evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with." This rule was followed in Bonney v. Finch, 180 Ill. 133, 54 N. E. 318, and cases there cited, and is also recognized in the still later case of Caldwell v. McElvain, 184 Ill. 552, 56 N. E. 1012. Where the evidence shows that both the judges of election and the custodian of the ballots have failed to properly perform their duties (the one in receiving, counting, and returning the ballots, or the other in safely preserving them), neither the return of the judges nor the recount can be allowed to prevail over the other; but the result must be determined from a consideration of both, with all facts and circumstances surrounding the case. Catron v. Craw, 164 Ill. 20, 46 N. E. 3; Dooley v. Van Hohenstein, 170 Ill. 630, 49 N. E. 193; Caldwell v. McElvain, supra. There is, however, in this case no direct evidence of fraud, mistake, or misconduct on the part of the officers who conducted the election in any of the several precincts of the county. The only claim of proof of misconduct on their part made on behalf of appellant is that the recount shows that they were guilty of either fraud or mistake. But this is assuming that the recount of the ballots is better evidence than the returns, which is the very question at issue. The first point for decision must therefore be, were the original ballots so preserved by the county clerk from the time they were returned to him until they were brought into open court and offered in evidence as to entitle them to credit over the returns?

At the time the ballots were returned the incumbent of the office of county clerk was Stephen Maddock. He testified that he received and placed the ballots in the vault in the county clerk's office, and that they were not interfered with or handled by anybody during his term of office, to his knowledge, and that he turned them over to his successor, E. E. Ellidge, when the latter took the office, December 5th, in the same condition they were received by him, so far as he knew. His deputies also testified that they in no way disturbed or changed them, and that, to their knowledge, they were not interfered with by others; and the evidence of Ellidge and his deputies is to the same effect. No change whatever in the manner of keeping them was made after Ellidge took charge of the office. The vault in which they were placed is a small, triangular shaped room, about 42 feet in depth at the deepest place, and 6 or 7 feet long at the longest place. In it is a metal case for boxes, containing papers, and the base of this case is about 18 inches from the floor. No other furniture was in the vault. There was no access to it, except through the coun57 N.E.-50

ty clerk's office, and the one entrance to it had a heavy outside door and two inner doors; the latter being fastened by lock and key, and the outside door by a combination lock. The evidence clearly shows that after the count by the canvassing board the day combination alone was used, both day and night, in fastening the door. Hiram Lycan, one of the deputies of Mr. Maddock, testified that the vault was put in in 1891, and that he did not know that the day combination had ever been changed. He says: "The day combination was simple. I do not recollect the number. You just turned it to a certain figure, and then opened it. It was in that condition, usually, day and night. When the combination was on in full, it was very hard to open." W. E. Redmon, a deputy of Mr. Ellidge, testified: "The day combination cannot be changed." And he also says that with that combination the door could be unlocked without difficulty, even by one not knowing the combination, from the dropping of a lever and the sense of feeling, without looking at the plate at all. He further testified that he had seen some five or six different persons, who did not know the combination, open the door when the day combination was on; and six wit nesses testified that during the trial they opened the door fastened with the day lock without difficulty, not knowing the combination. There is nothing to discredit the testimony of these witnesses, unless it be, as contended by counsel for appellant, the improbability of their statements. We are not prepared to say, in view of all the testimony, that their evidence is not reasonable. All the witnesses agree that the day combination was very simple and easily understood, and we think it a matter of common experience with those at all familiar with such locks that the contents of a safe or vault are only secure when the full combination is turned on. Even if it be conceded that one not knowing a day combination could not open the door when locked, unless by accident, still, in view of the fact that no change had been made in this one during the incumbency of three different county clerks, and the ease with which one, when standing by when the door was opened, could see whether the turn was to the right or left, and even the number on the dial to which the lock was turned to unlock it, it must be admitted that the lock, with so simple a combination, afforded little or no security to the contents of the vault, against persons desiring or having a motive to interfere with them. It is not claimed on behalf of appellant that there was any diffi culty in entering the court house and county clerk's office, there being many keys which would unlock either. The evidence is also without contradiction that clerks in the county clerk's office, sitting at their desks, could not see the door of the vault. so as to detect persons entering it. There

