« ForrigeFortsett »
either way then, the result is the same for ceding negotiations, is competent, not to the original demise is thereby lengthened to vary what has been reduced to writing, but cover the longest time named. Tue lease, to aid in its construction, and to make plain and the agreement, therefore, must be con in what sense the parties used and understrued together, and considered in their en stood the language they employed. Palmer tirety as forming the contract between the v. Clark, 106 Mass. 373, 387; Keller v. Webb, parties. This, with an exception presently 125 Mass. 88, 89, 28 Am. Rep. 209; Proctor v. to be noticed, is not denied by the plaintiffs, Hartigan, 139 Mass. 554, 2 N. E. 99; Basas they aver in their bill that all the coy sett v. Rogers, 162 Mass. 47, 51, 37 N. E. enants and agreements to be kept by them 772; Id., 165 Mass. 377, 43 N. E. 180; Alhave been performed. The exception is, the vord v. Cook, 174 Mass. 120, 122, 123, 54 reservation of the right to cancel the lease N. E. 499; Lynn Safe Deposit & Trust Co. of which the lessors, by a proper notice, v. Andrews, 180 Mass. 527, 534, 62 N E. 1061; having signified their intention to take ad Hebb v. Welsh, 185 Mass. 335, 70 N. E. 440. vantage, this bill is brought for the purpose But this rule is inapplicable. of enjoining them from enforcing a can Upon recurrence to the agreement it purcellation.
ports in clear and comprehensive language
to grant an extension of the demised term, it is manifest that the plaintiff, De Friest, subject to "all provisions, agreements, terms made the improvements on the premises at and conditions in said lease, * * *” and a large expense, with the knowledge and in this form it was prepared by the plainconsent of the defendants, and upon an tiffs' attorney and submitted to, and signed oral understanding with them, that if this by the defendants, and left in escrow with was done by him the lease should be extend him until after the time had expired during ed for a further term of five years. During which mechanic's lien might have attached, these negotiations, and in the oral agree when it was delivered to the plaintiffs at ment there was no reference whatever made the completion of the improvements. See to the right of cancellation, and from the Nickerson v. Massachusetts Title Ins. Co., testimony of the lessee, which is stated in 178 Mass. 308, 311, 59 N. E. 814. Neither his findings of fact by the presiding judge upon the face of this instrument, if considerbefore whom the case was tried, to have been ed independently, nor when read in connecentitled to full credence, it is apparent not tion with the lease is there any ambiguity only that he expended his money in good of expression any more than there is in the faith relying upon the representations of the lease itself, concerning the matter in dispute. defendants, that if he did so they would per That according to the understanding of the mit him to occupy the premises for the en lessee, when the term was extended, there tire term, but also that such expenditures should have been an exception inserted would not have been made if he had stating that all of the covenants and obliunderstood that they still claimed the right gations of the lease should continue in force to terminate his tenancy at their will. If except the lessor's right of cancellation is not the written agreement had merely prolonged sufficient. Under the guise of construction the term, without further details, and the by invoking the previous conduct and landefendants then had attempted to enforce guage of the parties the normal meaning of a cancellation, the plaintiffs would have been words cannot be explained away in equity able to defeat a forfeiture by proof of the any more than at law, even if by giving oral agreement, from which it could have them their common signification it may rebeen found that it was not within the contem sult, as in the present case, in allowing one plation of the parties to keep this condition party to the contract to obtain an advantage alive, as its enforcement would defeat the which otherwise would be inequitable. Kelobject for which the extension was granted. ley v. Cunningham, 1 Allen, 473, 474; VioDurkin v. Cobleigh, 156 Mass. 108, 109, 30 lette v. Rice, 173 Mass. 82, 84, 53 N. E. 144, N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. and cases cited. After receiving evidence of 436. But where after preliminary verbal the attendant circumstances by which to denegotiations have taken place the parties termine if the written contract expressed finally put their contract in writing an in the intention of the parties, it is then to be dependent contemporaneous oral agreement determined whether the part of the contract relating to the subject matter which is in alleged to have been omitted is covered by consistent with the terms of the instrument the writing. If it is, parol evidence is incannot be given effect