Attorney General v. Supreme Council American Legion of Honor , 207 Mass. 586 ( 1911 )

Losing, J.

The question of the petitioners’ right to share in the emergency fund is an altogether different question from their right to a judgment against the corporation. Attorney General v. American Legion of Honor (Dunlavy’s Claim), 206 Mass. 168, 172. The petitioners established their right against the corporation in the case before this court in Hackett v. American Legion of Honor, 206 Mass. 139. The purpose of the present petition is to establish their right to share in the emergency fund, for that is the only fund in the hands of the receiver.

James P. Hackett, the member under whom the petitioners claimed, paid two assessments of the reduced amount and died on November 26, 1900. The petitioners took $1,900 in settlement of their claim and surrendered the certificate for cancellation on April 4, 1901. The $1,900 was not received by the petitioners under protest, and the corporation received no notice from the petitioners that they claimed that they were entitled to the larger sum until the suit against the corporation (which we have already spoken of) was begun on April 16, 1904. The combined period of acquiescence is less than a month shorter than that in Skinner’s Claim, 206 Mass. 175, 179. The case at bar is governed by that case and Doleac's Claim, 206 Mass, 175.

The petitioners seek to escape from this result in several ways. In the first place they point out that Hackett was ill during the month and twenty-six days during which he lived after the invalid by-law went into effect. But it is apparent that although ill in body his mental capacity was not impaired.

They say in the second place that Hackett made a tender. But the tender made by him was made to the treasurer of the local council, and that is not a tender to the corporation. Dreyfus’s Claim, 206 Mass. 180. Lastly they say that when Hackett surrendered his policy to be exchanged for a $2,000 policy under the invalid by-law it was returned to him after October 1 and thereby the defendant waived its rights to cut down this policy. But that is not so. The policy was surrendered in August and was returned then because the by-law was not to go into effect until October. Manifestly this was done to preserve the right of the beneficiaries named in that policy to the larger sum in case Hackett died before October 1 when the new by-law was to go into effect.

Under the terms of the interlocutory decree under which this belated petition was allowed to be filed, the entry must be

Bill dismissed with costs.