Mason's Administrator v. Mason's Guardian
| Decision Date | 22 May 1931 |
| Citation | 239 Ky. 208 |
| Parties | Mason's Administrator v. Mason's Guardian et al. Mason's Administrator et al. v. Mason's Administrator. et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Army and Navy. — Balance under unconverted war risk life policy of soldier, predeceased by beneficiary, held payable to soldier's personal representative, to be administered like other personalty, but not subject to debts.
2. Army and Navy. — Upon death of insured under unconverted war risk life policy, unmarried, intestate, and without issue, held, balance of proceeds became vested in father, named beneficiary and mother being dead, and present value was payable by insured's administrator, upon father's death in 1928, intestate, to father's administrator for distribution to father's heirs, subject to administration costs (Ky. Stats., secs. 1393, 1403; War Risk Insurance Act. sec. 402, as added and amended; Act Cong. Dec. 24, 1919, sec. 15 [41 Stat. 376]; World War Veterans' Act 1924, sec. 303, as amended [38 USCA sec. 514]).
3. Executors and Administrators. — Court could not order distribution of intestate's funds until there was showing whether intestate left widow (Civil Code of Practice, secs. 639a-1 to 639a-12; Ky. Stats., secs. 2132, 1393, 1403).
4. Action. — In proceeding under Declaratory Judgment Act, court should require parties to manifest necessary facts before rendering judgment (Civil Code of Practice, secs. 639a-1 to 639a-12).
Appeals from Rockcastle Circuit Court.
C.E. RANKIN for appellant Sherman Mason's Administrator.
C.C. BAGBY for appellant John Mason's Administrator.
B.R. MOORE for appellant Flossie Mason's Guardian.
ROY E. GRAVES for appellee St. Bank & Trust Co.
R.L. BLACK and C.C. BAGBY for appellee John Mason's Administrator.
BACON R. MOORE for appellee Flossie Mason's Guardian.
C.E. RANKIN for appellant Sherman Mason's Administrator.
C.E. RANKIN for appellee Sherman Mason's Administrator.
ROY E. GRAVES for appellee Tusco and Nannie Mason's Guardian.
Reversing.
These two appeals are prosecuted on the same record, they are from the same judgment, relate to the same subject-matter, and we shall dispose of them in one opinion.
These appeals involve the distribution of $5,887, the balance of the proceeds of a policy of war risk insurance written by the United States government upon the life of Sherman Mason, a soldier in its service in the World War.
The soldier entered the service on the ______ day of ______, 1917. He died in the service on the 9th of October, 1918, unmarried, intestate, and without issue. His age at date of his death does not appear. The soldier's mother, Ellen McClure Mason had died on the ______ day of ______, 1905. The soldier had named his maternal grandmother, Sidney McClure, as his beneficiary, but she died intestate as to her personal property on March 19, 1918, and after her death the soldier failed to name another beneficiary. Sam McClure, the maternal grandfather of the soldier died intestate on ______ day of ______, 1919.
John Mason and Ellen McClure had married on the ______ day of ______, 1__, and several children were born to them, all of whom died in infancy and prior to the death of the soldier, and while not explicitly stated, the pleadings indicate all these died before their mother, Ellen McClure Mason.
John Mason, after the death of Ellen McClure Mason, married Elizabeth Cornish on the ______ day of ______ 19__, and to them several children were born. Of these children, Tusco Mason, who was born on the ______ day of ______ 19__, and Nannie Mason who was born on the ______ day of ______, 19__, still survive, but the other children of John and Elizabeth Cornish Mason all died, in infancy, unmarried and without issue.
After the death of Elizabeth Cornish Mason and on the ______ day of ______, 19__, John Mason married Leona Cornish, from whom he was thereafter divorced on the ______ day of May, 1928. John Mason thereafter died on the ______ day of ______, 1928, intestate, and left three children, him surviving, viz., the above-named Tusco Mason and Nannie Mason, the children of his second marriage, and Flossie Mason, the child of his third marriage. Whether or not John Mason contracted a fourth marriage and left a widow him surviving does not appear.
We have had before this court eight cases involving this war risk insurance, viz.: Sutton's Ex'r v. Barr's Adm'r, 219 Ky. 543, 293 S.W. 1075; Sizemore v. Sizemore's Guardian, 222 Ky. 713, 2 S.W. (2d) 395; Bailey et al. v. Norman's Adm'r, 228 Ky. 790, 15 S.W. (2d) 1005; Mefford et al. v. Mefford et al., 231 Ky. 127, 21 S.W. (2d) 151; Vest's Adm'r v. Vest et al., 234 Ky. 587, 28 S.W. (2d) 782; Hale's Adm'r v. Taylor, 235 Ky. 435, 31 S.W. (2d) 695; Canada v. Canada's Adm'x, 235 Ky. 747, 32 S.W. (2d) 330; Wilcox v. Schroader's Adm'r, 236 Ky. 112, 32 S.W. (2d) 727.
