Baldwin, J.
The Supreme Sitting of the Order of the Iron.Hall was duly incorporated under the general laws of the State of Indiana, in 1881. Its corporate purposes were defined, in the third of its Articles of Association, as being “ to unite in bonds of Union, Protection and Forbearance all acceptable white persons of good character, steady habits, sound bodily health, and reputable calling, who believe in a [175]*175Supreme Intelligent Being, the Creator and Preserver of the Universe; to improve the condition of its membership morally, socially and materially, by instructive lessons, judicious counsel and timely aid, by encouragement in business, and by assistance to obtain employment when in need; to establish a Benefit Fund from which members of the said Order who have complied with all its rules and regulations, or the heirs of such member, may receive a benefit in a sum not exceeding one thousand dollars ($1,000), which shall be paid in such sums and at such times as may be provided by the laws governing such payment, or in the certificate of membership, and when all the conditions regulating such payment have been complied with.”
Its “ proper officers ” were to have “ power, at any time when a liability on account of the sickness, disability or maturity of certificate of a member entitled to a benefit under number three of these Articles occurs, to make the proper and specified assessment, under the prescribed regulation, to meet such liability.”
By Article II, see. 3, of the “ Constitution ” of the Order, duly adopted pursuant to its Articles of Association, one of its objects was particularly declared to be “to establish a Benefit Fund from which those who have held membership in the Order for thirty days or more may, should they so desire, on proper application, and complying with all the rules and regulations governing said Benefit Fund, become participants therein and may receive the benefit of a sum not exceeding twenty-five dollars per week, nor more than one half of the sum total held by each member, when, by reason of disease or accident, they become disabled from following their usual occupation, or an amount of not more than one thousand dollars when they have held a continuous membership in the Order for seven years. Provided, however, That the sum total drawn from this Order by any of its members shall never exceed, both in sick, disability, and other benfits, the sum named in the certificate of membership.”
[176]*176Among the “ Laws of the Supreme Sitting,” made pursuant to its Constitution, were the following:
“Law I.
“ BENEFIT FUND.
“ Section 1. There shall be attached to this Order a Benefit Fund, in which members may participate (except social members), as they may severally elect, either in the sum of one thousand dollars, eight hundred dollars, six hundred dollars, four hundred dollars or two hundred dollars, on which they shall pay the rates and be entitled to the benefits prescribed in the following table. The members of the Sisterhood Branches (except social members) may participate in the Benefit Fund, as they may severally elect, either in the sum of six hundred dollars, four hundred dollars or two hundred dollars, on which they shall pay the rates and be entitled to the benefits prescribed in the following table : Provided, That all payments shall be made in accordance with the following sections, and in no other way or manner :
“ Table of Rates and Benefits.
Amount Paid on Weekly Benefit Each Assessment. when Sick or Disabled. Amount Paid on Total Disability. Payable at Death. Benefits Paid at End of Seven Years not to Exceed
$2.50 $25.00 $500.00 $500.00 $1,000.00
2.00 20.00 400.00 400.00 800.00
1.50 15.00 300.00 300.00 600.00
1.00 10.00 200.00 200.00 400.00
.50 5.00 100.00 100.00 200.00
“Law II.
‘ KESEB.YE FUND.
“ Section 1. Twenty per cent of the amount received by each Branch on each assessment shall be set aside and retained as a Reserve Fund. At the expiration of the first term of six years and six months from the date of the organization of the Order, one seventh of the reserve Fund -then on hand shall be called for by the Supreme Accountant and [177]*177used by the Supreme Cashier in the payment of benefits, and annually thereafter one seventh of the Reserve Fund on hand-shall be called for, and used in like manner.
