McCarthy v. Supreme Lodge New England Order of Protection

| Mass. | Feb 26, 1891

Morton, J.

The Pub. Sts. c. 115, § 8, as amended by the St. of 1882, c. 195, § 2, which were in force at the time the defendant corporation was organized, provide that “a corporation organized for any purpose mentioned in section two may, for the purpose of assisting the widows, orphans, or other relatives of deceased members, or any persons dependent upon deceased members, provide in its by-laws for the payment by each member of a fixed sum, to be held by such association until the death of a member occurs, and then to be forthwith paid to the person or persons entitled thereto.” It is evident from the language here used, that, while widows, orphans, or other relatives may be “ persons dependent upon ” a deceased member, it is within the contemplation of the statute that a person may be dependent upon a deceased member who is not a widow, or orphan, or relative of such member, and that it is one of the objects of the statute to provide that such persons may share in the benefits of the association which may be organized under it. The purpose seems to have been to provide that “ widows, orphans, or other relatives,” whether dependent or not, might be designated as beneficiaries, and that any other person who is dependent upon a member, although not a widow, or orphan, or other relative, may also be designated by him as a beneficiary. St. 1877, c. 204, §1. Pub. Sts. c. 115, § 8. St. 1882, c. 195, § 2. St. 1888, c. 429, § 8. Nor is there anything in the statute which requires that the dependent person should be legally or wholly dependent upon a member. On the contrary, the enumeration of the classes of persons who would be legally dependent upon a member, followed by a phrase distinctly intended to include other persons, would seem to establish conclusively that legal dependency was not the test. Nor can it be justly said that, if the beneficiary is dependent in part, he or she is not dependent. Cases will readily occur to one in which persons are partly supported or partially assisted by others. It would be giving an unnecessarily harsh construction to a statute which the court has said should be construed “ liberally, and in such a manner as to carry out the benevolent purpose sought to be provided for,” to hold that such cases were excluded from it. American Legion of Honor v. Perry, 140 Mass. 580" court="Mass." date_filed="1886-01-11" href="https://app.midpage.ai/document/supreme-council-american-legion-of-honor-v-perry-6421904?utm_source=webapp" opinion_id="6421904">140 Mass. 580, 589.

Trivial or casual, or perhaps wholly charitable assistance, would not create a relation of dependency, within the meaning of the statute or by-laws. Something more is undoubtedly required. The beneficiary must be dependent upon the member in a material degree for support, or maintenance, or assistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral, or legal, or equitable grounds, and not upon the purely voluntary or charitable impulses or disposition of the member. American Legion of Honor v. Perry, 140 Mass. 580" court="Mass." date_filed="1886-01-11" href="https://app.midpage.ai/document/supreme-council-american-legion-of-honor-v-perry-6421904?utm_source=webapp" opinion_id="6421904">140 Mass. 580. Ballou v. Gile, 50 Wis. 614" court="Wis." date_filed="1880-12-17" href="https://app.midpage.ai/document/ballou-v-gile-6603321?utm_source=webapp" opinion_id="6603321">50 Wis. 614. Bacon’s Benefit Soc. § 261.

