assured, because the amount to be paid by the corporation is not a gross sum, but
There are large numbers of similar associations in the various states, known by different names but governed by like rules, all recognized as mutual life insurance companies when before the courts. Citizens’ Benefit Asso. 6 Mo. App. 163; State v. Bankers’ etc. Benefit Asso. 23 Kans. 499; Folmer’s Appeal, 87 Pa. St. 133 ; Fairchild v. N. E. M. L. Asso. 51 Vt. 613; Schunck v. Gegenseitiger, &c. Fond, 44 Wis. 369; Erdmann v. Mut. Ins. Co. etc. 44 Wis.; Maryland Mut. Ben. Soc. v. Clendenien, 44 Md. 429; Arthur v. Odd Fel. Ben. Asso. 29 Ohio St. 557, 376; Ken. Mas. Ins. Co. v. Miller, 13 Bush. (Ken.) 489; Masons’ Benev. Soc. v. Winthrop, 85 Ill. 537; Same v. Baldwin, 86 Ill. 479 ; State v. Merchants’ Mut. Ben. Soc. 25 Al. L. J. 427.
The association in hand being an insurance company, is not within the provisions of E. S., c. 55, § 5 ; and the contract not being under seal, the party for whose benefit the promise was made might maintain an action upon it. Hinkley v. Fowler, 15 Maine, 285. The payment by the association to the defendant was not, therefore, voluntary and in the nature of a gift, but as the intended fulfilment of a contract of insurance, entered into between Bolton and the association for the benefit of his "widow;”
Plaintiff’s exceptions. The plaintiff contended that the contracts of insurance between the associations and Bolton were in writing, and unambiguous; and that being in terms payable to Bolton’s "widow,” the plaintiff, who was his only legal widow, was entitled to the benefits.
But the presiding justice, entertaining the opinion that the extrinsic facts of Bolton’s marriage and long cohabitation with the defendant, etc. developed such an ambiguity in the meaning of the word "widow” as used in the contract to designate the person entitled, as to authorize the jury to determine from all the testimony in the case, which of the two persons, plaintiff or defendant, was, in the contemplation of Bolton and the associations, intended by the designation of "widow.” And he accordingly instructed them : "If you find from the evidence in the case that it was in the contemplation of James H. Bolton and either of the associations, that the benefit was to be for the defendant with whom he was then living as his wife, that she was to be treated and recognized as his widow, in case he died leaving- her, and if it was in the contemplation of the parties that she was to be treated as the person designated as his widow after his death, it is competent for you to find for the defendant; and this, notwithstanding there was- no written designation of the person to whom the money should be paid. That provision of the by-laws applies to a case where a member of the association designates some person other than the one named or designated by the association as the person to receive the benefit.”
While the law will not admit parol testinaony to contradict or otherwise vary written contracts, capable of a clear and intelli
When a written instrument, free from doubt on its face, is thus brought into contact with surrounding circumstances, a doubt sometimes arises as to which of a plurality of persons or of things, each answering the words of the writing, the parties intended to designate. Such a contract is said to contain a latent ambiguity. An ambiguity, because the word about which the doubt arises has two meanings, and latent because it does not appear upon reading the instrument, but is developed when it comes to be applied to the persons or things to which it refers. And being developed by evidence dehors other evidence of the same character is admissible to solve the doubt. Add. Cont. 147. As where a bequest was made to the "Am. Tract Society” and extrinsic evidence disclosing two societies of the same name, other parol evidence was admitted to show which was in the testator’s mind. Bodman v. Am. Tract Soc. 9 Allen, 447. So where a sealed contract speaks of "David’s deed,” and it appeared by
Before extrinsic evidence can be admitted, the word or phrase concerning which the doubt is raised must apply to each of the 'two ór more persons with legal certainty (1 Greenl. Ev. § 290, -and cases there cited. Cotton v. Smithwick, 66 Maine, 367 ; Pickering v. Pickering, 50 N. H. 350; 1 Jarm. Wills, (R. and T. ed.) 743, *429 and notes) ; or "equally well” (Stephens’ Dig. .Ev. § 8) ; or with "equal propriety or with legal certainty.” 1 Redf. Wills, 560, § 7. The language must be interpreted according to its proper acceptation, unless the context of the instrument has otherwise defined it, and shows that it is susceptible of some more popular interpretation reconcilable with extraneous facts. 1 Jarm. Wills, (R. and T. ed.) 726, 730; Stephens’Dig. Ev. Art. 91, § 5.