“ Sec. 2. Each Branch shall have supervision of the Reserve Fund, and when said Reserve Fund shall amount to fifty dollars, the Trustees, in conjunction with the Cashier of the Local Branch, shall invest the same in registered United States Government bonds, county and city bonds, in first class mortgages on real estate, or it shall be deposited at interest in some reputable savings bank: Provided, That no loan shall be made for a longer period than six years from the end of the term to which said Reserve Fund belongs, interest to be computed, or paid, semi-annually. Should a loan be made on real estate, it shall be on first mortgage, and not exceed one half of the taxed value, of said real estate. No Local Branch of the Order shall loan any portion of its Reserve Fund on chattel mortgages, and any Local Branch that shall allow its officers to loan any of the Reserve Fund or its accumulations contrary to law shall be declared suspended by the Supreme Justice, and shall not be reinstated until all funds are safely secured to the Order as the law directs.
“ Sec. 8. Each Branch may remit its Reserve Fund to the Supreme Cashier for investment by the Supreme Trustees to the credit of said Branch, charging him with the amount of such Reserve Fund so remitted for investment, and the Supreme Cashier shall receipt for the same on an official blank for that purpose. The Supreme Trustees are hereby empowered to invest said funds in accordance with Section 2 of this law.
“ Sec. 2. When the amount received for one assessment, less the Reserve Fund, as Provided for in Law II, Section 1, shall equal an amount less than one thousand dollars, the sum to be paid shall in no case exceed the amount of one assessment, less the reserve. In such case, if the member’s certificate be in the amount of one thousand dollars, he shall [178]*178receive not more than the whole amount of said assessment; if in the amount of eight hundred dollars, not more than four fifths of said assessment; if in the amount of six hundred dollars, not more than three fifths of said assessment; if in the amount of four hundred dollars, not more than two fifths of said assessment; and if in the amount of two hundred dollars, not more than one fifth of said assessment; and said amounts shall be all that can be claimed by any one.
“ Sec. 4. Each member of the Benefit Fund on becoming liable; shall pay to the Accountant the amount prescribed in the foregoing table on account of the Benefit Fund, and the same amount on each assessment thereafter while he remains a member of this Order. The Accountant shall keep the date when such payment is made, and credit the member with the same in the books provided for that purpose.
“Sec. 5. The sum as prescribed in the member’s certificate shall be paid to the member, his widow, or the legal heirs of said member, in case of sickness, disability or maturity, and such payment shall be made as hereafter prescribed; and according to the conditions set forth in said certificate.
“ Sec. 6. On the sickness or disability of a member, or the maturity of-a certificate, the Accountant of the Local Branch shall immediately notify the Supreme Accountant upon the official blanks provided for that purpose by the Supreme Sitting, giving full particulars.and the date of the last assessment paid by said member.
“Sec. 11. On receipt of duly approved claims for sickness or disability, or maturity of' certificate of a member, the Supreme Accountant shall draw an order on the Supreme Cashier in favor of the proper person or persons for the amount due, signed by the Supreme Justice, and forward the same to the Accountant of the Local Branch of which the beneficiary is a member: Provided, That in case of continuous sickness or disability, a member shall be entitled to present a claim for benefits at intervals of four weeks or less, and shall be entitled, when approved, to a payment on account of said claim, for which the member shall give to the Supreme [179]*179Sitting a receipt in full of said payment, and in all cases it shall be charged upon the Benefit Fund ledgers of the Supreme Accountant and Supreme Cashier.
“ Sec. 12. Upon receipt of the order for the payment of a sickness or disability benefit, or a matured certificate, the Accountant shall immediately turn the same over to the person or persons in whose favor it is drawn; before delivering the order, he shall obtain a receipt in full of said payment *on the certificate, and instruct the member to forward the warrant to the Supreme Cashier for payment: Provided, That in cases of the maturity of certificate, when the payment cancels the certificate, the certificate duly canceled and attested by the officers of this Local Branch, must accompany the warrant for collection.
“Sec. 14. After paying any of the above benefits, if the Supreme Treasury requires, an assessment shall be made; the Supreme Accountant shall make a call on each Local Branch for the money of each member belonging to the Benefit Fund. Such call shall be in accordance with a form prescribed by the Supreme Sitting, and shall include a list of all claims received for adjustment subsequent to the last assessment.