Applying these considerations to the case before us, we think it is clear that Miss Judge was dependent upon McCarthy, within the meaning of the statute and of the by-laws of the corporation, both at the time when the certificate was taken out and at the time of his death. From October, 1888, up to the time of his death, in August, 1889, she received from him weekly from two to five dollars towards her support, in addition to her own wages, which averaged during the same time $4.38 per week. The sums which she thus received from him contributed in a material degree to her maintenance. The Chief Justice, who heard the case, found, as a fact, that what she earned at Fleming’s per week “ was less than she had been accustomed to earn as a table girl, and less than she could live on as she had been accustomed to live, and less than she could comfortably live on, and that the contributions of money by Mr. McCarthy while she was working at Fleming’s were reasonably necessary for her comfortable support during that time.” He also found that McCarthy’s “promise to give her money was understood by both to have been made and accepted because they were engaged to each other,” though “ neither regarded it as an independent contract”; that “ she was under no obligation to remain at Fleming’s longer than she wished”; and that “she would not have accepted money from him, and he would not have given it, if they had not been engaged,” and the arrangement was made with “ her as his intended wife, and was understood to be conditional and dependent upon that relation.” The fact that Miss Judge was the affianced wife of McCarthy would not, as matter of law, constitute her a dependent upon him, (American Legion of Honor v. Perry, 140 Mass. 580" court="Mass." date_filed="1886-01-11" href="https://app.midpage.ai/document/supreme-council-american-legion-of-honor-v-perry-6421904?utm_source=webapp" opinion_id="6421904">140 Mass. 580,) and the St. of 1890, c. 341, was not passed till after the certificate was issued, and therefore does not apply. It is questionable, too, whether McCarthy’s promise to contribute to her support could have been legally enforced by her. But we think, in view of the relation between them, she had a right to receive and depend on his assistance, and that he was under a moral obligation, after promising it, to continue to furnish it. She in fact depended on it, and was aided by it for many months, and down to his death. The money was not given by him, nor received by her, as a charity, but was given to and received by her as his intended wife, —,as a person who, in some sort, had a claim upon him; and, whatever his legal rights may have been, it plainly was not expected by either, that, so long as the relation between them continued, his assistance would be refused or withheld; and so her dependence on him had a certain quality of permanency, and was not casual or merely temporary. The fact that she could have gone back to her employment as table girl, and have supported herself as she had been accustomed to do before going to work at Fleming’s, and the fact that since McCarthy’s death she has supported herself, cannot affect her status at the time of his death, and at the time when the certificate was taken out.

If her situation since McCarthy’s death, or at the time of the trial, is material, it would seem to be disposed of by the finding of the Chief Justice that “ the money payable under the policy would enable her to live much more comfortably than she can without it.” To assist dependent persons to live more comfort- ' ahly after the death of a member is clearly one of the purposes for which a benefit certificate may be issued.

It is objected, that at the time of McCarthy’s death she had ceased to be dependent upon him. But although there had been some difference between them, “ probably a lovers’ quarrel ” it is said, and his feelings had for the time being become alienated from her, it is expressly found, that, up to the time when he died, he had not absolutely decided to break the engagement, and that the engagement was not broken while he lived. He gave her two dollars on the Monday night before he died, and she expected to meet him again and make up whatever quarrel they had had, and “ did not understand that the engagement had been broken, or that he had .made up his mind to break it.” Nor does it appear, nor can we infer, that he intended not to contribute any longer to her support, or that she understood that she was not to depend on him any longer. Under these circumstances, we cannot say that the relation of dependency had ceased at the time of his death.

It is also urged, that upon grounds of public policy Miss Judge is not entitled to the fund. But it was admitted at the argument, on all hands, that the relations between the two were entirely proper, and we fail to see anything contrary to good morals or public policy in her claim to the fund.

The attempt of McCarthy to dispose of the fund by will, and to revoke the designation of Miss Judge as the beneficiary under the certificate, was wholly ineffectual. The by-laws of the defendant corporation pointed out the mode in which the beneficiary was to be changed, if at all, and that mode was not followed. Another beneficiary could be substituted only in the manner there provided. Elsey v. Odd Fellows’ Relief Association, 142 Mass. 224" court="Mass." date_filed="1886-07-03" href="https://app.midpage.ai/document/elsey-v-odd-fellows-mutual-relief-assn-6422107?utm_source=webapp" opinion_id="6422107">142 Mass. 224. Daniels v. Pratt, 143 Mass. 216" court="Mass." date_filed="1887-01-06" href="https://app.midpage.ai/document/daniels-v-pratt-6422253?utm_source=webapp" opinion_id="6422253">143 Mass. 216. ,

We think, therefore, that Sarah J. Judge, the person named in the certificate, is entitled to the fund.

Decree for Sarah J Judge.