Sir J. Wigram expresses the principle thus: "A testator is ¡always presumed to use the words in which he expresses himself ¡according to the strict and primary acceptation, unless from the ■context of the will it appears that he has used them in a different ■sense.” Prop. 1. There is no word or phrase in this contract of insurance which shows that the parties to it intended the word '"widow” to be used in any other than the legal sense, a woman whose husband is dead. It could not legally apply to the defendant, in this state; for here there can be but one widow' of a •deceased husband. To be sure, so far as the mere forms of law are concerned, she was married to Bolton and lived in adultery with him ever after until he died; but the formal marriage was absolutely void and would not save her children (if she had any) from illegitimacy, or confer upon her any derivative pauper set
And "where there is nothing in the context of a will from which i.t is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and when his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict primary sense, and in no other, although they may be capable of some popular or . secondary interpretation and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered. Wig. Prop. II.
The foregoing rules find numerous illustrations in the construction of wills wherein legacies and devises are given to a " child” or "children” of some person named and such person has legitimate and illegitimate child or children, in which case the legitimate and not the illegitimate issue take. The word " children ” it is said means prima facie legitimate children, as much so as if the word "legitimate” were written before it. Lord Hatherley, in Dorin v. Dorin, Eng. & Ir. Ap. Cas. 568; Hill v. Crook, L. R. 6 H. L. Cas. 268; Gardner v. Heyer, 2 Paige Ch. 10, 13; Cromer v. Pickney, 3 Paige Ch. 461, 475; Collins v. Hoxie, 9 Paige Ch. 81, 88. Where a testator has had two illegitimate children by a woman, married her, and the next day made his will leaving to her his. property with "liberty to dispose of it amongst our children” by will, and should she make no will, expressed the desire "that the property at her death be equally divided between my children by her,” and no children were born after the marriage, but he always treated the illegitimate children as his own; it was held that the illegitimate children took nothing. The Lord Ch. (Caines,) said: "The will upon its face constrains no departure from what is the ordinary and prima facie legal meaning of the word 'children.’ There is no case whatever which would enable us, in the interpretation of this will, to strain the word 'children’ beyond its legal meaning.” Lord Hatherly said: "The only mode in which the word' children’ can be made to bear a different sense from that which is its first legal.
So in the older case of Hare v. Lloyd, 1 T. and R. 693, Lord Eldon said: "I have not the least doubt that this testator meant illegitimate children, but I am clearly of the opinion that there is not enough on the face of this will to authorize me to
1. That illegitimate children may take by any name or description which they have acquired by reputation at the time of making the will, but,
2. They are not objects of a gift to children or issue of any other degree, unless a distinct intention to that effect be manifest upon the face of the will; and if, by possibility, legitimate children alone would have satisfied the terms of such gift, illegitimate children cannot take,” etc. 821-2. See also, Stephens’ Dig. Ev. 148 (h.). So "next of kin” prima facie means legitimate kindred. In re Standley’s Est. 1 L. R. 5 Eq. 303.
The same principles apply to wife or widow. See In re Davenport’s Trust, 1 Sm. and Gif. 126, which is quite fully stated in Wig. Wills, 76, in note.
"These rules may be safely applied, mutato nomine, to all other private instruments.” 1 Greenl. Ev. § 287, and note 1.
Our opinion, therefore', is, that assuming the plaintiff to be, what the jury found, the "widow” of Bolton, she is by the terms of the contracts entitled to the benefits sued for, since he could leave but one widow in this monogamia state; and that the presiding justice should have given that instruction instead of the one hereinbefore recited.
We need not consider the other questions raised by the exceptions of the plaintiff.
Plaintiff’s exceptions sustained.