In re White's Estate.Hilliard v. White.
| Decision Date | 20 March 1939 |
| Docket Number | No. 4432.,4432. |
| Parties | In re WHITE'S ESTATE.HILLIARDv.WHITE. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Otero County; Numa C. Frenger, Judge.
Proceeding in the matter of the estate of Morris Downey White, deceased, wherein P. C. Hilliard, administrator of the estate of Morris Downey White, and heirs of Byron White Fitzhugh, appeal from a judgment holding a certain insurance policy to be the separate property of deceased, and William C. White, heir of Morris Downey White, cross-appeals.
Affirmed.
As applied to insurance to “reinstate” means restoring to one all the benefits accruing under the policy contract.
W. A. Gillenwater, of Hot Springs, for appellant Hilliard.
J. Benson Newell, of Las Cruces, for appellants Fitzhugh Heirs.J. L. Lawson, of Alamogordo, for appellee.
When this case was first before this court (see In re White's Estate, 41 N.M. 631, 73 P.2d 316) we reversed and remanded directing the trial court, among other things, to determine whether the life insurance policy upon the life of Morris Downey White was his separate property or was property of the community of the said Morris Downey White, deceased, and his wife, Mildred Byram White, who is now also deceased. Subsequent to the death of White his widow married one Fitzhugh and will hereafter be referred to as Mrs. Fitzhugh.
Certain facts are set out in the original opinion which need not be here repeated.
Upon the retrial, the lower court decreed to the Fitzhugh heirs the $500 which was held to belong to them by virtue of the exemption statute which allowed such an amount to Mrs. Fitzhugh as the widow of the deceased White, but held the insurance policy to be the separate property of the deceased husband from which judgment the Fitzhugh heirs appeal.
The question now presented is as to the appropriateness of the trial court's findings and conclusions that the life insurance policy and its proceeds are the separate property of the estate of the deceased, Morris Downey White, and not the property of the community.
It appears from the court's findings and the unchallenged testimony that the deceased White, while he was in the service of the United States Navy, and in the month of February, 1918, took out government insurance of the usual type provided exclusively for those in such military service, in the sum of $10,000. After carrying the same for about four months, and in June of that year, White had the insurance cancelled on July 23, 1918, and while yet in the service, he married Mildred Byram. White was discharged from the navy on August 30, 1918. In the month of November, 1919, he applied for reinstatement of his insurance. Pursuant to the rules and regulations of the government and without additional examination or other requirement excepting the payment of the first installment upon the premium, the insurance was reinstated as originally carried. White died intestate on February 13, 1920, leaving his said widow and a son by a former marriage, William C. White.
[1] This court upon the original appeal strongly indicated, though it did not directly decide, the rule to be that “A life insurance policy payable to the estate of a person is his separate property if the policy was obtained before his marriage, and community property if the policy was obtained subsequent to marriage,” citing McKay on Community Property (2d. ed.) Secs. 479-480, and other authority. We now hold directly that this is the true rule, and, with approval, make further reference to language quoted in the former appeal, viz., that “The status of proceeds or avails of such insurance, whether community property or the separate property of the insured, is not governed by the marital status of the insured at the time of his death.”
Were the insurance proceeds in question the proceeds from the original policy of February, 1918, which was taken out before the marriage, we should then have little difficulty. It would be the separate property of the deceased, and upon his death would go, one-fourth to his widow, or, since she also is now deceased, to her heirs, and the balance would go to the other heir of the insured, the son by a former marriage.
In the case before us we have an insurance policy issued and allowed to lapse before marriage and then after marriage, “reinstated” as hereinbefore set out. The question thus presented is whether a reinstatement of a...
To continue reading
Request your trial
-
LeClert v. LeClert
...at the time the plaintiff commenced his service in the United States Navy, as was the policy of life insurance in In re White's Estate, 43 N.M. 202, 89 P.2d 36. The courts today regard retirement plans and retirement pay as a mode of employee compensation. It is an earned property right whi......
-
In re Miller's Estate.Miller v. Greathouse
...we said in the case of In re White's Estate, 41 N.M. 631, 73 P. 2d 316, and later in the case of In re White's Estate, Hilliard v. White, 43 N.M. 202, 89 P.2d 36, 37, decided March 20, 1939. In the latter case we said: “This court upon the original appeal strongly indicated, though it did n......