“ Sec. 15. Whenever an assessment is called for, the Accountant shall certify to the Cashier the amount's due the Supreme Treasury on account of the Benefit Fund by the terms of the call of the Supreme Accountant. The Cashier of the Local Branch shall thereupon immediately forward to the Supreme Cashier the amount so certified by the Accountant, and at once notify the Accountant of this Branch in writing of the amount so forwarded. A Branch failing to comply with this section within thirty days shall stand suspended from that date until all arrearages are paid. And should a Branch fail to pay all arrearages within thirty days from the date of suspension, they shall be declared defunct, and the Reserve Fund, charter, and all other property shall be at once demanded by the Supreme Accountant in accord • anee with laws governing the same.
“ Sec. 16. When an assessment is made it shall be the duty [180]*180of the Accountant to at once notify every member liable to the said assessment that the same has been issued. Assessment notices shall bear the seal of the Branch, and shall be upon the blanks furnished by the Supreme Sitting, and its date shall be the same as that of the notice received from the Supreme Accountant. Each member who fails to pay the assessment called for, to the Accountant, within thirty days from the date of the notice, shall stand suspended without further notice. Any Branch failing to enforce the law against any member who becomes delinquent on assessments shall pay out of its general fund all assessments and fines which become due from such member, and which are not paid by them, so long as they are permitted to remain in good standing.
“ Law V.
“ Sec. 8. Any Branch failing to comply with the Constitution and Laws of this Order, after becoming suspended, shall become liable to the Supreme Sitting for all that appears in its Benefit, Reserve and General Fund accounts, as kept by the Supreme Accountant, and more, if so shown by the accounts of the Branch ; and does hereby agree, should suit be instituted against such Branch, upon proper proof of the correctness of the account, to confess judgment for the same and all costs incurred by the Supreme Sitting in making such collections, and that each officer and member thereof agrees thereto to become immediately responsible to the Supreme Sitting for the whole amount of such judgment.”
Each local branch annually elected, among other officei’s, an Accountant, Cashier, and three Trustees; and the “ Constitution governing Local Branches ” contained the following provision:—
“Article V.
“ Sec. 10. The trustees shall have the general supervision of all the property of this Branch. They shall, in conjunction with the Cashier, invest in such securities as they know to be safe such sums as this Branch orders drawn from the treasury for that purpose. They shall have the custody of all securities of this Branch for money loaned or invested, [181]*181except, should the Branch become suspended, they then go into the hands of the Supreme Trustees. They shall collect or realize all such sums when so directed by this Branch. They shall collect all the interests, rents or other money arising from said investments belonging to this Branch, and pay the money collected by them to the Accountant. They shall, on the 30th day of June and the 31st day of December of each year, report their transactions to this Branch, and make an inventory of all property. Before entering upon the duties of their office they shall each give bond, with approved security, for such sum as this Branch may require for the faithful performance of their duties, provided, the sum shall not be less than five hundred dollars each, which bond shall be approved by the Branch and deposited with the Supreme Justice.”
Every member electing to participate in the “Benefit Fund ” received, on the application of his “ Branch,” a certificate from the “ Supreme Accountant,” in a form, duly prescribed by the Supreme Sitting, reading as follows:
“ Supreme Sitting $1,000.00
No. of the ORDER of the IRON HALL. Membership Certificate.
“ THIS CERTIFICATE is issued to ....................... a member of Local Branch No.......ORDER OF THE IRON HALL, located at_________________________, State of................ Upon evidence received from said Local Branch that........ ......was duly initiated on the______day of____________, 189___, and upon the conditions that the statements made by him in his application for membership in said Local Branch and the statement certified to by him to the Medical Examiner, both of which are filed in the Supreme Accountant’s office, be and are hereby made a part of this contract, and upon conditions that the said member complies with all the laws, rules and regulations now governing said Local Branch and its funds; and that said member further agrees to comply with all future laws that may be hereafter enacted by the [182]*182Supreme Sitting to govern said Branch and funds. These conditions being fully complied with, the Supreme Sitting Order of the Iron Hall hereby promises and binds itself to pay out of its Relief and Reserve Funds a sum not exceeding
ONE THOUSAND DOLLARS
in accordance with and under the provisions of the laws of the Order governing such funds and their payments, upon satisfactory evidence of the sickness, disability or death of said member, or upon its termination, upon the proper receipt of partial payments made thereon, and upon the surrendering of the Certificate at its legal termination: Provided that said member is in good standing in this Order and provided also, that this Certificate shall not have been surrendered by said member to any other person or persons except in case of death to his legal heirs in accordance with the laws of this Order.
