70 Conn. 537 | Conn. | 1898
After the report of the committee was filed in the Superior Court, Eulie M. Tolies moved to amend his statement of claim. The court denied this motion. In most cases the allowance of an amendment to pleadings is within the discretion of the court. Perhaps there is nothing in this case to take it out of the ordinary rule. We have, however, no occasion to decide, because it is agreed by counsel that this court may consider the case as though the averments of the claim were ample to admit in evidence all the facts in the committee’s report.
Daniel B. Tolies became an accepted member of the plaintiff association on the 11th day of February, 1878, and the plaintiff issued to him a certificate of membership; and there
Eulie M. Tolies, the appellant, however, Msists that the judgment is erroneous by reason of other matters which, he says, ought to be considered. In Ms statement of his claims made m response to the order of interpleader, he abeged in paragraphs 8 and 9: “8. Prior to January 1st, 1894, and thereafter, the said Daniel B. Tobes became sick, despondent, and unable to work, and in consequence thereof lost Mterest m his membersMp m said association, and said membersMp was then in danger of lapsing and the proceeds thereof were in danger of being lost to said beneficiaries. 9. Under these circumstances, and as a matter separate and distinct from the contract of the plaMtiff with the said Daniel B. Tobes, both about January 1st, 1894, and also before and after that time, said beneficiaries and the said Daniel B. Tobes mutually and severally agreed, M consideration of said beneficiaries paying the assessments and other money necessary to keep alive the membership of the said Daniel B. Tobes in
The committee fomid that the matters alleged in said paragraphs were not true. He adds : “ It was claimed, in behalf of the said Eulie M. Tolies, that I should find as a fact that the parties entered into the contract set out in said (9th) paragraph, and also that such contract was implied in law under the facts and circumstances proved. In so far as the question is one of fact, I find as above stated; and in order that the question of law, if any there be, may be presented . . . I find as follows.” He then sets out at some considerable length the facts in evidence, from which it is claimed that as a matter of law such a contract would be implied. Abbreviated, they are in substance like this: Daniel M. Tolies became a member of the plaintiff association on the 11th day of February, 1878. He continued to be a member in good standing, until his death on the 28th day of February, 1896. From thé time he became a member up to the fall of 1893, all the dues and assessments were paid by Rhoda M. Tolies out of wages earned by herself. Sometime during that fall —the exact date is not given—the family were all together. Herbert had then just become of age, and Eulie was eighteen years old. At that interview the father said to his sons, that by reason of the expense incurred in the building of a house then being finished it would be hard for their mother to continue to pay the insurance, and asked them if together they would not carry it. They assented, and from that time until the 1st of August, 1894, all the assessments and dues paid during that period by any one were paid by the two sons. These payments were made in the expectation of sharing in the benefits. After August 1st, 1894, however, nothing was paid by either of them. All the payments after that date up to the time of the death of Daniel M., were made by Mrs. Rhoda M. Tolies. A Mr. Barlow was the agent of the plaintiff at Birmingham, Conn. It was from him, as such agent, that notice of the assessments, etc., were sent to the Tolies family, and it was to him that the assessments were paid. The assessments not always being paid promptly, Mr. Bar»
Upon these facts the said Eulie claimed in the Superior Court that he was entitled to have one third of the said $2,000, because : 1st, there was a contract between himself, the other beneficiaries named in the original certificate, and his father, that he should have that proportion; 2d, the law implies from the facts stated an agreement between the beneficiaries that the said sum should be divided in that way.
As a question of fact there was no contract upon which Eulie can depend; and we think the law does not infer any promise to Eulie from the facts found. Giving to the arrangement which was made between Eulie, his father, his mother and his brother, the construction most favorable to him, and even calling it a contract, there was in it the necessary condition that the payments should be kept up so long as Daniel B. Tolies lived. This contract, if it may be so called, was upon the consideration of “paying the assessments and other moneys necessary to keep alive the membership of the said Daniel B. Tolies in said association.” And when Eulie failed during the lifetime of Daniel to continue
The claim of Eulie is put also in another form; that is, that Rhoda M. takes the $2,000 charged with a trust to pay one third of it to him, Eulie. The trust, if there is one, must arise out of the same circumstances from which the implied contract is said to come. But as there is no implied contract there can be no trust. A trust can be implied only when there is a consideration. Lewin on Trusts, 130. Eulie never had any vested interest in the benefits named in the cértificate; there has been no payment of money by him, nor has there been any agreement respecting the same which made it a trust fund and entitled him to the benefit of being a cestui que trust therein. And there has been no fraud by Rhoda which would subject her to the liabilities of a trustee thereof.
“ In case of an ordinary policy (of insurance), the right of the person for whose benefit a policy is issued cannot be defeated by the separate or joint acts of the assured and the company, without the assent of the beneficiary; while it is entirely well settled that in cases of this description the beneficiary has no vested interest in the benefit certificate until the death of the insured member. Up to this time (where the laws of the society so permit) he may change his designation of beneficiary at will, against the consent of such beneficiary, even though the latter may have advanced the money to pay the assessments upon the certificate.” Supreme Conclave, etc., v. Cappella, 41 Fed. Rep. 1, 3; Bacon on Benefit Soc. § 306; Barton v. Provident Mut. Relief Asso., 63 N. H. 535.
There is no error.
In this opinion the other judges concurred.