Hurley v. White

BOND, Justice. This suit was instituted by Nora V. Hirsch, joined! by her husband, Jack Hirsch, [394] ■ and O. W. McFadin, against Olga Mae Kel-by Hurley, temporary administratrix of the estate of David P. Kelby, deceased, Mrs. Joseph Kuhn, Nell Ann Kelby, and the unknown heirs of Nell Ann Kelby, deceased, in the nature of an application for writ of cer-tiorari to vacate an order of the county court and distribute the funds in the hands of the administratrix, as belonging to the David F. Kelby estate. The trial court authorized the appointment of an administrator of Nell Ann Kel-by’s estate; W. D. White was duly appointed and filed his petition in intervention, and he, in detail, asserted claim to the fund, thus joining issue with appellant and the other parties to the suit. The case was tried to a jury and, at the conclusion of the testimony, the trial court directed a verdict for intervener, judgment was rendered vacating the order of the county court, directing the administratrix to pay to the estate of Nell Ann Kelby $9,428.50, with interest, and, on payment of said sum, appellant be discharged as administratrix. The defendant Olga Mae Kelby Hurley appealed. While, strictly speaking, this case is not a companion case to the one this day decided by this court (Olga Mae Kelby Hurley, Adm’x v. Nora V. Hirsch et al., 66 S.W.(2d) 387), yet it involves the devolution of the $0,428.50 allocated by this court to the estate of. David F. Kelby, as a conduit for its proper distribution under and by virtue of the War Risk Insurance Act, enacted by the Congress of the United States (World War Veterans’ Act 1924, § 303, as amended by Act March 4, 1925, § 14 [38 USOA § 514]). To that extent, the two cases are related and governed by the rules of law there announced, and it becomes unnecessary to discuss here the same propositions, which are involved and decided adversely to appellant in the cited case. We have carefully considered all of the assignments and, in view of the admitted and uncontroverted facts of this record, such assignments become immaterial, and' they are expressly overruled. Our holding in the cited case, on propositions urged in this appeal, concludes a discussion of appellant’s assignments. The evidence is undisputed that David F. Kelby was a soldier in the United States Army during the World War, and, while he was so serving,.he purchased a war risk term insurance policy in the principal sum of $10,-000; the policy being payable in 240 monthly installments of -$57.50 each. The policy provides that, if the soldier, David F. Kel-by, became totally and permanently disabled while the policy was in force, the monthly installments would mature in his favor, payable to him as long as he lived, and after his death the policy, if not in full paid out, would be payable in monthly installments to Frank Kelby, his father, the designated beneficiary, until the remaining installments were paid, if said beneficiary lived long enough to receive all such installments, and the commuted value of any installments remaining unpaid at the death of the designated beneficiary would be payable to the estate of the insured. On June 1, 1924, David F. Kelby died intestate, leaving surviving as his sole relatives Nell Ann Kelby (his wife), Frank Kel-by (his father), and Nora V. Hirsch, who claims to be a niece, and at the time of his death was a legal resident of the state of Texas. Frank Kelby, beneficiary, survived the insured and died prior to receiving all of the 240 monthly installments. Administration was granted upon David F. Keiby’s estate by the probate court of Dallas county, and appellant, Olga Mae Kelby Hurley,was appointed temporary administratrix, and as such collected on said insurance policy the commuted value of the installments remaining unpaid after the death of Frank Kelby, amounting to the sum of $9,428.50. The question as to when the heirship must be determined, in cases wherei war risk insurance is payable after the death' of the designated beneficiary, has been the subject of judicial determination in many states, including our own, and it may be stated that it is now the settled law of this state; such heirship is determined as of the date of the soldier’s death. Turner et al. v. Thomas (Tex. Civ. App.) 30 S.W.(2d) 558, and authorities cited. The case falls squarely within the provisions of said act of Congress, and the devolution of the fund should be traced under the laws of descent and distribution of the state of Texas, as of the date of the death of the soldier. Article 2462, R. S. 1911 (article 2571, R. S. 1925), provides that: “Where any person having title to any estate of inheritance, real, personal or mixed, shall die intestate as to such estate, and shall leave a surviving husband or wife, the estate of such intestate shall descend and pass as follows: * * ⅜ 2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate. ⅜ * * ” So, in this case, David F. Kelby having died intestate, leaving no child or children or their descendants, his surviving wife inherited all of his estate, and the administrator of her estate is entitled to the posses-sory right to the funds in controversy, less the legitimate expenses of the pending administration upon the estate of David F. Kel-by. We conclude that the order of the county court, ordering the funds in controversy paid to the administratrix of Frank Kelby, deceased, is improper, and should be vacated, and the county court directed to order the [395] administratrix of David F. Kelby’s estate to pay to the intervener, W. D. White, administrator of the estate of Nell Ann- Kel-by, the sum of $9,428.50, less the legitimate costs and expenses of administration, and the judgment of the district court, vacating the order of the county court, is affirmed, and, where the judgment directs that the entire fund, with interest, be paid to W. D. White, administrator, and the administration on the estate of David F. Kelby be closed, and the administratrix be discharged, is reformed; Olga Mae Kelby Hurley, ad-ministratrix, is ordered to pay to W. D. White, administrator, the sum of $9,428.50, less the legitimate costs and expenses of administration, and the administration be continued until further orders of the county court; the district court is directed to certify the decision of this court to the county court for observance. Judgment of the district court is reformed in accordance with our holdings herein, and as reformed the case is affirmed. All costs taxed against the intervener, W. D. White. Affirmed.