sought to overcome the returns by recounting the ballots, have such ballots been so securely and carefully preserved as to assure the court that they have not been exposed to change? It cannot be too often or too strongly urged upon public officers having the custody of election ballots that they must exercise the highest degree of care and diligence in guarding them against unlawful interference. While the right to have the ballots so kept, and recounted upon a contest, is a most important right, frequently guarding a candidate against willful or negligent false returns, yet it can readily be seen that to allow a recanvass of the votes cast at an election to destroy the effect of the returns by the judges and clerks, when regularly made, and without proof of omission of duty, negligence, fraud, or other misconduct on their part, in the absence of the most clear and convincing proof that they have been so kept as to preclude all idea of their having been changed, would be most unjust, not only to those officers, but to candidates shown to have been elected by their returns. We think that the evidence in this record, when fully considered, falls far short of showing that the ballots in question were so kept and preserved, and that the court below committed no error in so deciding. Its judgment will accordingly be affirmed. Judgment affirmed.

(176 Mass. 468)

CLARK V. SUPREME COUNCIL, ROYAL ARCANUM, et al.

(Supreme Judicial Court of Massachusetts. Suffolk. July 2, 1900.)

FRATERNAL INSURANCE

CERTIFICATE

TRANSFER-ESTOPPEL-ASSESSMENTS PAID BY ANOTHER FOR HOLDER REPAYMENT BENEFIT FUND - DEBTS OF CERTIFICATE HOLDER-HUSBAND AND WIFE-CONTRACTS. 1. Plaintiff's husband was the holder of a benefit certificate in a fraternal beneficiary society, payable to his children. Plaintiff's husband promised that he would transfer the certificate to her, and, relying on the assurance that it had been so transferred, she paid assessments on the certificate, and also lent her husband money. The certificate was never transferred to her, and she took no steps to compel such transfer. Held, that plaintiff was not entitled to have the death benefit made payable to her, since the certificate could only be transferred as provided by the by-laws of the society.

2. Where plaintiff has paid assessments on a benefit certificate held by her husband, at his request, she is not entitled to have such assessments repaid to her out of the benefit fund.

3. Where plaintiff loaned money to her husband, she is not entitled to repayment, at his death, of the money due on a benefit certificate held by her husband, and payable to his children.

4. A contract between husband and wife is invalid and cannot be enforced in equity, and the fact that the wife survived her husband cannot make a good contract of that which was originally a nullity.

5. A person not named in a benefit certificate cannot be substituted for the one named, by operation of an estoppel.

Case reserved from supreme judicial court, Suffolk county.

Bill by one Clark against the Supreme Council, Royal Arcanum, and others, to determine who is entitled to the amount due under a benefit certificate. Case reserved. Dismissed.

This was a bill in equity to determine to whom should be paid an amount due under a benefit certificate issued to one Louis H. Clark, plaintiff's husband. The case was heard, and reserved for the full court.

Moulton, Loring & Loring, for plaintiff. W. H. Preble and F. B. Hemenway, for respondents Morris Clark et al. John Haskell Butler, for respondent Royal Arcanum.