to vary or modify its admissible. Goode v. Riley, 153 Mass. 585, provisions. Thomas v. Barnes, 156 Mass. 28 N. E. 228; Benson v. Gray, 154 Mass. 581, 583, 31 N. E. 683. This principle, how 391, 393, 28 N. E. 275, 13 L. R. A. 262; ever, is not in conflict with another well Reynolds v. Boston Rubber Co., 160 Mass. 240, settled rule upon which the plaintiffs rely, 245, 35 N. E. 677; Menage v. Rosenthal, 175 that for the purposes of interpretation, and Mass. 358, 56 N. E. 579; Boruszweski v. application, of the terms of a contract evi Middlesex Mutual Assurance Co., 186 Mass. dence showing the subject matter with which 589, 72 N. E. 250. There is no suggestion the parties dealt, the object which they that the execution and acceptance of the sought to accomplish, as shown by the pre agreement by the plaintiffs was procured by,
the fraud or misrepresentation of the defendants, neither is there evidence that since then in reliance either upon their conduct or representations the plaintiffs have been led or induced to change their position for the worse so that neither a waiver of this part of the contract, nor an estoppel which prevents its enforcement is shown. Stiff v. Ashton, 155 Mass. 130, 29 N. E. 203. Nor were: they concluded by the negotiations before the written agreement was reached, upon the view advanced by the plaintiffs that this provision having thus either been waived or the defendants estopped, it had ceased to be operative, and therefore was not included, as the undisputed language of the agreement itself affirms this right. Kent v. Warner, 12 Allen, 561, 563: Batchelder v. Queen Ins. Co., 135 Mass. 449, 450; Metropolitan Coal Co. v. Boutell Transportation & Towing Co., 185 Mass. 391, 70 N. E. 421.
Under our construction of the agreement, as we have said, it operated to continue the leasehold estate for the full term of nine years from the date of the lease, subject, of course, to the essential covenants and stipulations, and the notice given to the lessee, that the defendants elected to take advantage of the right to cancel having been preceded by a tender of the amount required if cancellation took place after the first year and a half of the term had expired, bad the effect of terminating the lessee's estate and interest in the premises. A majority of the court is of opinion the entry must be
cation for life insurance, insured will be presumed to have been cognizant of her physical history within the period to which the inquiries were confined, as well as whether she had consulted or been treated by a physician. 4. SAME-QUESTIONS FOR COURT AND JURY.
Where an applicant for a benefit certificate has suffered from a disease so grave that it is generally recognized as tending to shorten life, and fails to disclose the fact in answer to a question calling for such information, it may be ruled as a matter of law that the risk is thus increased, and the certificate is void ; but where insured, in reply to a question calling for the fact, has not been informed of a disease which, although serious, may not have such tendency, whether the risk has been increased is for the jury. 5. SAME - CONSULTATION OF PHYSICIANSMEDICAL TREATMENT.
In an action on a benefit certificate, whether the risk was increased by alleged false answers to questions in the application relating to the consultation of physicians or of treatment by them was for the jury.
[Ed. Note.--For cases in point, see vol. 28, Cent. Dig. Insurance, s 2009.] 6. SAME-BENEFIT CERTIFICATE-OBLIGATION OF ORDER.
Where a mutual benefit society accepted insured's application for membership and issued an insurance certificate to her, thereafter recognizing her as a member by receiving dues and assessments, it became bound on the face of the contract at her death to pay her beneficiary the benefit provided by the terms of the contract. 7. SAME-EXPULSION OF MEMBER-APPEAL.
Where proceedings for the expulsion of a member of a mutual benefit society were taken without notice to her to appear and defendi, as required by the by-laws, she could not be required to take an appeal from the expulsion order until notice of conviction and subsequenı expulsion had been received.
[Ed. Note.--For cases in point, see vol. 28, Cent. Dig. Insurance, 8 1835.] 8. SAME-NOTICE OF EXPULSION–TENDER.
A notice of expulsion of a member of a mutual benefit society and a tender of assessments, dues, etc., to the member's sister, who was not shown to have been authorized to act in her behalf, was inoperative to terminate the member's rights in the association. 9. SAME -- NONPAYMENT OF PREMIUMS - FORFEITURE-BY-LAWS.
Failure to comply with a by-law of a mutual benefit society, providing for forfeiture in case of a member's failure to pay assessments as required, operates to cancel the member's rights under his certificate to the same extent as a failure to comply with a similar clause in an insurance policy providing for payment of an annual premium.