“ It is fully understood and agreed that the mailing of notices of assessments to the last known residence or address of the member ten days prior to the expiration of the time named therein, within which the payment called for thereby should be made, or the personal delivery of such notices three days prior to said expiration of time, shall be a final and legal serving of the same, and when so mailed or delivered, all responsibility of the Order, or any Branch or officer thereof, shall finally cease and determine.
“ This Certificate shall be in force from its date, when attested by the signatures of the Chief Justice and Accountant, and an impression of the Seal of the above named Branch and accepted by the afore-mentioned member all in accordance with the form printed thereon. Tf not so attested and accepted, within three months from its date, it shall become ipso facto, null and void, and of no effect whatever.
“ IN WITNESS WHEREOF, We have hereunto attached our .signatures, and affixed the Seal of the Supreme Sitting of the Order of the Iron Hall, this ............day of........, A. D. 189...,
(Seal) E. J. Waeker, F. D. Somerby,
Supreme Accountant. Supreme Justice.
[183]*183“ I accept this Certificate on the conditions named herein, to take effect on the ..................day of ___________189.___, on which date I became a Beneficial Member, in accordance with the Laws of the Order.
“ Witnessed and delivered in our presence,
[[Image here]]
Signature of Member.”
On the back of this paper was printed the following form of a receipt for the payment of the benefits stipulated, on a final settlement:
“ Final Surrender. .
“RECEIVED OF------------------ Cashier of Local Branch No___________ ORDER OF THE IRON HALL, Benefit Fund Warrant No........., on the Supreme Cashier of said Order, in the sum of .....................Dollars, the same being in full of all claims against the SUPREME SITTING of the ORDER of the IRON HALL, or against any Branch or officer of said Order, which exists under or on account of the within Membership Certificate, which is hereby surrendered.
Person Receiving Benefit.
“ We hereby certify that the person who has signed the above receipt and surrender is the proper (Seal of Branch) party to receive the Benefit, and that _________signature is genuine.
Accountant. Chief Justice.”
All the funds now in the bands of the Connecticut receiver were collected by him from local branches of the Order in this State, or from trustees appointed by them, and belonged to the “ Reserve- Funds ” held for the benefit of Members of the Order who had elected to take benefit certificates.
[184]*184It is plain that the contract set forth in these certificates is one between the holder and the Supreme Sitting of the Order of the Iron Hall, and that the promise of the latter for the ultimate payment of the stipulated benefit is not made dependent on the sufficiency of the Reserve Fund of the particular local branch to which the holder belongs, nor secured by any pledge of such fund. If the entire Reserve Fund of any local branch should be lost, by unfortunate investments, whether made by the local trustees, or the “ Supreme Trustees” of the corporation, its obligation to meet the certificates held by members of such branch would be unaffected. Of the assessments payable from time to time under Law I, sec. 1, eighty per cent went immediately into the treasury of the corporation, to reimburse it for payments already made on matured certificates, or to be used for the payment of certificates as they might mature, without any discrimination between the members of different branches. The remaining twenty per cent was to be retained and invested subject to be drawn upon, in favor of the Order, only to the extent of one seventh of its total amount annually, which was to be “ used by the Supreme Cashier in the payment of benefits.”
