(B)-Reports of Selected Cases heard by the Commissioner under Section 32 (1). COMMITTEE OF MANAGEMENT. In the Matter of Annie Dorothy McCarthy and Kathleen Elizabeth Alice McCarthy and the Liverpool Victoria Friendly Society. Award, 18th January. Committee of Management-Pension-Contract for pensions to dependants of a member of the committee of management of a collecting society-Allegation of ultra vires-Construction of rule and resolution of the society. The Commissioner's written judgment was as follows:This case comes before me in the form of an agreed statement with the material documents and the opposing contentions appended. It concerns a contract made on 12th August, 1920, for the payment of pensions to Annie Dorothy McCarthy and Kathleen Elizabeth Alice McCarthy, the daughters of Daniel McCarthy, who was a member of the Committee of Management of the Liverpool Victoria Friendly Society, and who died in the active service of the society in December, 1924. The contract was made between Daniel McCarthy and all the then members of the Committee except himself in pursuance of the eighth paragraph of Rule 8 of the society's rules, which is as follows: The preceding pension provisions shall not apply to members of the Committee of Management, but pensions may be granted by the Committee of Management to any member or members of the Committee who have been not less than 20 years in the service of the Society and their dependants (including their widows) provided that the same shall not exceed the scale or amounts and shall be subject to the limitations (if any) which at the time of such grant are prescribed by Resolution of the Society in General Meeting." It is not disputed that Mr. McCarthy was a member of the Committee, who had been not less than 20 years in the society's service, and that the ladies in question were his dependants within the meaning of the rule at the time when the contract was made. The relevant resolution referred to in the rule was passed by the society at an adjourned general meeting on 25th March, 1920, in the following terms: "That the Society approve of the Committee of Management contracting with the individual members of such Committee that upon any of such members ceasing to be employed by the Society he shall be entitled to receive for COMMITTEE OF MANAGEMENT. life or any less period fixed by the Committee, a pension amounting to one-sixtieth of average remuneration calculated over the last three years, for each year of service, but not to exceed two-thirds of remuneration in any case-with power also to provide that in case of the death of any such member, during active service or thereafter, a pension not exceeding one-half of the above-mentioned pension may be granted to any dependant or dependants (including the widow) of such member for his or her life or any less period, or until the happening of some event or otherwise as the Committee shall think fit; provided however that upon the death of any participating dependant or dependants the allowance or proportion drawn by such dependant shall cease and determine. And in giving effect to this resolution the words dependant or dependants' shall only mean the widow and/or children of the member." The part of the contract which is at present material in the events which have happened is as follows: "2. In the event of the death of the said Daniel McCarthy whilst in the active service of the Society and also in the event of the death of the said Daniel McCarthy after ceasing to be in the active service of the Society, the Society shall as from such death pay by equal monthly instalments to his dependants hereafter mentioned an annual pension of an amount equal to two-thirds of one-half of the annual sum mentioned in the last preceding clause and if there shall be more than one of such dependants then living the said pension shall be divisible between them in equal shares but so that upon the death of any such dependant after becoming entitled to participate therein the allowance or proportion payable to such dependant shall cease and determine from the date of her death a proportionate payment being made for the period elapsing between the time when the last preceding payment became due and the date of such death. The dependants above referred to are the said Daniel McCarthy's daughters Annie Dorothy McCarthy and Kathleen Elizabeth Alice McCarthy.' 4. The agreement shall be irrevocable." In my opinion, this contract on the face of it falls precisely within the rule and the resolution in every respect. But it appears that certain changes have taken place in the composition of the committee and that two of the new members, Messrs. Payne and Kirsopp, have thought it right to raise objections to the carrying out of the contract and in consequence it has not in fact been carried out. The contentions of these members are contained in statements furnished by each of them and it therefore becomes my duty to examine them. COMMITTEE OF MANAGEMENT. Both these gentlemen wish me to interpret the resolution and the contract in the light of statements made during the debate on the resolution, and in particular a statement by the then secretary, that in the case of the Treasurer of the society, Mr. Long, who had a second wife and two young children, the pensions to the children would be made to cease at 21 and would be appropriately deducted from the amount allowed to the widow. There are also general allegations as to explanations stated to have been given which are alleged to affect the construction of the resolution. It is contrary to the most elementary principles of construction to allow any such matters to be taken into account. It was open to the meeting to modify the terms of the resolution in any way that it thought fit before it passed it, whether in consequence of what was said at the meeting or otherwise, and in fact it did make one modification, by the addition of the last sentence defining "dependants." The resolution having been passed in certain terms it is not open to the persons who passed it or to anyone else to say that it does not mean what it says because something said at the meeting led or leads them to suppose that it means something else. This would be the case even if the resolution were ambiguous, whereas it is perfectly plain. But in case the objectors may think that this argument has been dealt with on technical grounds and not on its merits, I will add that I have read through all the speeches which were made not only at the meeting