LATHROP, J. The plaintiff's husband, according to the bill, had taken out a benefit certificate in a fraternal beneficiary society, in which, as both sides assumed at the argument, the children of the husband by a former marriage were named as beneficiaries. Her husband promised the plaintiff to transfer this certificate to her. Subsequently, relying on the assurance that it had been transferred, she paid assessments on the certificate from September 1, 1892, to January 30, 1899, to the amount of $330, and also at different times from June 5, 1892, to January 30, 1899, paid to him, or on his account, money to the amount of $5,000. The bill further alleges that, under the laws of the first-named defendant, the death benefit could have been made payable to her, and that the failure and neglect of her husband to make the certificate payable to her, and the statement that it was so payable, and the inducing her thereby to pay over to him and for his benefit the sum of $5,000, and to pay his dues and assessments, and to keep up his membership by making said payments, was a fraud upon her. bill prays that the death benefit shall be made payable to her, and that the firstnamed defendant shall pay to her the benefit fund, or that it may be decreed that said defendant or the other defendants shall repay to her, out of said fund, the amount of assessments she has paid.

The

A majority of the court is of opinion that the bill cannot be maintained. So far as paying the assessments is concerned, it has been held that one who pays assessments at the request of the holder of a benefit certificate has no right in equity to have them repaid out of the fund. Order of Golden Cross v. Merrick, 163 Mass. 374, 40 N. E. 183; Clarke v. Schwarzenberg, 164 Mass. 347, 348, 41 N. E. 655. Moreover, the policy of our law is that no contract shall be valid or legal which is conditioned upon an agreement or understanding that the beneficiary shall pay the dues or assessments, or either of them, for a member of a fraternal beneficiary corporation. St. 1888, c. 429, § 8; St. 1894, c. 367, § 8; St. 1898, c. 474, § 8. Apart from this, a death-benefit fund is, under our laws,

a peculiar species of property. It is not liable to attachment by trustee or other process, and cannot be seized, taken, appropriated, or applied by any legal or equitable process, nor by operation of law, to pay any debt or liability of a certificate holder, or of any beneficiary named therein. St. 1888, c. 429, § 15; St. 1894, c. 367, § 14; St. 1898, c. 474, § 17.

It is also to be considered that the dues and assessments have not been contributed to the death fund which it is sought to reach in this case. These dues and assessments have been paid to raise funds which paid the death benefits of other members who died before the plaintiff's husband. The fund in controversy here is raised by the society from those members who survived the plaintiff's husband; and the society and its members are interested in having the fund applied, according to the terms of the benefit certificate, in bettering the condition of those dependents of the deceased member, to whom he and the society had agreed that it should go, in the only form known to law. To give it to the plaintiff would be to divert a charitable fund from the specific purpose for which it was raised to a purpose not in any aspect charitable, so that restitution might be made for the consequences of a fraud perpetrated upon the plaintiff by her husband. So far as the plaintiff relies upon a contract made between her and her husband, it was invalid under our laws, and cannot be enforced in equity. Fowle v. Torrey, 135 Mass. 87, where this question was elaborately considered. See, also, Woodward v. Spurr, 141 Mass. 283, 6 N. E. 521; Porter v. Wakefield, 146 Mass. 25, 14 N. E. 792; Clark v. Patterson, 158 Mass. 388, 33 N. E. 589. Nor can the fact that the wife survived her husband make that a good contract which was originally a nullity. Kneil v. Egleston, 140 Mass. 202, 4 N. E. 573. Nor does the subsequent marriage of the wife to the member revoke or in any way affect the contract which he had made with the society. Order of Foresters v. Callahan, 146 Mass. 391, 16 N. E. 14.

As to the $5,000 there is less ground for impressing a trust upon the death fund. There is no allegation that the $5,000 lent to her husband by the plaintiff constituted any part of the fund. On the contrary, the allegation is that she paid the money to or on account of her husband. To impose a trust upon a fund, the money must be identified as going into the fund. See Institution v. Copeland, 160 Mass. 380, 35 N. E. 1132.