The applicable federal statutes, where the insurance has not been converted, and this had not, are set out herein. It is well for litigants to keep in mind the different statutes applicable in event the insurance has been coverted. We called attention to this in the Hale Case. Where this insurance has not been converted, the disposition of the present worth of the balance due upon the death of the designated beneficiary should not be a matter of any difficulty.
This sum is a part of the personal estate of the soldier, it is payable to and is receivable by his personal representative, and, with the exception of not being subject to his debts, is to be administered just like any other personal estate of the soldier, just as any cash he may have had on hand, his choses in action, a flock of sheep, a drove of hogs, a herd of cattle, or a stud of horses. Difficulties and confusion will be avoided by keeping in mind what we have just said about the similarity of this fund to the other items of personal property mentioned.
The devolution of such property of an intestate is fixed by section 1403, Ky. Stats. We have called attention to the failure of this record to show the age of Sherman Mason at the date of his death, but that makes no difference, for this statute provides that "the personal estate of an infant shall be distributed as if he had died after full age." This statute further provides that his personal estate (with certain exceptions not involved in this case) "shall pass and be distributed among the same persons, and in the same proportions, to whom and in which real estate is directed to descend."
The devolution of an intestate's real estate is fixed by section 1393, Ky. Stats., and thus we see that, as Sherman Mason had no children or descendants, when he died and as his mother was dead, the ownership of all his property, including this insurance vested in his father, not as his beneficiary, but as his heir at law. That was John Mason, and, when the last breath went out of Sherman Mason, John Mason became the owner of this insurance. It is true John Mason did not collect it all, but that was because the government would not pay it to him at once. He collected it as fast as he could. John Mason's position at the close of the 9th of October, 1918, except as to his son's debts, was the same as if his son had died the owner of 240 notes of $57.50 each signed by a solvent neighbor, due one each month. The administrator of Sherman Mason would have the right to collect these notes, but John Mason would have the right to obtain from him the money so collected. He could not make the neighbor pay these notes, until due, but they would be his just the same, and, if the neighbor offered to pay the present value of them, his receipt for that given to the neighbor would be good. That is what has happened here. The government has paid $5,887 to the soldier's administrator; if John Mason were alive, he would be entitled to this money, but, as he is dead, his administrator is entitled to it.
Whether the heirs of the soldier are to be determined as of the date of the death of the soldier or as of the date of the death of the beneficiary, as stated in Sutton's Ex'r v. Barr's Adm'r, supra, is not involved here, the beneficiary Sidney McClure having died before the soldier. Hence that question is not determinable on this appeal. The estate of John Mason would take this fund under either rule. The holding of other jurisdictions and a later one of this, is that the date of the soldier's death is controlling. Condon v. Mallan, 58 App. D.C. 371, 30 F. (2d) 995; Perrydore v. Hester, 215 Ala. 268, 110 So. 403; Chliders v. Pollock, 178 Ark. 1031, 13 S.W. (2d) 8; In re McQuade's Estate (Colo. Sup.) 296 P. 1023, Sutton's Ex'r v. Barr's Adm'r, cited and criticised; Magee v. Chambers et al. (Del.) 147 A. 306; Coleman v. Harrison et al., 168 Ga. 859, 149 S.E. 141; Sims et al. v. Arehart, 254 Ill. App. 219; In re Pivonka's Estate, 202 Iowa, 855, 211 N.W. 246, 55 A.L.R. 570; Mefford v. Mefford, 231 Ky. 127, 21 S.W. (2d) 151; Robbin's Petition, 126 Me. 555, 140 A. 366; Woodworth v. Tepper et al., 152 Md. 332, 136 A. 536, 55 A.L.R. 578; In re Dempster's Estate, 247 Mich. 459, 226 N.W. 243 — in this opinion Sutton's Ex'r v. Barr's Adm'r is cited but not followed; In re Hallbom's Estate, 179 Minn. 402, 229 N.W. 344 — in this opinion Sutton's Ex'r v. Barr's Adm'r, is cited, but not followed; this judgment was reversed by the United States Supreme Court April 13, 1931, Pagel v. MacLean, 51 S. Ct. 416, 75 L. Ed. ___, upon another feature; Williams et al. v. Eason's Adm'r, 148 Miss. 446, 114 So. 338, 55 A.L.R. 574; Gunn v. Yancey (Mo. App.) 33 S.W. (2d) 1029; In re Ryan's Estate, 220 App. Div. 835, 222 N.Y.S. 891; Branch Banking & Trust Co. v. Brinkley, 196 N.C. 40, 144 S.E. 530; Funk v. Luithle, 58 N.D. 416, 226 N.W. 595, in this opinion Sutton's Ex'r v. Barr's Adm'r is cited but not followed; Palmer v. Mitchell Adm'r, etc., 117 Ohio St. 87, 158 N.E. 187, 55 A.L.R. 566; In re Ogilvie's Estate, 291 Pa. 326, 139 A. 826, Sutton's Ex'r...
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