§ 695. Same Parties.-The statutory provisions governing parties to civil actions will, to a great extent, be found applicable to actions on certificates, whereon members of benefit societies are entitled to benefits and their beneficiaries to death losses. The latter have, after the death of a member on whose life the insurance was held, a vested interest within the meaning of statutes requiring actions to be brought in the name of the real party in interest, as has often been recognized in actions on regular policies, and the principle applies to benefit certificates,1 although the beneficiary be not privy to the contract.2

The administrator and the heirs cannot join in an action on a policy of insurance for a loss accruing after the death of the assured. But where the policy is payable to the assured, "his executors, administrators, or assigns," for the benefit of wife and children, the personal representative is held to be the proper party plaintiff.4

In Massachusetts a statute provides that beneficiary corporations may establish by assessment a fund "to

1 York County Mut. Aid Ass'n v. Myers, 11 W.N. C. (Pa.) 541.

2 Beardslee v. Morgner, 4 Mo. App. 139; Barbaro v. Occidental Grove No. 16, 4 Mo. App. 429.

Pfister v. Gerwig, 122 Ind. 567. An administrator of the insured may maintain an action on such certificate though his petition needlessly aver that the action is for the benefit of the creditor. Rindge v. New England Mut. Aid Soc., 146 Mass. 286.

4 Fairchild v. Northeastern Mut. L. Ass'n, 51 Vt. 613; Catland v. Hoyt, 78 Me. 355; Grattan v. National L. Ins. Co., 15 Hun, 74; Connecticut L. Ins. v. Luchs, 108 U. S. 498; Massachusetts Mut. L. Ins. Co. v. Robinson, 98 Ill. 324; Stowe v. Phinney, 78 Me. 244; s. c. 57 Am. Rep. 796. A certificate designated a creditor of the member as beneficiary, in violation of Acts Mass. 1874, c. 375, § 4, authorizing mutual benefit societies to issue certificates for the benefit of widows, orphans, or dependents of members, but provided that the beneficiaries might be changed, and, in case the insured survived all the original or substituted beneficiaries, the insurance should be for the benefit of his heirs. Held, that the administrator of the insured may maintain an action on such certificate though his petition needlessly aver that the action is for the benefit of the creditor. Rindge v. New England Mut. Aid Soc., 146 Mass. 286; 15 N. E. 628

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," and the similar language of a later statute increased the number of those for whose benefit such corporations could insure. It was held that these provisions do not give a right of action on the certificate to the persons for whose benefit the contract is, expressed to be made. Upon the death of a member intestate, such action is ministrator.1

properly brought by the ad

If, however, a certificate provides for the payment of different sums to different parties, they cannot join in one suit, but must bring separate actions, each for his individual share. Whether, if the amount of the insurance be payable to certain persons equally, they may join in one action, seems not to be settled. Upon principle it would seem that they might, and thus avoid a multiplicity of suits.

§ 696. Same-Enforcing the judgment. After a general judgment on a benefit certificate execution cannot be limited to a particular fund. The assessments paid into the treasury of a benefit society by its members. become the property of the society, and the members have no further claim or right to it. And a member

1 Flynn v. Massachusetts Ben. Ass'n (Mass.), 25 N. E. 716; Burns v. Grand Lodge of Ancient Order of United Workmen (Mass.), 26 N. E. 443; Peet v. Great Camp of the Knights of the Maccabees (Mich.), 47 N. W. 119.

2 Emmeluth v. Home Ben. Ass'n, 122 N. Y. 130; 25 N. E. 234; Keary v. Mutual Reserve Fund L. Ass'n, 30 F. 359; Frazer v. Phoenix M. L. Ins. Co., 36 Up. Can. Q. B. 422; Campbell v. National L. Ass'n Co., 34 Up. Can. Q. B. 35. 3 Covenant Ben. Mut. Ass'n v. Hoffman, 110 Ill. 603.

Seitzinger v. New Era L. Ass'n, 111 Pa. St. 557; McKnight v. Mutual L. Ass'n, 15 W. N. C. 400.

5 Swett v. Citizens' M. Relief Soc., 78 Me. 541; York Co. Mut. Aid Ass'n v. Myers, 11 W. N. C. 541; Brown v. Orr, 112 Pa. St. 233.

of the association, having no interest in the fund, cannot maintain a suit to enjoin its payment. Where the charter provides that the funds shall be for the relief of the member's family, and shall be exempt from seizure under legal process to pay any debt of the deceased member, a certificate, payable to the widow of the member, is for the benefit of the member's family, and cannot be seized, upon the death of the member, by the widow's creditors.2

§ 697. Pleading. To recover in an action at law, it is necessary to show what is the amount realized from one assessment. It may be more or less than the face of the policy. In the absence of evidence there can be no presumption that it will equal the face of such policy, for that sum is specified as the greatest sum payable, thus clearly implying that it may be less.

The complaint and proof should show the sum which would have been realized on an assessment, or that an assessment would have yielded returns.4

Where the contract stipulates that proofs of death shall be furnished to the secretary of the association, the complaint is sufficient if it shows that such proofs

1 Elsey v. Odd Fellows' M. R. Soc., 142 Mass. 224; 7 N. E. 844. Further proceedings, if any are proper, must be had in equity under How. St. Mich. § 8153, providing that when a judgment shall be obtained against a corporation, and an execution thereon returned unsatisfied, the circuit court may sequestrate the corporate property. Miner v. Mich. Mut. Ben. Ass'n, 63 Mich. 338; 31 N. W. 763.

