Page:Federal Reporter, 1st Series, Volume 10.djvu/240

228 FEDERAL REPORTES. �said act under which the defendant was organized it is provided that "associations and societies which are intended to beneflt the widows, orphans, heirs, and devisses of deceased members thereof, and where no annual dues and premiums are required, and where the members shall receive no money as profit or otherwise, shall net be deemed insurauce companies," the business of insurance not being one for the carrying on of which corporations can, by the terms of said act, be organized; that the defendant is an association such as is described in the act of March 28, 1874, no annual dues or premiums being paid or required to be paid by its members, and no money or profits paid or contemplated to be paid to them ; that the benefits arising from membership in said association accrue solely to the widows, orphans, heirs, or devisees directly for their own sole benefit, and are not part of the estate of such deceased member, or payable to his administrator ; that the benefits arising from the membership of said Phillip H. Worley in said association, as shown by the certifieate set forth in the petition, are payable to his devisees and not to other persons; and that said plaintiff, as administrator of the estate of said Phillip H. Worley, is not entitled to receive the same. Defendant avers that it bas no knowledge or information sufficient to form a belief whether said Phillip H. Worley died intestate, and submits that the grant of letters of administration on his estate to the plain- tiff would not bind the devisees or legatees of the last will of said deceased, if such will should be proved to exist, nor would a pay- ment to plaintiff, as administrator, protect the defendant from lia- bility to such devisees or lei^atees, if any such should prove to be. �The plaintiff demurs to the defendant's answer, and the case is befr-:e us upon the demurrer. �E. F. liichman, for plaintiff. �Putnam e liogers and W. J. Culver, for defendant. �Love, D. J. This action, in both form and substance, proceeds upon a breach of contract. The contraet is contained in the certifi- oates, copies of which are exhibited with the petition. The certifi- cates provide that, for certain considerations therein mentioned flow- ing from Phillip H. Worley, deceased, the association promises and agrees to pay to the devisees of said decedent certain sums of money therein specified. In order to maintain the action the plaintiff must allege and show a breach of the contract. What breach bas the plaintiff assigned? What breach can he assign ? He has not alleged that the defendant association has failed, neglected, or refused to pay to the devisees of the decedent the sums of money in question. This ��� �