People v. Life & Reserve Ass'n , 99 N.Y. Sup. Ct. 592 ( 1895 )

LEWIS, J.

We concur with the special term that at the commencement of this action there should be regarded as in the death fund as taken from the reserve fund the amount of the maximum death- assessment, being $10,000; hut we do not concur with the conclusion that the claimants Royce and Spooner should be paid in full from the said fund, to the exclusion of other death claimants, whether of the life reserve or the life class. When the $10,000 is taken from the reserve fund, and becomes a part of the death fund, it ceases to have any of the qualities or attributes of a reserve fund, and becomes a common fund for the payment of death claims, and under the constitution and the certificates issued by the association all the members of the association are entitled to share equally in the death fund, whether holders of life certificates or life reserve certificates. The corporation ivas dissolved by proceedings taken in this action, and the effect of that dissolution reached back to the commencement of the action, so that the functions of the corporation ceased at that time; the §10,000 .should be distributed pro rata upon all the proved and accrued ch-ath claims existing at that time. But one transfer of a maximum e¿a" a xxa the reserve fund to the death fund can he made at a time, iicr when no transfer has in fact been made before the commencement of the action, only one is made by construction, upon the equity dc-ctriuc- that what, should be done has been done. Th-- op-rattcn w.xnot Tie repeated after the action is commenced, to meet the h:.3 of the death claims then unpaid, or such as might after thrt dine. The court, in winding up a corporation and dLlribnilng its property, docs so upon the basis and consideration that exist './Lea the; action is commenced, and the rights of all the parties interested are adjusted as of that date. The holders of life reserve certificates, and the representatives of such holders as had died, have an equitable lien upon all the reserve funds of the association in the proportion which the amounts contributed by the holders thereof respectively bear to the amount of such fund left in the hands of the receiver for distribution. This statement applies to the balance due upon the death claims arising out of the reserve certificates after deducting the amount received by them respectively on the distribution of the said $10,000, as well as to those, life reserve claims upon which nothing has been paid. Those holding life certificates only, or death claims arising from life certificates, do not share in the reserve fund aside from the said $10,000, and this statement applies to the balance due on such death claims as have received a pro rata distribution of the said $10,000.

The order of the special term should be modified to conform to the foregoing views, and, as so modified, affirmed. Costs and disbursements of the appeal should be allowed to each of the parties represented by counsel, as heretofore stated, but not more than three bills of costs and disbursements in all, which should be paid out of the funds of the association in the hands of the receiver. All concur.