Ffiph local Reserve Fund was therefore a fund held in trust for the payment, through the general officers of the corporation, in its behalf, and out- of its treasury, of benefits to certificate holders. In the hands of the receiver appointed by the Superior Court, it stands, of oourse, oharged with the same trust,
If the corporation were now in a condition to fulfill its obligations to certificate holders, by the aid of the several trust funds held by the local branohes, and to discharge the trusts Upon which it might reoeiye them, aooording to the terms of the certificates and the rules of the Order, it would be our duty to advise that the reoeiver in this State should remit all moneys in his hands to the proper officers of the, Order, But the corporation'is insolvent, and unable to carry out the purposes of its organization ; and has assigned all its right and title to these funds to James F- Failey, a citizen o,f In[185]*185diana, wlio had previously been appointed by a court of that State, receiver of all its estate, wherever situated.
Mr. Failey, as such receiver and assignee, has appeared as a defendant in this cause, and claims the funds.
Before the courts of Connecticut can sanction such a change of trustees, they must be satisfied that no injustice would thus be done to the citizens of their own State. The local branches and trustees, out of whose charge these funds have been taken by the order of the Superior Gourt, have appeared before us, and in behalf of those whom they represent, unanimously object to any transfer to the Indiana receiver. By the decree of the court under which he, Failey, was appointed, made on August 23d, 1892, he was ordered to collect all Reserve Funds in the hands of any local branches, whether within or without the State of Indiana, and all such branches were ordered to pay the same to him, and enjoined from any other disposition of them. He was also required to report to the court any instance of neglect to comply with the terms of such order, on the part of any person or branch, “ when such further order will be made in such behalf as to the court shall in such case seem meet.” All branches making such payments by October 10th, 1892, were to be entitled to share in the distribution of the estate. On December 2d, 1893, another decree was passed in the same suit, confirming that of August 23d, as to the provisions above mentioned, except that the receiver was directed to inform the courts in other States, which had appointed receivers of the corporation, of the terms of both decrees, and request them, and the receivers by them appointed, to account to him, and to pay over to him all moneys in their hands, “ to be by him taken and held, together with the funds on hand, as the property of said defendant, the Supreme Sitting of the Iron Hall, which moneys, together with all the other moneys coming to the hands of said receiver herein, shall be hereafter equitably distributed among the creditors and certificate holders of the said defendant.” All members of local branches thereafter properly accounting for and paying over' to him, within a reasonable time, all money and property in their [186]*186possession, or who had accounted, or might within a reasonable time account, in any other State to any local receiver, who thereafter, within a reasonable time, should account for the same to Mr. Failey, as principal receiver, were declared entitled to share in the distribution of the funds in the latter’s hands, when made, equally and ratably “ with the creditors and certificate holders of the said defendant corporation.” Any neglect or refusal of any courts or receivers to comply with the request of the Indiana receiver for a transfer to him of the funds in their custody, he was “ directed with due speed to report,” whereupon such order was to be made “ as at such time may seem proper.”
These provisions of the decree were predicated on a finding that “attachment and receivership suits have been brought against the defendant, the Supreme Sitting of the Order of the Iron Hall, in very many States and jurisdictions throughout the United States, and that in such proceedings the courts have taken into possession and control the property of the said defendant, the Supreme Sitting of the Order of the Iron Hall, in such States and jurisdictions, and now hold the same under the orders of the various courts.”
The following facts are also set forth in the same finding:— At the commencement of the suit in Indiana, which was on July 29th, 1892, there were over a thousand local branches of the Order in different parts of the United States and Canada, of whose members over sixty thousand held benefit certificates. The Order had received nearly six million dollars net, from these certificate holders, and their certificates called for benefits which, at the maximum rate, would amount to about $49,000,000. To meet these obligations the Order had in its treasury, to the credit of the “ Benefit Fund,” about a million dollars, according to its books; of which, however, owing to fraud and mismanagement, less than a quarter of a million was available. It also had on hand nearly $350^000, belonging to the “Reserve Fund,” and the several local branches had under their control further sums belonging to the same fund, to the aggregate amount of $1,360,000. The other funds of the Order amounted to but [187]*187about a quarter of a million dollars. The several local “ Reserve Funds” held in Connecticut amounted to $18,667.05, aud the Connecticut certificate holders who had paid it in, had therefore contributed to the “ Benefit Fund” $74,668.20, which had been remitted to the general treasury. They numbered 1098. Four of the Connecticut branches had accounted to the Indiana receiver, and paid over to him, together, over $8,000. Two of them, after his appointment, distributed the “ Reserve Funds ” in their hands among their members. All of them have ceased to hold regular meetings, and to carry out the purposes of their organization.