[Ed. Note.--For cases in point, see vol. 28, Cent. Dig. Insurance, $8 1895–1906.) 10. SAME-BURDEN OF PROOF.
In an action on a mutual benefit certificate, the burden of proving a forfeiture for nonpayment of assessments is on the defendant.
[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, $ 2001.) 11. SAME-PLEADING.
Under Rev. Laws, c. 173, § 27, providing that an answer shall state clearly and precisely each substantive fact which is intended to be relied on in avoidance of the action, etc., failure of a member of a mutual benefit society to pay regular monthly assessments cannot be relied on as a ground of forfeiture in an action on the certificate, unless specially pleaded.
(192 Mass, 326) KIDDER V. SUPREME COMMANDERY UNITED ORDER OF GOLDEN
CROSS. (Supreme Judicial Court of Massachusetts.
Suffolk. June 20, 1906.) 1. INSURANCE —MISREPRESENTATIONS-EFFECT -STATUTES-BENEFIT CERTIFICATES.
Rev. Laws, c. 118, § 21, declares that no oral or written misrepresentation or warranty hy the insured shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk or loss. Held, that misrepresentations with reference to insured's physical history, occupation, and whether she had consulted and been treated by a physician, were ineffectual under such section to avoid a benefit certificate in a fraternal organization, unless such representations were made with actual intent to deceive and the subject misrepresented increased the risk.
[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1863.] 2. SAME.
Such section was only declaratory of the common law as to misrepresentations, and only operated to change the common law with respect to warranties. 3. SAME REPRESENTATIONS — CONDITION OF HEALTII-KNOWLEDGE-PRESUMPTIONS.
When considering and answering questions involving insured's physical history in an appli
Exceptions from Superior Court, Suffolk the application, and accepted her as an inCounty; William B. Stevens, Judge.
surable risk. During the year preceding Action by Gladys J. Kidder against the the application, the insured consulted a Supreme Commandery of the United Order physician, and also is shown to have reof the Golden Cross on a benefit certificate. ceived medical advice and treatment for In the superior court there was a verdict slight ailments in connection with her genfor plaintiff, and defendant brings excep eral health, the condition of which had tions. Overruled.
caused her being confined to her bed, for a Coggan & Coggan and G. L. Dillaway,
few days, but whether these ills should be for plaintiff. W. H. Powers and H. H.
deemed occasional, or classed as protracted Folsom, for defendant.
in character depended upon inferences to be
drawn from the evidence. In degree their BRALEY, J. The questions presented by difference is apparently so marked that the these exceptions may be taken up in the or jury would be justified in finding that the der in which they appear in the record. applicant truthfully declared, she had not Among the most important is the refusal suffered from any prolonged sickness, and to give five requests for rulings that as the representations that her health matter of law the answers of the insured perfect, and that no material facts bearing in her application which forms a part of the upon the subject had been suppressed could contract having been untrue, and the rep be found to rest upon her experience of a resentations being material, the certificate of complete recovery from the attacks of teminsurance either never attached, or was porary sickness, and also in her reliance voidable at the election of the defendant. upon competent medical opinion that she Under St. 1894, p. 684, c. 522, $ 21, as amended was not suffering from any organic disease. by St. 1895, p. 272, c. 271, now Rev. Laws, If from the testimony of the family physic. 118, $ 21, which has been held to include cian it could be said that she formerly had fraternal beneficary corporations, unless such believed a serious physical trouble existed, misrepresentations were made with an ac yet it also appears that from his diagnosis tual intent to deceive, and the subject mis this belief was groundless, and that she acrepresented increased the risk they were cepted and acted upon his opinion. Besides deemed to be ineffectual either to prevent this question was framed to cover actual, the policies from attaching, or to avoid not imaginary diseases the supposed presence them. Stocker v. Boston Mutual Life Asso of which until the sufferer is disabused of such ciation, 170 Mass. 224, 49 N. E. 116. By