Rindge v. New England Mutual Aid Society

Beneficiary A ssociation — Administrator — Action — Forfeiture — Waiver. A certificate in a beneficiary association stated that it was for the benefit of “friends,” but provided, in case no beneficiaries, original or substituted, survived, that it should enure to the benefit of “legal heirs.” An action was brought by the friends to recover on the certificate, but subsequently the member’s administrator was admitted to prosecute it, as his declaration averred, for the benefit of such friends. Held, that the designation of “ friends ” as beneficiaries, though invalid, would not avoid the contract, hut that the administrator might recover for the benefit of the heirs only, the averment as to friends being disregarded.- The levy and acceptance of assessments by a beneficiary association without condition, after the conditional acceptance of a prior overdue payment, is a waiver of the right to avoid a certificate for delay of payment.

Contjract to recover $5,000 on a certificate of membership in the defendant association issued to Thomas G. Rice. The plaintiffs moved to amend their writ and declaration by admitting the administrator of Rice to prosecute the action, and an amended declaration was filed, which alleged that the defendant owed the amount due on the certificate to such administrator “ for the benefit of ” Frederick H. Rindge, Clarissa H. Rindge, and Francis J. Parker, administrators of the estate of Samuel B. Rindge, the original plaintiffs, who were “ the beneficiaries under said policy for whose benefit this action is brought.” Trial in the Superior Court, without a jury, before Thompson, J., who reported the case for the determination of this court, in substance as follows: On July 7,1883, Rice was indebted to the Rindges and Parker, as administrators, in the sum of $6,363, and on that date the defendant, a beneficiary association incorporated under the St. of 1874, c. 375, as amended by the St. of 1877, c. 204, issued the certificate to him as collateral security for that indebtedness. The certificate, which was numbered 964, stated “that said Thomas G. Rice is a member of class 5 in said society, and for the benefit of friends, Clarissa H. Rindge, Frederick H. Rindge, and Francis J. Parker, administrators of the estate of Samuel B. Rindge, unless said member shall, at any time, or from time to time hereafter, in writing, assented to by said society, substitute some other beneficiary or beneficiaries, and in that case for the benefit only of the beneficiary or beneficiaries last substituted, as aforesaid, before the death of said member; but if said member shall survive each and all the original beneficiary or beneficiaries, or, in case of substitution, each and all the beneficiary or beneficiaries last substituted, as aforesaid, then for the benefit only of the legal heirs of said member,” and contained the following condition : “ If said member .... shall omit or neglect to pay to said society within thirty days of date of notice .... any regular assessment of five dollars 25-100 that may be made by said society upon him under this certificate, then, in every or either event above named, this certificate shall thereby become null and void.” In the application upon which this certificate was issued, Rice agreed that, upon any omission or neglect for a period of thirty days after notice to pay any such assessment, the contract on the part of the society should thereupon become null and void, and that printed notices mailed thirty days in advance should be sufficient notice of any assessment levied. On July 18, 1885, a notice of an assessment, dated July 17, 1885, was put into the mail addressed to Rice at his residence, which the judge found was delivered to him on July 20, 1885. On August 17, 1885, Rice was taken ill, and so continued until his death on December 17, 1885, due proofs of which were furnished. On August 19, 1885, Rice’s son found the notice above referred to in his father’s pocket, and sent it, with the amount of the assessment, to the office of the defendant, where it was receipted by the treasurer and handed back, stamped, “ This assessment is accepted on condition that the member is in good health.” Nothing was said on either side as to the condition of Rice, who subsequently refunded the amount of the assessment so advanced by his son. The defendant subsequently levied sis different assessments on Rice, and accepted payment of the same unconditionally, without making any inquiry as to his health, and it knew nothing about his health until after his death. The judge ruled that the certificate was forfeited by reason of the nonpayment of the assessment called for by the notice dated July 17, 1885, within thirty days therefrom, and that there was no evidence to justify him in finding a waiver of the forfeiture, and found for the defendant. If either of the rulings were erroneous, judgment was to be entered for the plaintiff, unless upon the other facts the plaintiff could not recover, in which case judgment was to be entered for the defendant.