On February 25th, 1893, Mr. Failey filed in the Superior Court, in the present action, his claim to all the funds in its custody, in which he states that they belong to him as principal receiver, “ for the benefit of all the creditors of the corporation, to be distributed according to the constitution and laws of the corporation; and that no particular branch anywhere situated has any claim to the reserve fund, but that the same and all reserve funds belong to the Order.”
The local branches in Connecticut, from whom or whose trustees the Connecticut receiver has collected the funds in controversy, have a right to be amply protected by the court in obedience to whose decree they have made such payments ; and this'right extends equally to those by whom these funds were originally contributed—the certificate holders, who became such as members of these branches.
The first Indiana decree proposed to admit to a share in the distribution of the funds coming into the hands of the Indiana receiver, those having property of the Order in their possession who accounted to him by October 10th, 1892. The decree of December 2d, 1893, extended the limit to “ a reasonable time ” after notice from him of his claims. Such notice was given to the parties to this suit a year or more ago, by the pleadings on filé. The Indiana decree does not appear to recognize, as a justification for delay in such accounting, the orders of .courts in other States having jurisdiction of the parties in interest. It seems also to make no distinction, as to those entitled to share in the funds that [188]*188may come into the hands of the Indiana receiver, between general creditors of the Order, and the holders of its benefit certificates.
In opposition to the claim of Mr. Failey, it has been urged in argument that he is before us in the position of a plaintiff, having no better rights than the Order of which he was appointed receiver, and has since become the assignee; and founding his title to recover the funds in controversy upon a fraudulent compact, namely, the scheme under which the Order was organized aud conducted. The fraud is said to consist in the offer to certificate holders of more than the assessments to be made upon them could justify; and it is argued that if they were parties to the wrong, they occupy in this cause the position of defendants, in possession of the fund, so far as equitable right is concerned, and may therefore invoke the protection of the rule, In pari delicto melior est conditio possedentis. But the certificates contain no promise to pay any particular sum, nor do the constitution or laws of the Order impose any limit on the number of assessments that can be laid. The obligation of the corporation —so far as appears from the face of the papers which express it—would be satisfied by paying the holder of a matured certificate any sum, however small, and its right to enforce contribution from him is only limited by reference to the necessities of the treasury on account of previous payments on other certificates.
There was no representation that the assessments or other funds of the Order, except the twenty per cent Reserve Fund, were to be left to accumulate, to provide means for the ultimate payment of what might become due on certificates. On the contrary, it was expressly stated that such assessments were to be used to/reimburse the Order for prior expenditures. The obligations of each year were to be discharged by the use of four fifths of the assessments of the year, and the remaining fifth only was to be kept for future recourse. In ordinary contracts of life insurance, where a fixed sum is promised, in consideration of'fixed premiums, paj'able at stated intervals, the maintenance of an adequate [189]*189and accumulating reinsurance reserve is an essential part of of the plan; but what is known as “ co-operative insurance ” proceeds upon a different theory, and relies mainly upon the assessments and lapses of each year to meet the calls for maturing benefits.