St. belief by competent medical advice is not 1901, p. 349, c. 422, $ 27, now Rev. Laws, c. uncommon. Where, however, an applicant 119, § 22, under which the certificate in suit has suffered from a disease so grave in its was issued, while this provision was made nature that generally it is recognized as inapplicable to such insurance the doctrine having a tendency to shorten life, and fails of the common law was not changed, for to disclose the fact in answer to a question the original statute as amended was only which calls for such information, it may declaratory as to misrepresentations, and be ruled as matter of law that as the risk did not formulate a new rule except as to is thus increased the policy is void. Brown warranties. Daniels v. Hudson River Fire V. Greenfield Life Association, 172 Mass. 498, Insurance Co., 12 Cush. 416, 425, 59 Am. 53 N. E. 129; Rainger v. Boston Mutual Dec. 192; White y. Provident Savings Life Life Association, 167 Mass. 109, 44 N. E. Assurance Society of New York, 163 Mass. 1.088. So a misstatement as to age if there 108, 115, 39 N. E. 771, 27 L. R. A. 398. See is a material increase of years subseqently Campbell v. New England Mutual Life In shown has the same effect. Dolan v. Mutual surance Co., 98 Mass. 381, 401. When con Reserve Fund Life Association, 173 Mass. sidering and answering the questions in 197, 200, 53 N. E. 398. But where the involving her past and present condition of surer in reply to a question calling for the bodily health, it may be said that the in fact has not been informed of a disease sured must be presumed to have been cog which although serious may not have this nizant of her physical history within the tendency, it is for the jury to say if the period to which the inquiries were confined, risk has been increased. Hogan 'v. Metroand also to have known if she had consulted, politan Life Ins. Co., 164 Mass. 448, 41 N. or been treated by a physician. Yet if these E. 663; Levie v. Metropolitan Life Ins. answers were in the negative they are not Co., 163 Mass. 117, 39 N. E. 792; White v. made warranties, but being representations Provident Savings Life Association Society, only they would not defeat the contract
Within the last category also unless intentionally false, and material to falls the answers to the questions relating the risk. Daniels v. Hudson River Fire to the consulting of physicians, or of treatIns. Co., ubi supra. Their falsity must be ment by them. The obtaining of medical found, if at all, in the extrinsic evidence, advice or treatment under some circumstanwhich substantially came from the physician ces may be indicative of such impairment whom she consulted, and subsequently em of health as to make the patient an undesirployed, and the medical examiner of the de able risk, or such acts may be only for the fendant, who after an examination, approved object of obtaining relief for common though
not incurable complaints which do not re was not perfected, and the vote of disconsult in any permanent physical derangement. nection, if treated as an act of rescission, It was for the jury to find under suitable and the notice given and tender made to her instructions whether the incorrect answers to sister, but who is not shown to have been these questions were material, or intention authorized to act in her behalf, was inoperally false. White V. Provident Savings ative for this purpose. Pollock, Cont. (7th Life Association Society, ubi supra.
Ed.) 580. See Howland v. Centennial Fire There was a further inquiry in reference Ins. Co., 121 Mass. 499. It is unnecessary to her occupation which seems to have been to express an opinion upon the validity of that of a housewife, and here it also could these proceedings, for if without granting have been determined that in so far as an opportunity of being heard before memsuch a question was applicable her usual bership was declared forfeited, they could calling had not been interrupted in the be upheld as valid until suspended by an sense that by reason of long continued or appeal, no effective notice of disconnection severe sickness she had been rendered in having been given there was no occasion capable of supervision of the household, or for resorting to this remedy. Neither is any incapacitated from resuming her ordinary la provision found that an appeal could be bor. These requests, therefore, were rightly prosecuted in her behalf by a stranger, and refused, and the instructions given fully and this ruling also was properly refused. Gray accurately stated at law.