It is suggested that what has taken place operates as an estoppel against the defendants in favor of the plaintiff. But there is no more reason why a person not named in a benefit certificate should be substituted for one named, by the operation of an estoppel than by the operation of a contract or a will. Yet it is well-settled law in this commonwealth that in such cases a benefit certificate cannot be transferred except in the manner pointed out in the by-laws

of the society. Elsey v. Association, 142 Mass. 224, 7 N. E. 844; Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166; McCarthy v. Order of Protection, 153 Mass. 314, 26 N. E. 866, 11 L. R. A. 144. Where, however, the society does not object, and the transfer is prevented by the fraud of the beneficiary named in the certificate already issued, equity may afford relief. Marsh v. Legion of Honor, 149 Mass. 512, 21 N. E. 1070, 4 L. R. A. 382.

The facts in the principal cases relied on by the plaintiff in argument differ essentially from those in the case at bar. In Jory v. Legion of Honor, 105 Cal. 20, 38 Pac. 524, 26 L. R. A. 733, Mrs. Jory took out a certificate payable to her daughter upon her own death, and handed the certificate to her daughter. Subsequently the mother desired to surrender the certificate and obtain another, in which her son was to be named as beneficiary. She attempted to obtain the old certificate from her daughter, but the daughter refused to give it up, and kept and concealed the same. The mother then took all the steps required by the laws of the beneficiary society to obtain a new certificate. The society declined to issue a new certificate until the old one was surrendered. On the death of the mother the society brought a bill in equity against the son and the daughter to determine to whom the money belonged. The case was decided on the ground that, as the mother had done all in her power to procure a new certificate, equity would consider that to be done which ought to have been done, but it was further said, "If the Legion of Honor was here as an aggressive party, insisting, as against the claims of the son, upon a strict compliance with its by-laws before it could be compelled to take money from its treasury, possibly a different question would be presented." Another ground upon which the case was put was the fraudulent conduct of the daughter in concealing the certificate, and it was said that she could not take advantage of her own wrong. In the case at bar the plaintiff took no step for over six years to ascertain whether her husband's representations were true or false, nor did she make any effort to procure a transfer from the company. The children named in the certificate are innocent parties, guilty of no fraud, and the society granting the certificate asserts its right that its laws shall be complied with. In Royal Arcanum v. Tracy. 169 Ill. 123, 48 N. E. 401, a man borrowed a sum of money from his wife, and took out a certificate in which she was named as beneficiary, which he gave her as security for the loan, and she retained it. Subsequently he made an affidavit that the certificate was lost, and obtained a new certifi cate, naming other persons as the benefici aries. It was held that the second certif icate, having been obtained by fraud, could not prevail against the first certificate. It is to be noticed that under the statutes of

Illinois, as construed by the court, a husband and wife may contract with each other, except as to compensation for services. Thomas v. Mueller, 106 Ill. 36; Crum v. Sawyer, 132 Ill. 443, 24 N. E. 956. See, also, Benard v. Ancient Order of United Workmen (S. D.) 82 N. W. 404,-a case very similar to Royal Arcanum v. Tracy. These cases differ so widely from the case at bar that comment upon them is unnecessary. We do not doubt that a wife may maintain a bill in equity against her husband, in his lifetime, to recover her separate property obtained from her by his fraud and coercion. Frankel v. Frankel, 173 Mass. 214, 53 N. E. 398. But the case at bar is not such a suit. The husband is dead, and her remedy, if any, is against his estate. As to whether she can maintain a bill in equity against the administrator we express no opinion, as this question is not before us. See Houghton v. Butler, 166 Mass. 547, 44 N. E. 624. Bill dismissed.

(176 Mass. 442)

J. H. WENTWORTH CO. v. FRENCH et al. (Supreme Judicial Court of Massachusetts. Middlesex. June 21, 1900.) CORPORATIONS-PLEDGOR OF STOCK-RIGHT TO VOTE-MANDAMUS.

1. Pub. St. c. 105, § 25, provides that a certificate of stock issued as a pledge shall so state, and also give the name of the pledgor, who alone shall be responsible as a stockholder. A certificate stated that it was held as collateral for the note of J.. but did not state that he was the pledgor. Held, that the statute was not complied with, and hence the pledgee who held the certificate was entitled to vote the stock, rather than the pledgor.