It has also been argued that if there be no fraud apparent in the constitution, rules, and laws of the defendant Order, yet its whole dealings in this State have been of so fraudulent a character as té deprive its assignee and receiver of any right to claim the funds in controversy by an appeal to the doctrine of comity. The Superior Court has found that the Order was duly incorporated under the laws of Indiana; and it has not found any facts showing as matter of law the existence of fraud .in its contracts or management in this State. It is evident that the rules and laws of the corporation are such as to furnish an easy means for designing men, if placed in official positions, to entrap the unwary by false and alluring representations as to the large returns to be derived from small contributions. The seal of the Order, displayed on the benefit certificates, and on the pamphlet containing the constitution, rules and laws, bears upon its face the device of a safe with the figures “ $1,000.” at its top, and beneath it the words “in seven years” One of the rules, which provides that if two assessments are laid in any month, the first shall be laid on the first day of the mouth, and the second on the fifteenth, might easily give a casual reader the impression that in no month could more than two assessments be laid, whereas treble that number could hardly suffice to provide for the maximum benefits. But while these are all circumstances entitled to great consideration, upon any inquiry into the truth of charges of fraud against the officers of the Order, they do not establish its existence as a conclusion of law. Fraud is never presumed. The place to prove it, in a case like this, is in the Superior Court, and the record of the proceedings in that court fails to show that the charge now made was there maintained.
Nor do we think the standing of the corporation, or its receiver before us, is affected by General Statutes, § 2892, by [190]*190reason of the fact that it has done business in this State without authority from the Insurance Commissioner, though it may have been incorporated in another State for the purpose, among other things, of furnishing insurance on the assessment plan. Every “ secret or fraternal society ” is excepted from the Operation of that statute by General Statutes, § 2903, and the defendant corporation appears to us to be one answering both these descriptions. “Secret work” by Article XI of the constitution is one of the functions of the “ Supreme Sitting,” and the branches are to meet with a “ Watchman ” at the outer and “ Vedette ” at the inner door.
But while restricted as we are to the consideration of questions of law, we cannot say that there was fraud in the original purposes of the defendant corporation, or in its dealings in this State, nor that there was any statutory impediment to its doing business here; the comity which permitted it to come here to organize its local branches and contract with their members, does not require us, in determining the consequences of such contracts, in view of its present position, to overlook the claims of citizens of Connecticut to the protection of its courts. The controversy before us is as to the possession of a trust fund in the hands of the court. The trusts upon which it is held will be the same, whoever may be the trustee. It is made up of several smaller funds, each of which was under the control and management of local trustees in this State, until the court required them to surrender it to its receiver. He now, as regards the claim of Mr. Failey, represents their rights, as well as those of the cestuis que trustent. These local trustees were properly constituted, and no act of maladministration is alleged against them. If their possession could not be disturbed by the Indiana receiver, neither can his be. Cooke v. Warner, 56 Conn. 234, 239. The contract between the certificate holder and the corporation was, by its express terms, made subject to the rules and laws of the Order. For its due performance, on the part of either party, it was necessary that the corporation should maintain its connection with the local branch to which the holder belonged, and continue in active [191]*191existence as a “ going concern.” Payments upon the certificate were to be made out of a “ Benefit Fund ” raised by assessments levied by the corporation on the several local branches, on account of those of their members who held certificates. The local branch was required to forward 80 per cent of the total amount called for “ immediately,” to the “ Supreme Treasury ” of the corporation, and to notify each certificate member of the call, whereupon he was obliged to pay the amount of his assessment to the branch within thirty days from the date of the original call. Twenty peícent of this was to be left with trustees appointed by the branch, and under bonds to its “ Chief Justice” and “ Vice Justice.” The bonds were all payable to these officers “ in trust for said branch,” should the trustee fail to account for the funds, at the end of his term, to his “ successor in office or to whoever may be legally appointed to receive the same.” Assessments were to be levied only when previous payments by the corporation out of the Benefit Fund had so reduced it that it required to be replenished. The amount to be paid on each matured certificate was also to be determined, within a certain maximum limit, by the managers of the corporation ; and as it was to be liquidated by means of an order on the “Supreme Cashier,” drawn by the “Supreme Accountant,” and signed by the “Supreme Justice,” it would seem that the corporation intended to reserve some discretionary power to regulate the sum by the state of the treasury.