v. Christian Society, 137 Mass. 329, 331, 50 The second exception is to a refusal to rule Am. Rep. 310; Karcher v. Supreme Lodge that if during the life of the decedent the Knights of Honor, 137 Mass. 363, 370. defendant rescinded the contract, and ex The third exception is to a refusal to grant · pelled or disconnected her from the order, a request, that a verdict be ordered in the it became her duty if she desired to con defendant's favor because by the self exetinue a member to exhaust by an appeal cuting action of one of its by-iaws a failure the exclusive remedies provided by its con by the decedent to pay or tender an assessstitution and general laws for reinstate ment that had accrued during her sickness ment. By accepting the application, issuing operated to dissolve her membership, and the insurance certificate, and recognizing forfeited the insurance. While her complete her as a member by receiving dues and physical and mental disability would not assessments, the defendant became bound relieve her from an exact performance of this on the face of the contract at her death condition, a by-law embodying this specific to pay to the plaintiff as beneficiary the purpose, which by reference is made a part benefit provided by its terms. Com. v. of the certificate, holds a place in this form Wetherbee, 105 Mass. 149, 160; Wuerfler of insurance similar to a clause of forv. Trustees of Grand Grove of Historical
feiture for a failure to pay the annual Order of Druids, 116 Wis. 19, 92 N. W. premium, after the first has been paid, as 433, 96 Am. St. Rep. 940. While this con provided in contracts of regular life insurtract contained no provision for cancellation ance. Wareham Bank v. Burt, 5 Allen, 113, at the option of the defendant either with 116; Thompson v. Insurance Co., 104 U. S. or without notice to the insured, it was 252, 259, 26 L. Ed. 765; Carpenter v. Cenprovided by these laws that any member tennial Life Ins. Ass'n, 68 Iowa, 453, 27 who gained admission by reason of any false N. W. 456, 56 Am. Rep. 855; Yoe v. Masonstatements contained in the application ic Mutual Bene. Ass'n of Baltimore, 63 should on conviction be expelled, but before Md. 86, 93; Com. v. Wetherbee, ubi supra ; such expulsion could be ordered the accused McAllister v. New England Mutual Life Ins. was entitled to be informed of the charges Co., 101 Mass. 538, 561, 3 Am. Rep. 404. made against him, and to be heard in his In either, such a provision is inserted for the defense. Without any previous notice giving benefit of the insurer upon whom consesuch an opportunity, and in obedience to an quently rests the burden of proving that order from the principal officer of the de by reason of noncompliance a forfeiture fendant, who was clothed with authority follows, either of the certificate, or of the to act in its behalf, the subordinate com policy. Kingsley V. New England Mutual mandery voted to return the amount pre Fire Ins. Co., 8 Cush. 393, 404; Hodsdon v. viously paid for dues and assessments, and Guardian Life Ins. Co., 97 Mass. 144, 93 to notify the decedent that having gained Am. Dec. 73; Rice v. New England Mutual admission through misrepresentation she had Aid Society, 146 Mass. 248, 252, 15 N. E. 624; been disconnected. But no tender was Lyon v. Royal Society of Good Fellows, 153 ever made, or notice communicated because Mass. 83, 84, 26 N. E. 236; Waterworth v. at the time the vote was passed, and until American Order of Druids, 164 Mass. 574, death she was mortally sick, and substan 42 N. E. 106; Campbell v. Supreme Lodge tially unconscious. If the action taken was Knights of Pythias of the World, 168 Mass. irregular a member, under the defendant's 397, 400, 47 N. E. 109; Petherich v. Order laws would not be called upon to appeal of Amaranth, 114 Mich. 420, 423, 72 N. W. until notice of conviction and subsequent 262; Ferguson v. Union Mutual Life Ins. expulsion had been received. By reason Co., 187 Mass. 8, 72 N. E. 358; Harris v. also of this condition the attempt to rescind North American Insurance Co., 190 Mass.
361, 369, 77 N. E. 493. But if under the present certificate lapse of membership by a failure to pay the regular monthly assessments works a forfeiture of the contract, this defense is not open to the defendant as it has not been pleaded, and it cannot be raised under an answer which as to this issue contains only a general denial. Rev. Laws, C. 173, § 27; Mulry V. Mohawk Valley Ins. Co., 5 Gray, 541, 543, 66 Am. Dec. 380; Orrell v. Hampden Fire Ins. Co., 13 Gray, 431, 434; Thayer v. Connor, 5 Allen, 25; Hodsdon v. Guardian Life Ins. Co., ubi supra; Pitt v. Berkshire Life Ins. Co., 100 Mass. 500, 503; Perley v. Perley, 144 Mass. 104, 107, 10 N. E. 726; Freeman v. Travellers' Ins. Co., 144 Mass. 572, 578, 12 N. E. 372; Shea v. Mass. Benefit Association, 160 Mass. 289, 35 N. E. 855, 39 Am. St. Rep. 475. It, therefore, becomes unnecessary to determine whether after the defendant had unreservedly declared not only that her membership was terminated, and the contract repudiated, but ordered the subordinate commandery, which was bound to obey its commands, not to receive dues or assessments, either from the insured, or from any person acting in her behalf, further tender of performance within the time elapsing between the vote and her death had been waived, or the defendant had become estopped from making such defense.