in question, but also at the meeting in the preceding year, when a similar resolution was passed, and I can find nothing whatever in any of them which in any way affects the present contract. There is a cognate argument of Mr. Payne's which is equally inadmissible, namely, that the members of the society did not know the nature of the pension contracts, and did not intend that there should be such contracts, and that they would have resisted them if they had known. The answer to this is that the contract was made in accordance with the rule and resolution duly passed at a general meeting, and that any members who did not attend cannot now object to what was passed. The rule and resolution left it to the committee to make pension contracts within certain clearly defined limits and no member can now be heard to say that he objects to what the committee has done provided that it did not overstep the limits laid down. There are two other contentions, of Mr. Kirsopp's, namely, that pensions are definitely limited first to widow and children and that if any children are to be provided for, then there is to be a corresponding reduction of the widow's pension. As to the second, there is no widow's pension in the present case. As to the first, I do not know if he means that there can be no children's pension, unless there is also a widow's pension. COMMITTEE OF MANAGEMENT. If he does there is nothing in the rule or resolution to support his view. He further argues that the question of dependency must be determined at the time when the pension becomes payable, that is to say at the death of the committeeman, and not at the date of the deed. That is not provided in the rule or the resolution, and, even if it were so, which it is not, in my opinion, there is no evidence that the Misses McCarthy were not just as much dependent on their father at the time of his death as they were on 12th August, 1920. The uncontradicted statement of their Solicitors, indeed, is that they are both more or less invalids, and one of them has been in a mental home till quite recently. Mr. Payne appears to wish to exclude from the term "dependants" those who, though in fact dependent, could earn their own living if they tried, and also all children over 21 whether dependent or not. I fail to find any authority for the latter part of this proposition either in the rule and resolution or anywhere else. Presumably it is based on the secretary's remarks about Mr. Long with which I have already dealt. As to the former part, not only is there no evidence that the Misses McCarthy could at any time have earned their own livingwhat evidence there is is all the other way-but, also, in my opinion, the question whether a child is or is not a dependant is one to be decided by the Committee at the time when the contract is made and if they decide, on material on which a body of reasonable men could reasonably come to such a decision, that the child is a dependant, their decision ought not ought not to be questioned. Mr. Payne raises some other general points which may or may not apply to the other contracts made by the Committee, but do not apply to this one, and I therefore need not deal with them, but he also takes two points touching the amount of the pensions in this case which require notice. One of them is that dependent children are not entitled to receive more than the value of the pension that would have been paid to their mother, if she had survived her husband. This view, in my opinion, is not justified by the rule or the resolution. The resolution quite clearly provides that any dependant or dependants, whether widow or child, may be granted a pension of not more than half the pension of their father or husband for their respective lives or any less period or until the happening of some event or otherwise as the Committee think fit. In this case the Committee thought fit to grant the two-thirds of the full permitted amount to the two daughters in equal shares, for their respective lives, and they were perfectly entitled to do so. There is nothing to limit their discretion to the amount they might or could have granted to the daughters' mother, if she had been alive. COMMITTEE OF MANAGEMENT. His other point is that the annual remuneration of the father, on which the daughters' pensions should be calculated, ought to be £500 per annum only, that is to say the sum he received as a member of the Committee. But the rule and resolution make no such limitation. The rule makes the qualification for pension service in the society for not less than 20 years, not only service as a committeeman but any service, and the resolution entitled the pensioner to a pension equal for each year of service to onesixtieth of his average remuneration for the last three years, with a maximum of two-thirds. Obviously every kind of service in the society is intended and every kind of remuneration paid to him by the society for such service, not merely service and remuneration as a committeeman. I therefore award that the contract made between the Committee and the late Daniel McCarthy is valid and binding on the society, and I only regret that, owing to objections which appear to me to be void of foundation, the pensioners have been deprived of their pensions for over 12 months. I hope the arrears will be paid to them as rapidly as possible and suggest that, in the circumstances, the Committee might well pay them the costs which they have incurred in this matter. Solicitors for the Misses McCarthy: Sharpe, Pritchard and Company, London. Solicitors for the Society: J. Tickle and Company, London. FORFEITURE. In the Matter of Jessie Cooney and the Macclesfield No. 1 London, 9th December, 1925; Hanley, 25th February. Forfeiture-Rule of collecting society-Effect of the Industrial The plaintiff claimed the sum of £10 under a policy on the life of Joseph Hill, with the consent of the widow of the life assured. The secretary of the society, quite justifiably in the Commissioner's opinion, until there had been a legal decison on the matter, refused to pay on the ground that he was precluded from paying by Rule 16 of the Society's rules, which was as follows: 'Any member being only three payments in arrears shall be entitled to the Society's allowance in case of death. And should any member be more than three payments in arrears five shillings shall be deducted from the funeral allowance; if over five payments, ten shillings from the funeral allowance; and if over six payments, shall be disallowed all |