It is obvious, as we have already said, that the corporation looked to the calls upon certificate holders in each year, for the means to pay the benefits accruing during the year, and to maintain the “Reserve Fund,” which, with the aid of lapses, it was hoped would avoid the necessity of any burdensome multiplication of assessments. In 1892, upon the insolvency of the corporation and the appointment of receivers in different States, the receipts from assessments stopped, the branches generally ceased to meet, and the Order became disorganized, and practically dissolved. The carcass remained, but the life was gone. The end was reached, so far as the rights of certificate holders are concerned, [192]*192ou July 29th, 1892, the day when the suit was instituted in Indiana for the appointment of a receiver. In view of the condition of the corporation at the time, and the probability of such an appointment, no certificate holder could have been expected to make any future payment to it for assessments.
The performance on its part of the contract of the Order with the certificate holders having by its fault become impossible, each of these had the right to elect whether to treat the contract as rescinded and demand a return of what he had paid on it, or to treat it as in force and claim the damages resulting to him from the corporation having put itself in a condition incompatible with the fulfillment of its engagements. 2 Saunders on Pleadings and Evidence, *674; Lyon v. Annable, 4 Conn., 350, 355. The Connecticut certificate holders, represented before us through the several trustees or branches who have appeared or pleaded in the cause, have unanimously elected the former course, and such election has been sufficiently and seasonably made known .by the answers and claims which have been filed. Under these circumstances, we think equity will best be done, as between the parties before us, by retaining the funds in controversy in the hands of the receiver appointed by the Superior Court, for distribution among the certificate holders of the Order, by whose contributions they were originally accumulated. In re Equitable Fund Life Association, 131 N. Y., 354; 30 Northeastern Rep., 114, 120; Lindquist v. Glines, 23 N. Y. Suppl., 272; Peltz v. Supreme Chamber of the Order of Financial Union, 19 Atlantic Rep., 668; Fogg v. Supreme Lodge of Order of Golden Lion, 156 Mass., 431; 33 Northeastern Rep., 692, 693.
For every dollar paid by them to the accountant of their local branches, eighty cents has been transmitted to the general treasury of the Order, to reimburse it for benefits paid to other certificate holders, and twenty cents has been reserved to meet similar claims to mature thereafter. It is to the reserve funds thus constituted that contributors, electing to rescind the contract evidenced by their benefit certificates, have a right to look primarily for repayment of their ad [193]*193vanees. These funds were manifestly left, by the laws of the Order, in the hands of the local branches for their better assurance. As against the demand of a foreign receiver and assignee, we think the members of each branch whose contributions created its Reserve Fund, have, under the conditions disclosed in the record of this cause, an equitable lien upon it, which the courts of their own State can best protect, especially where he claims it for distribution among the creditors of the corporation generally without any distinction in favor of certificate holders.
In quoting the constitution and laws of the defendant corporation, the edition of 1888 has been followed. We have not found it necessary to consider the effect of the changes of phraseology found in later editions, and which it is claimed were made without authority; since, while they might serve to strengthen the legal title of the corporation to the custody of the various Reserve Funds, they cannot vary the trusts upon which they were created and must be administered.
The Superior Court is advised to direct the distribution of the funds now in the hands of Edwin L. Scofield, receiver, after payment of necessary costs and charges, among the holders of benefit certificates, issued by the Supreme Sitting of the Order of the Iron Hall, to them as members of branches of the Order organized in Connecticut, and outstanding and obligatory upon said corporation on July 29th, 1892; payments to be made out of the fund received from the trustees of each local branch to the certificate holders of that branch, in proportion to the amounts paid by them respectively for assessments, laid upon them as holders of such certificates, deducting from such dividends, in each case, such amount, if any, as the certificate holder may have previously received from said Order by reason of his rights under his certificate; and to dismiss and disallow the claim of James F. Failey, receiver of said corporation by appointment of the Superior Court for Marion County in the State of Indiana, to said funds or any part thereof.
[194]*194In this opinion Andrews, C. J., Torrance and Fenn, Js., concurred.