The exception to the refusal to give this ruling cannot be sustained, and the rulings given, that upon this issue there was no question of fact for the jury to determine, as they were only to decide if false representation had been made, were correct.
3. SAME-DIVISION OF PROFITS-RIGHT TO ACCOUNTING.
Where a joint-stock company with transferable shares is organized under an agreement that the death of a member shall not work a dissolution and that the firm property shall be held by certain stockholders under a declaration of trust in favor of the firm, a stockholder is entitled to maintain a bill to compel an accounting, if the trustees refuse or fail to divide accrued net profits. 4. EQUITY-REFERENCE-FINDINGS-CONCLU. SIVENESS.
Where a report does not contain the evidence, the master's finding of facts is final.
[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, 88 902, 923.] 5. JOINT-STOCK COMPANIES - TRANSFER or
SHARES — CONTRACTS TIME FOR PERFORMANCE-DEMAND.
A shareholder in a joint-stock company with transferable shares sold stock to a person entering the employment of the firm, under a contract that when the employment ceased the seller would repurchase the shares at their par value, plus the value of accrued dividends. After the death of the seller the employé notified the executor of the seller that he elected to terminate the employment on a certain date, and demanded a settlement as of that date. The executor arranged for a settlement by sale of the firm property. Held, that the employé could not be permitted to afterwards select a later date for settlement. 6. SAME-EFFECT-RIGHT TO PROFITS.
When the shares of the employé were repurchased by the executor, pursuant to the contract, all right to accrued profits passed to the executor, and the employé could not there. after maintain a bill for an accounting and distribution of the profits earned during the time he held the shares. 7. WORK AND LABOR SERVICE RENDERED AFTER TERMINATION OF CONTRACT.
Where a stockholder in and employé of a joint-stock company continued after he had elected to terminate his service under the contract of employment to render valuable services to the firm, with knowledge and consent of the managing partner, the employé was entitled, independently of any contract, to recover the reasonable value of his services.
[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Work and Labor, $$ 3, 4.) 8. EQUITY-REFERENCE-RECOMMITTING CASE.
A motion to recommit a case to a master and reopen it for further testimony should be addressed to the court, and its denial by the master is not a matter of exception.
[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, $ 926.]
Appeals from Superior Court, Suffolk County; Jabez Fox, Judge.
Two separate suits by Fred J. Taber against Charles H. Breck as executor of the will of Luther Adams, and another. The first suit was for specific performance of a contract between defendant's testator and plaintiff, by which testator agreed to sell to defendant certain shares of stock in a jointstock company, and at the termination of plaintiff's employment by the company to repurchase the stock at its par value, plus value of all unpaid dividends accrued, but not declared. The second suit was for an accounting and distribution of the profits of the company. From decrees granting a limited recommittal to the master and overruling
(192 Mass. 355)
TABER V. BRECK et al. (two cases). (Supreme Judicial Court of Massachusetts.
Suffolk. June 20, 1906.) 1. EQUITY - REFERENCE - REPORT - SETTING FORTH EVIDENCE.
Where a case is referred under orders not requiring a report of the evidence, a report setting forth the facts on which the master's rulings of law are based is sufficient, and the master need not report the testimony in detail or submit the evidence on which his conclusions were reached.
[Ed. Note.For cases in point, see vol. 19, Cent. Dig. Equity, 8 901.] 2. JOINT-STOCK COMPANIES ATTRIBUTESRIGHTS OF SHAREHOLDER-DEATH OF MEMBER.
Where a joint-stock company with transferable shares is organized under an agreement that the death of a member shall not work a dissolution and that the property shall be held under a declaration of trust by certain stockholders, the form of the association being intended to give the partnership the attributes of a corporation without its form or any change in the liability for firm debts, the right to contribution will be ascertained according to the shares held by each member, and the death of a partner will not require a division of the assets, but will entitle his legatees or distributees to succeed to his shares,