139 Mo. App. 443 | Mo. Ct. App. | 1909
Michael T. Sloan was a member of “The Fraternal Home,” beneficiary association which, among other things, issued benefit certificates to members for the benefit of their legal heirs. He became a member and received his certificate in March, 1900, for the sum of $2,000, payable at his death. He continued a member up to and including part of the year 1906." He died September 28, 1906, and his status with that company and with'this defendant, called the Loyal Fraternal Home, is a matter of contention between the parties. This action was brought by his widow and children against the present defendant as the Loyal Fraternal Home, and upon trial the circuit court gave a peremptory instruction to find against them and they have brought the case here.
The petition is in two counts. The first one alleges the existence of the Fraternal Home and Sloan’s membership therein, with beneficiary certificate down to “the first week in September, 1906.” It then alleges that on the 31st of July, 1906, the Fraternal Home transferred its assets, reserve fund and other property to the Kansas City Life Insurance Company under a contract with the latter “to continue the insurance of the members of the said Fraternal Home, and that thereafter the Fraternal Home abandoned its organization and ceased to do business.” The petition then alleges that on the 23rd of August, 1906, the defendant organized as a fraternal
The second count restates the matters stated in the first count except that it states that this defendant, in consideration of certain dues and assessments paid by Michael Sloan, assumed the payment of the certificate made by the Fraternal Home.
We thus have the statement from plaintiffs that the Fraternal Home abandoned its organization on the 31st of July, 1906, after reinsuring its members in the Kansas City Life Insurance Company. That in a few weeks thereafter (23rd of August, 1906) this defendant organized and began to do business and sent circulars to Sloan stating that it would carry and continue the insurance he had made with the disorganized association ; and that he accepted such statement and paid to •this defendant all assessments or claims due from him to the original disorganized association from and after the first week day in September, 1906, to the date of his death, on the 28th of that month.
The proof of these payments was in this way: F. M. Filson had been secretary of the Fraternal Home prior to its disorganization on July 31st, and he was made secretary of this defendant when it is said to have organized on the 23rd of August following. Sloan sent him by letter of 29th of August, 1906, the dues of membership up to first week in September and in acknowl
On the 26th of September, two days before his death, Sloan sent to Pilson dues for October. This was acknowledged by letter dated after Sloan’s death.
So as to see what effect this evidence should be allowed as against this defendant, it will be necessary to consider the evidence establishing its organization, or, in other words, establishing its legal entity. The statute, secs. 1394 and 1395, R. S. 1889, make certain prerequisites to the organization of such association: There must be articles of agreement between not less than three persons; the persons forming these articles of agreement elect officers, and they must submit the articles to the circuit court with a petition praying for a decree of organization; the court, if properly satisfied, then malees its formal decree which is attached to the articles of agreement; the articles must then be recorded by the recorder of deeds of the county where the association is located; the articles must then be filed with the Secretary of State; that officer then issues to the petitioners a certified copy of the articles, with the several certificates thereon, “which certified copy shall be the charter of incorporation; and thereupon the petitioners, their associates and successors, shall be created and be a body corporate and politic, by the corporate name designated in such charter, and such charter, together with this article, shall be received in all courts and places as legal evidence of the incorporation of such association.”
A proper number of persons did sign articles of agreement and elect officers who presented the articles to the circuit court, and that court, on the 6th of September, 1906, entered the decree of incorporation. They also filed the articles and copy of decree with the record
That portion of the statute above quoted makes the certificate of the Secretary of State the final act of incorporation. The petitioners are “thereupon,” that is, upon the issuance of Secretary of 'State’s certificate, created and become a corporate body. The word “there upon” may have different meanings dependent upon the connection in which it is used, but no lexicographer or court has ever allowed it to mean a time before the act upon which it is predicated. In this instance its meaning is clear; it is that upon the issuance of the certified copy of the articles with prior certificates attached, the association becomes a body corporate. The certified copy from the office of the Secretary of State is the necessary and final act creating the corporation.
■ We then have this condition of case: Plaintiffs depend upon acts or promise of defendant as a corporation before there was a corporation. Those acts, as shown above, were principally in receiving payment of dues from Michael T. Sloan on September 6th and 26th, at which dates defendant had not come into existence, and it was without power or authority to accept the deceased beneficiary of the other company; or, as claimed by plaintiffs in the second count, to assume the payment of the certificate issued by the other company. We are of the opinion that the certified copy of the articles of agreement by the Secretary of State is the act bringing the corporation into existence and that prior to that time it had not the power to enter into a prosecution of the business for which it was formed. [Hurt v. Salis
Under the law and rules of these statutory beneficiary .associations, the benefit certificates are issued only to members of the association under certain prescribed conditions for initiation. [Hiatt v. Fraternal Home Assn., 99 Mo. App. 105.] We do not find where the deceased ever became a member of the defendant body whereby he might have a right to claim its protection.
Nor do we find any ground upon which the defendant can be held under the doctrine of estoppel. Nor do we discover where there has been any ratification.
An examination of the record shows that none of the several grounds relied upon by plaintiffs will support the action, and the judgment is accordingly affirmed.
