Hunter v. James

• Decision Date: 25 November 1932
• Docket Number: 2 Div. 20.
• Citation: 144 So. 576,225 Ala. 610
• Parties: HUNTER ET AL. v. JAMES.
• Court: Alabama Supreme Court

144 So. 576

225 Ala. 610

HUNTER ET AL. v. JAMES.

2 Div. 20.

Supreme Court of Alabama

November 25, 1932

Appeal from Probate Court, Sumter County; P. B. Jarman, Judge.

In the matter of the administration of the estate of Will Hunter deceased, wherein Dora Love and others filed claim to proceeds of estate as sole heirs, and wherein Tosong James claimed the right to the entire proceeds. From a decree for claimant last named, the other claimants appeal.

Reversed and remanded, with directions.

Dunn &amp Westbrook, of Meridian, Miss., and Haralson & Hall, of Hattiesburg, Miss., for appellants.

Gray &amp Dansby, of Butler, and John S. Tilley, of Montgomery, for appellee.

KNIGHT J.

Will Hunter, a World War soldier, died August 15, 1918, while still in the military service of the United States. His father, Robert Hunter, was the sole beneficiary in a war risk insurance policy issued by the government upon the life of Will Hunter in the sum of $10,000. The father died in 1927, but before his death the insurance money due under the policy had been considerably reduced by monthly payments to the father. Upon the death of the father, James R. McDaniel was duly appointed administrator of the estate of the deceased soldier, and the balance due under the policy, amounting to $6,130 was paid by the government to this administrator.

The deceased soldier left surviving him no children or their descendants, and no brothers or sisters, or their descendants, and, so far as the record discloses, he left no widow, and it appears that his father, the said Robert Hunter, was his sole surviving parent. It also appears that the appellants, Luck Hunter, Seaburn Hunter, Lucy Hunter McRay, and Ellis Hunter, uncles and aunts of the dead soldier, survived him, and they now insist that they, and they alone, are entitled to the insurance money now in the hands of the administrator for distribution under the acts of Congress, which limit the class of persons to whom insurance shall be payable.

Robert Hunter, the father, also left surviving him no widow, and no children, or descendants of any deceased child, but did leave surviving him a mother, Patsy Hunter, and the above-named uncles and aunts of the deceased soldier, and who were his brothers and sisters.

Patsy Hunter, the mother of Robert Hunter, and grandmother of the deceased soldier, died in the year 1930, leaving a last will and testament, in and by which she undertook to bequeath the above-mentioned insurance money to Tosong James, who was a cousin of the deceased soldier.

By a decree of the probate court, it was adjudged that: " The balance due on the insurance policy now in the hands of James R. McDaniel the administrator was the property of the estate of Will Hunter, deceased, after the death of Robert Hunter the beneficiary and it is the further order and judgment of the court that the said Patsy Hunter, the grandmother of said Will Hunter, the deceased intestate, was the sole and only heir after the death of Robert Hunter, to the estate of Will Hunter, the deceased intestate, which consisted of the balance of said insurance money." (Italics supplied.)

As we see it, this case is controlled by our pronouncement in the case of First National Bank of Chattanooga, Tenn. et al. v. Forester, 223 Ala. 218, 135 So. 167. In that case it is held that the unaccumulated installments of a policy of insurance, such as the one now under consideration, became assets of the estate of the insured, and should be distributed to those who took under our laws of descent and distribution as of the date of the insured's death. McGilvary et al. v. Reynolds et al., 224 Ala. 435, 140 So. 417; National Union Bank of Rock Hill v. McNeal, 148 S.C. 30, 145 S.E. 549; Wade v. Madding, 161 Tenn. 88, 28 S.W.2d 642; Pivonka v. Pivonka, 202 Iowa, 855, 211 N.W. 246, 55 A. L. R. 570; Coleman v. Harrison, 168 Ga. 859, 149 S.E. 141; Petition of Robbins, 126 Me. 555, 140 A. 366; In re Dempster's Estate, 247 Mich. 459, 226 N.W. 243; Matter of Ryan's Estate, 129 Misc. 248, 222 N.Y.S. 253; Matter of Schaeffer's Estate, 130 Misc. 436, 224 N.Y.S. 305; In re Ogilvie's Estate, 291 Pa. 326, 139 A. 826; Battaglia v. Battaglia (Tex. Civ. App.) 290 S.W. 296; Turner et al. v. Thomas (Tex. Civ. App.) 30 S.W.2d 558; In re Singer's Estate, 192 Wis. 524, 213 N.W. 479; In re Fink's Estate, 191 Wis. 349, 210 N.W. 834; In re Estate of LeRoy W. Cross, 147 Wash. 441, 266 P. 711.

At the time of the death of the insured, his father, Robert Hunter, was his sole heir, and under our statute of descent and distribution, the entire fund passed to, and vested in, the said Robert Hunter, and on the death of Robert Hunter one-half of the money then unpaid on the policy passed to, and vested in, Patsy Hunter, the mother of said Robert Hunter, while the other half became the property of the brothers and sisters of the said Robert Hunter, viz., Luck Hunter, Seaburn Hunter, Lucy Hunter McRay, and Ellis Hunter, and of the descendants, if any, of any predeceased brothers and sisters of the said Robert Hunter.

There appears in the agreed statement of facts the following statement: "In addition it was admitted that Will Hunter left surviving him a number of cousins who are children of deceased aunts and uncles who had predeceased the intestate, Will Hunter." If these cousins are children or descendants of predeceased brothers and sisters of the said Robert Hunter, they will share in the distribution of one-half of the fund along with the brothers and sisters of Robert Hunter in the right of their deceased parents.

The third subsection of section 7365 of the Code, which relates to descent and distribution, provides: "If there are no children or their descendants, and if there be but one surviving parent, then one-half to such surviving parent, and the other half to the brothers and sisters of the intestate, or their descendants, in equal parts."

And section 7366 provides: " Lineal Descendants Take Ancestor's Share.-Under the provisions of the preceding section, the lineal descendants, in equal degree, represent their ancestor; that is, the children of a deceased child, brother or sister of the intestate, are entitled to inherit, in equal parts, the same share that such deceased child, brother, or sister would have inherited, if living; the grandchildren of such deceased child, brother, or sister, taking in equal parts the same share that their parents would have inherited, if living."

In the well-reasoned case of Stallworth v. Stallworth, 29 Ala. 76, Justice Stone, in construing section 1573 of the Code of 1852, now section 7366 of the Code of 1923, in speaking of the terms "'representation,' and 'right of representation"' has this to say "The terms 'representation,' and 'right of...