2 Schillinger v. Boes, 85 Ky. 357; 3 S. W. 427.

3 O'Brien v. Home Benefit Soc., 117 N. Y. 318;

4 Martin v. Equitable Acc. Ass'n of Binghamton, 55 Hun, 574; 9 N. Y. Supp. 16; Freeman v. Society, 42 Hun, 253.

In Peck v. Equitable Acc. Ass'n of Binghamton, 52 Hun, 255; 5 N. Y. S. 215, it was found by the trial court that if an assessment had been levied as provided for by the policy, it would have produced at least a sum equal to the face of the policy, and the court awarded the plaintiff the full amount of the policy with interest and cost.

were furnished to the association, and it is not necessary to aver therein a demand before suit brought.1

§ 698. The complaint.-The complaint on a benefit certificate must allege due performance of whatever conditions are, in contract or by-laws, or both, made conditions precedent to the society's liability. Proofs of death of the insured are generally required to be furnished to the officers within a specified time. In the absence of a good and sufficient cause excusing it, compliance with this requirement must be alleged and shown.2

The requisites of a declaration on an ordinary insurance policy are entirely applicable to certificates of membership. Where the liability of the society is

1 Excelsior Mut. Aid Ass'n v. Riddle, 91 Ind. 84.

2 Fire Ins. Co. v. Felrath, 77 Ala. 194; s. c. 54 Am. Rep. 58, holding also that much stipulations are binding on the parties. It is an essential of such bylaws as of all others that they be reasonable and not retroactive. In Universal F. Ins. Co. v. Block, 109 Pa. St. 535, it was held that a condition in a fire policy requiring a certificate or affidavit from the nearest magistrate, or a fire marshal, stating certain facts, is unreasonable and therefore void. See also, Shannon v. Hastings Mut. F. Ins. Co., 26 U. C. C. P. 380, and where it is provided or the member has contracted that proofs of death should be " satisfactory to the directors," they cannot capriciously demand unreasonable proof. Braunstein v. Accidental Death Ins. Co., 1 B. & S. 782; 8 Jur. N. S. 506; 31 L. J. Q. B. 17; 5 L. J. N. S. 550.

3 The essential parts of the declaration are stated in Brooklyn L. Ins. Co. v. Bledsoe, 52 Ala. 538. The court said: "The contract or policy of insurance must be declared on, in haec verba, or according to its legal effect; the plaintiff's interest in the subject of insurance; the payment of the premium; the inception of the risk; the performance of any precedent condition or warranty contained in the policy, and the loss, or happening of the event, on which, within the terms and meaning of the policy, the liability of the insurer attaches, must be alleged. The general rule applicable to all executory contracts is, that if the defendant's performance depended upon a condition precedent, the plaintiff must aver the fulfillment of such condition, whether it is affirmative or negative, or to be performed or observed by him, or the defendant, or a mere stranger to the contract, or must show an excuse for non-performance. If nonperformance is excused the matter of excuse must be distinctly averred." In an action on a certificate by which the association agreed to assess all its members, and pay the amount collected for mortuary purposes to the beneficiary, not to exceed $1,000, a petition which does not aver that defendant failed

limited to the proceeds of an assessment upon the members, the complaint should aver that the assessment has been made and collected, or that the company had refused to make the assessment; and a petition which does not aver that defendant failed, or refused to lay any such assessments, or that, having laid one and collected it, failed and refused to pay the same to plaintiff, is demurrable.2

A complaint, in an action on such a certificate, need not aver the number of members of the rank to which the deceased belonged at the time of his death, that fact being peculiarly within the knowledge of the defendant.3

To maintain an action at law upon such certificate for the maximum sum therein, it must be alleged and shown that the company has levied an assessment upon certificate holders to pay the death claim has collected

or refused to lay any such assessment, or that, having laid one and collected it failed and refused to pay the same to plaintiff, is demurrable. Taylor v. Nat. Temperance Rel. Un., 94 Mo. 35; 6 S. W. 71.

A declaration, which names no sum for which defendant became liable under the terms of the certificate, and which does not make the certificate a part thereof, is fatally defective, and the omission is not cured by the verdict. Lincoln Mut. L. & Acc. Ass'n v. Miller, 23 Ill. App. 341.

Abe

A petition on a certificate against a mutual benefit association, alleging that defendant was the legal successor of another such association which had issued the certificate, having received all its assets and effects and assumed to pay all its liabilities, and to fulfil all its obligations and engagements, including the demand sued on, sufficiently state that the first association no longer exists, and that defendant is its legal successor. Stanley v. Northwestern L. Ass'n, 36 F. 75. 1 Under Pa. April 15, § 1 (P. L. 103), providing that all policies of life insurance taken out for the benefit of the insured's wife shall be vested in such wife clear from the claims of the insured's creditors, a declaration in an action on a benefit certificate by an administrator, which shows that the certificate was taken out in the name of plaintiff's decedent, and was made payable to his wife, and shows no transfer of title from the wife to decedent, is demurrable, though it also avers that the certificate is part of decedent's estate, and that such estate is insolvent. McNeil v. Supreme Commandery, 131 Pa. St. 339. 2 Fitzgerald v. Equitable Reserve Fund L. Ass'n, 5 N. Y. Supp. 837; Taylor v. National Temperance Relief Union, 94 Mo. 35.

3 Taylor v. National Temperance Relief Union, 94 Mo. 35.

* Supreme Lodge Knights of Pythias v. Knight, 117 Ind. 489.