Haskins v. Kendall , 158 Mass. 224 ( 1893 )

Lathrop, J.

It is not contended by the appellee that the certificates originally issued to Jonathan H. Haskins by the Massachusetts Mutual Aid Society for the benefit of his wife were not legally surrendered. It is contended in her behalf that the certificates issued in place of the original certificates, being issued after the passage of the St. of 1885, c. 183, vested such an interest in them in his wife, that, notwithstanding her death before that of her husband, the proceeds of the certificates upon their collection belong to her estate.

The applications for the certificates were made by Jonathan H. Haskins, and all assessments were paid by him. Even if this had been a case of life insurance, in the absence of any statute giving the wife a vested interest in the policy, or of some provision in the policy giving a right to her representatives, the contract would be construed as payable to the wife only in case of her surviving her husband, and on the failure of the contingency there would be a resulting trust in his favor. Fuller v. Linzee, 135 Mass. 468. Bancroft v. Russell, 157 Mass. 47.

While the rights of a wife and children are protected in the case of a policy of life insurance for their benefit, it has not yet been held by this court that, if they die before the person effecting the insurance, there would not be a resulting trust in his favor, in the absence of language in the policy giving rights to the legal representatives of the wife and children.

While the St. of 1885, c. 183, § 1, provides that, “ if the benefit is to accrue through the death of the insured person, the contract shall be of life insurance,” and by § 13 certain powers are given to the insurance commissioner which are conferred upon him by the Pub. Sts. c. 119, the same section provides that “ nothing herein contained shall subject any corporation doing business under this act to any other provisions or requirements of said chapter, . . . except as distinctly set forth herein.”

The contract in the case at bar does not, therefore, come within the provisions of the Pub. Sts. c. 119, § 167, but within the general rule above stated. While under a by-law of the society Jonathan H. Haskins could not transfer the certificates without his wife’s written consent,^* we are of opinion that this did not vest such an interest in her that her next of kin would be entitled to the proceeds of the certificates if she died before him.

It follows that the decree of the Probate Court must be reversed, and the case remanded to that court for further proceedings.

So ordered.

* This by-law was as follows: “ Where the beneficiary is the wife of a member no transfer can be made except with her written consent, but in all other cases a member can change the beneficiary by return of certificate with request of such change in writing.”