Branch Banking & Trust Co. v. Brinkley

BeogdeN, J. The question is this: Under the War Insurance Act, Title 38, chapter 10, section 514, U. S. Code Annotated, are the dis-tributees of a deceased soldier to be ascertained at the time of his death or at the time of the death of the beneficiary named in the certificate of insurance ? The act referred to provides in section 514 thereof, among other provisions, as follows: “If the designated beneficiary does not survive the insured or survives the insured and dies prior to receiving all of the two hundred and forty installments or all such as are payable and applicable, there shall be paid to the estate of the insured the present value of the monthly installments thereafter payable, said value to be computed as of date of last payment made under any existing award.” The statute mentioned has been amended from time to time, but these amendments are not pertinent to this appeal. Jack W. Montague received war risk insurance in the sum of $10,000, payable to his brother, John M. Montague, and his sister, Walina Pet-way. The insured was killed in action on 26 September, 1918, while serving as a soldier with the American Army-in France. His brother, John M. Montague, one of the beneficiaries named in said certificate of insurance, died of wounds received in action on 6 October, 1918. Therefore the insured, Jack W. Montague, was survived by his brother, John M. Montague, and his sister, Walina Petway. It does not appear *43 that either the mother or father of the insured was alive at the time of the death of the insured. John M. Montague, who died of wounds on 6 October, 1918, left no children, or widow, or father, or mother, and his next of kin was his sister, Walina Petway. After the death of Jack W. Montague the Bureau of War Risk Insurance paid to Walina Pet-way the monthly installments according to said certificate of insurance until the death of said Walina Petway in 1924. Walina Petway left her surviving as her sole next of kin a daughter, Ethel Lee Petway, who was born after the death of the insured. After the death of Walina Petway, to wit, on 4 September, 1925, the defendant, R. L. Brinkley, was duly appointed and qualified as administrator of Jack W. Montague, the insured. The Bureau of War Risk Insurance has paid to said administrator the balance due under said certificate of insurance, amounting to $7,889.00. The uncles and aunts of said insured claim the fund, and the plaintiff, the guardian of Ethel Lee Petway, claims the fund. The uncles and aunts of the insured assert that, upon the death of the beneficiary, Walina Petway, the fund became payable to the “estate of the insured.” The guardian of Ethel Lee Petway asserts that the “estate of the insured,” with reference to those entitled as distributees thereof, should be ascertained as of the death of the insured and not as of the death of the beneficiary. The identical question presented has been decided by the courts of last resort in Iowa, Maryland, Texas, and Wisconsin, and also by the Supreme Court of the United States. In re Pivonka's Estate, 211 N. W., 246; In re Jacobs’ Estate, 136 Atlantic, 536; Battaglia v. Battaglia, 290 S. W., 296; In re Singer’s Estate, 213 N. W., 479; White v. V. S., 70 L. Ed., 530. . The principle of law governing the question is thus stated In re Jacobs’ Estate, supra. “The distributee of the estate of George Mitchell Jacobs, under our statutes, was his mother, as he was not survived by his father, and had no descendants. The vested right of the mother to the estate of her intestate son was not affected by the fact'that she died before the estate was administered, or that she was the recipient, during her life, of payments under the contract of insurance from which the only asset of the estate was derived. If she had not been named as beneficiary to that extent in the policy, it would hardly be contended that her death, subsequent to that of her son, extinguished the interest which she had acquired in his estate as sole distributee under our statute. . •. . In our opinion, the fund for distribution must follow the course which the statute defines, and be paid to the personal representative of the decedent’s mother, who became entitled to his estate under the explicit provisions of the law.” *44 Again, in the Battaglia case, supra, the Court said: “Upon tbe death of Chas. W. Battaglia, his father, under the retroactive feature of the law of 4 March, 1926, thus occupied as to the insurance the dual capacity of beneficiary and sole heir at law of the insured. His right as beneficiary did not destroy or in any wise impair any right which he had as heir at law. Whatever right he had as an heir passed upon his death to his sole heir, the appellant herein.” The Singer case, supra, holds: “The whole amount of the policy not having been paid to the beneficiary, the estate of the deceased was augmented by the present worth of future payments. When this sum was paid to the administrator under the law, it must be distributed to his heirs as of the date of his death.” Also in Pivonka’s Estate, supra, the-Court said: “The estate of the insured came into being as the estate of a deceased person instantly upon the death of such deceased person. The heirs of a decedent are, under the laws of this State, to be determined by ascertaining upon whom the law casts the estate immediately upon the death of an ancestor. Whether or not the estate of the soldier was in process of administration prior to the death of the beneficiary is quite immaterial.” Applying these principles of law to the facts disclosed by the record, it is clear that, under our statute of distribution, the next of kin of the insured at the time of his death in 1918, were his brother John and his sister Walina, and that the personal property of said decedent vested in said next of kin immediately upon his death. John died of wounds a few days after his brother Jack, leaving as his sole next of kin his sister, Walina Petway. Walina Petway therefore took the estate not as beneficiary, but as distributee under the laws of North Carolina then in force. It necessarily follows that the child of Walina Petway, the plaintiff in this action, is entitled to the whole fund to the exclusion of uncles and aunts. Affirmed.