2. Where, in a suit to establish a pledgee's right to vote certain stock, a decree ordered the certificate of stock to state that it was held as collateral to the note of J., it will be presumed that the decree intended a certificate to be issued in compliance with Pub. St. c. 105, § 25, providing that such a certificate shall give the name of the pledgor, who alone shall be responsible as a stockholder, and mandamus will not issue declaring that officers elected by the pledgee's vote are properly elected, notwithstanding the certificate issued to such pledgee did not state the name of the pledgor, as required by statute.

Petition for mandamus by the J. H. Wentworth Company against George E. French and others. Dismissed.

Elder, Wait & Whitman, for complainant. Jesse C. Ivy, for defendants.

HOLMES, J. This is a petition for a writ of mandamus declaring that Benjamin Dickerman, George W. Dickerman, and Charles W. Boynton are the duly-elected directors, and that Benjamin Dickerman is the dulyelected treasurer and clerk, of the petitioning corporation. Benjamin Dickerman is the holder of a certificate for 100 shares of stock in the company, which states on its face that it is "held as collateral for the note of James H. Wentworth for ten thousand ($10,000), dated April 8, 1898." There has been no

breach of the conditions of the pledge. If Benjamin Dickerman had the right to vote on these shares, then the persons named have been elected directors, treasurer, and clerk, and, subject to certain questions to be dealt with, a peremptory writ ought to issue, as in Railway-Frog Co. v. Haven, 101 Mass. 398; otherwise the petition should be dismissed.

The corporation has to go by its record in determining the right to vote, and therefore, if a certificate of stock shows a certain person to be a member, the corporation must recognize him as member, with the right to vote as an incident to his membership. Crease v. Babcock, 10 Metc. 525, 545; Bank v. Case, 99 U. S. 628, 631, 25 L. Ed. 448; Adderly v. Storm, 6 Hill, 624, 627; Franklin Bank v. Commercial Bank, 36 Ohio St. 350, 355; Magruder v. Colston, 44 Md. 349, 356; Com. v. Dalzell, 152 Pa. St. 217, 223, 25 Atl. 535. If the certificate holder is a pledgee, it may be that before breach the pledgor will be recognized in equity as the general owner for the purpose of voting as for other purposes. But in such cases the result has been worked out by compelling the holder to give a proxy to the pledgor, and thus the conclusiveness of the record for corporate purposes has been left unimpaired. Vowell v. Thompson, 3 Cranch, C. C. 428, Fed. Cas. No. 17,023; Hoppin v. Buffum, 9 R. I. 513, 518.

The provision in Pub. St. c. 105, § 25, by which a certificate of stock issued as a pledge or the like shall express the fact and the name of the pledgor, "who alone shall be responsible as stockholder," goes back through Gen. St. c. 68, § 13, to St. 1838, c. 98, § 3, and, it would seem, may have been suggested by the case of Crease v. Babcock, as the bill in that case was brought in 1837. When the requirements of that section are complied with, the form of the certificate allows the pledgor to be recognized as the member of the corporation for the purpose of voting as well as for the purposes of fixing responsibility, and under such circumstances the general understanding is that he is the proper person to vote. The statute in a different way reaches the result which equity reached by compelling the pledgee to give a proxy.

But the general rule remains that, as against a corporation of which the stock is outstanding in the hands of third persons, no one has a right to vote except in the name of some one recorded as a member. In the case at bar the statute was not complied with. The certificate, to be sure, shows that Dickerman holds the stock as collateral security, but it does not show the name of the general owner. It simply states that the stock is collateral for the note of J. H. Wentworth. If it should be suggested that the language conveys by inference that J. H. Wentworth was the pledgor, the answer is that while, in a literal sense, that is the fact.