Moies v. Economical Mut. Life Ins. Co. , 12 R.I. 259 ( 1879 )

We think an insurance company which has deposited stocks and securities with the general treasurer under Gen. Stat. R.I. cap. 143, § 18, has no absolute right to receive and collect the interest and dividends accruing thereon; but can only receive and collect them by permission of the general treasurer. The provision of § 18 is, that "any company so depositing may be permitted to receive and collect the interest and dividends on its securities so deposited." The word "may" in a statute is sometimes construed to have the meaning of "shall"; but whether in any given case it has the meaning of may, or shall, depends on the intent of the legislature, to be ascertained from the context and design of the statute. The principal design here is security to policy holders, and we must construe the passage cited in the light of that design. Looking at the passage in that light, we think a discretion was meant to be reposed in the general treasurer, and that, though he has no right arbitrarily or wantonly to refuse permission to a company to receive or collect the interest and dividends, it is his right, and it may be his duty, to withhold or revoke his permission if it is done for the protection of the policy holders. For instance, if the stocks and securities, after being deposited, should depreciate to any considerable extent, we think the general treasurer would have the right, and it would be his duty, not only to take the steps prescribed by § 21 of the same chapter, but also to withhold permission from the company to receive and collect the interest and dividends until the depreciation should be made good. And so, of course, if the company becomes insolvent, and a receiver is appointed, the permission will be determined. It follows, we think, that after the permission is determined, the interest and dividends will accrue to the principal fund and follow its destination; that is to say, it will be applied along with the fund, first to the payment of the policy holders, and then, if there is any surplus, it will go to the receiver for the equal payment of the other creditors, and, after them, if anything remains, for the company.

In this view the bill preferred by Moies is maintainable only as a policy holder's bill; and, in that aspect, inasmuch as the receiver has now been made a party to it, we think it is sufficient for the complete administration of the deposit in the hands of the general treasurer, and that there is no occasion for the bill preferred by the receiver, which therefore ought to be dismissed.

Decrees accordingly, and the case brought by Moies referredto a master to ascertain the claims against the trustsecurities.