Mahorney's Estate, In re

• Decision Date: 22 March 1963
• Citation: 29 Cal.Rptr. 457,214 Cal.App.2d 334
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Robert MAHORNEY, Deceased. Clythian MAHORNEY, Administratrix of the Estate of Robert Mahorney, Deceased, Petitioner and Respondent, v. Carrie Louise THRASHER, Contestant and Appellant. Civ. 20608.

Page 457

29 Cal.Rptr. 457

214 Cal.App.2d 334

In the Matter of the ESTATE of Robert MAHORNEY, Deceased.

Clythian MAHORNEY, Administratrix of the Estate of Robert Mahorney, Deceased, Petitioner and Respondent, v. Carrie Louise THRASHER, Contestant and Appellant.

Civ. 20608.

District Court of Appeal, First District, Division 3, California.

March 22, 1963.

Donald P. McCullum, Oakland, for appellant.

Martin, Martin & Hillman, Berkeley, for respondent.

SALSMAN, Justice.

In 1942, the decedent Robert Mahorney, married Iomae Mahorney. They had two children. Iomae died in September, 1956. On December 23, 1956 decedent married respondent, Clythian Mahorney. They had one child. Robert Mahorney died in 1959, and respondent was appointed administratrix of his estate. Decedent had been employed at the Alameda Naval Air Station, and in 1954 he was included under a federal employees' group life insurance policy. The decedent was covered by this policy while married to Iomae, and also after her death, while married to respondent Clythian. The decedent never designated any beneficiary to receive the proceeds of the policy, and upon his death the respondent received the proceeds in her individual capacity, and did not include them in her inventory of assets of the estate of the decedent.

The appellant, as guardian of decedent's children by his first wife, Iomae, filed exceptions to the account of respondent, seeking to have a portion of the proceeds of the insurance policy included in the decedent's estate and distributed in part to the issue of his first marriage, pursuant to California's statutes relating to succession. After a hearing the probate court found the insurance proceeds were the property of the respondent individually, and not a part of the estate of the decedent. This appeal questions the propriety of that order.

5 U.S.C.A., chapter 24, section 2091 et seq. provide for federal employees' group life insurance. Section 2093 establishes an order for payment of death claims, and reads in part: 'Any amount of group life insurance * * * in force on any employee at the date of his death shall be paid, upon the establishment of a valid claim therefor, to the person or persons surviving at the date of his death, in the following order of precedence: First, to the beneficiary or beneficiaries as the employee may have designated by a writing received in the employing office prior to death; Second, if there be no such beneficiary, to the widow or widower of such employee; * * *.'

Appellant's principal contention is that a portion of the proceeds of decedent's insurance policy was his separate property and hence must be paid into his estate and distributed pursuant to those sections of the Probate Code relating to succession. To support this view, appellant must necessarily contend that 5 U.S.C.A. § 2093, supra, relating to payment of the proceeds of insurance policies of federal employees' group life insurance is not controlling, and that California law must be applied. This is not correct. Here we are dealing with the construction of a federal statute, and federal law must be applied. In Sears v. Austin, 9 Cir., 292 F.2d...