Porter v. Watson
| Decision Date | 16 September 1935 |
| Docket Number | 24549,24577. |
| Parties | PORTER v. WATSON. WATSON v. PORTER. |
| Court | Georgia Court of Appeals |
Rehearing Denied Oct. 3, 1935.
Syllabus by the Court.
1. "Where the beneficiary of a war-risk insurance certificate survives the insured but dies before receiving all of the installments which are payable and applicable, the estate of the insured is wholly substituted as the payee, and all of such payments become assets of the estate of the insured upon the instant of his death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the State of his residence, such heirs to be determined as of the date of his death, and not as of the date of the death of the beneficiary." It was therefore error for the court to charge the jury that the conduct of the wife some years after the death of her husband, the insured, might defeat her right to share as an heir of the estate of her husband. A fund paid to the administrator of the estate of a deceased soldier, such fund being the remainder due on a war risk certificate after the named beneficiary had died, becomes, so far as the distribution of the same among heirs of such deceased soldier is concerned, a part of the corpus of the estate, and is subject to be distributed under the laws of this state. In such a case the payment by the United States government to the administrator of the estate of the deceased soldier releases the fund for distribution under state laws.
2. An administrator who has been cited to a settlement by a single distributee of an estate, and who answers that such person is not the heir entitled to the fund, and no other person has been made a party in such proceeding, is, upon an adverse decision to his answer, a proper party to move for and prosecute an appeal; and a motion for new trial will not be dismissed because of lack of a proper movant, nor will a bill of exceptions be dismissed because such administrator is named as plaintiff in error.
3. The court of ordinary has jurisdiction to hear and determine issues of facts and to apply legal principles in a citation for settlement brought against an administrator. No construction of a will being involved, the court does not lose jurisdiction because questions of law as well as of fact are involved.
4. Because of the error stated in the first headnote, the court erred in overruling the motion for new trial.
Error from Superior Court, Oconee County; Blanton Fortson, Judge.
Petition by Zilphan Allen Watson against J. Frank Porter administrator of the estate of Tom Allen, deceased. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error, plaintiff filing a cross-bill of exceptions.
Reversed on the main bill of exceptions, and cross-bill dismissed.
Robt. M. Nicholson, of Watkinsville, and John B. Gamble, of Athens for plaintiff in error.
Tolnas & Middlebrooks, of Athens, for defendant in error.
1. Zilphan Allen Watson filed her petition in the court of ordinary of Oconee county against J. Frank Porter administrator of the estate of Tom Allen, deceased, alleging that she was the next of kin and mother of Tom Allen, that said administrator was in possession of certain money belonging to said estate, and that she was entitled to the same. A settlement on accounting was prayed for. Service was acknowledged by the attorney for the administrator, and the twelve-month exemption was waived. The defendant answered that he was in the possession of a certain sum of money, the proceeds of a certain war risk insurance policy on the life of Tom Allen, and that, after payments of debts and costs such sum would be due to be paid to Mamie Allen, the lawful wife of Tom Allen, deceased, she being the sole heir at law of said estate. A trial of this matter before the ordinary resulted in a judgment against the plaintiff, directing that Mamie Allen be paid the proceeds in the hands of the administrator, less the costs, and that counsel fees be fixed at a later date.
An appeal from this judgment was taken to the superior court. In that court the plaintiff filed an amendment alleging as follows:
Tom Allen was inducted into the military service, was sent overseas, and died in France on October 1, 1918. Before his death there were issued to him two policies of war risk insurance aggregating $10,000, in which Ed Creamer was named as beneficiary. (Tom Allen was the illegitimate child of Z. A. Allen, and Ed Creamer was the putative father.) Monthly payments were made thereunder to Ed Creamer until the time of his death on March 31, 1932. The value of the policies at that time and the amount collected by the administrator of the estate was $4,025. At the time of the death of Tom Allen, his mother and his widow were the only persons within the permitted class of beneficiaries. Mamie Allen, the widow of Tom Allen, from October 1, 1922, until April 25, 1923, lived in a state of open and notorious illicit cohabitation with a man named Eddie Roland, in Tennessee. By reason of said conduct, Mamie Allen forfeited her right to any and all insurance hereinbefore described, if any she had, after October 1, 1922. Mamie Allen married Eddie Roland on April 25, 1923.
The insurance policies provided that, in the event of the death of Ed Creamer prior to the payment of the last of the 240 installments due thereon, "the remaining payments of insurance will be paid to those persons within the permitted class of spouse, child, and grandchild, parent, brother, sister of the deceased soldier, as would, under the laws of the State of his residence, be entitled to his personal property in case of intestacy; provided, however, that if the insured designate an alternate beneficiary, the remaining payments will be paid to such person or persons."
The mother became vested with the right to receive the remaining unpaid installments after the death of Ed Creamer, she being the only person within the permitted class as would, under the law of Georgia, be entitled to the personal property of the deceased in case of intestacy. Mamie Roland having forfeited her right, if any she had, to such fund by reason of her conduct above set out. Certain sections of the Code of state of Tennessee were pleaded in reference to requirements for marriage in that state, the plea setting up that such requirements as to a formal marriage were mandatory and precluded recognition of a common-law marriage. This issue was submitted to a jury, and resulted in a verdict for Z. A. Watson. The administrator's motion for new trial was overruled, and he excepted.
The evidence disclosed that Tom Allen was the illegitimate son of Zilpha Allen.
She afterwards married Mose Watson. Tom Allen married Mamie Allen in 1909. They had no children. Ed Creamer was the father of Tom Allen. Mamie Allen drew compensation from the government at the rate of $25 per month until April 1, 1923. Mamie Watson and Eddie Roland lived together as man and wife in Chattanooga, Tenn., from October 1, 1922, to April 25, 1923, at which time they were formally married.
The court charged the jury as follows:
The complaint is that this charge was an incorrect statement of the law as applied to the facts of this case; that the right of the widow to share in the fund collected by the administrator is governed by the law of Georgia, and, she being the widow, and there being no children, she was the sole person entitled to the fund; that in a suit for accounting and distribution the rights of the heirs are to be determined as of the time of the death of the deceased, and subsequent conduct has no force or effect with reference to the distribution, but the rights are vested as of that date; that the fund belonging to the deceased soldier, derived from the proceeds of the war risk insurance policy, having been paid over by the government to the administrator of the deceased soldier, it became his general estate and was to be administered in accordance with the laws of Georgia, and that the conduct of the wife after the death of her husband did not change the legal status of her inheritable rights.
The court gave other charges which were a reiteration of this same principle, and gave in charge the law of the state of Tennessee which does not recognize common-law marriages as in Georgia, for the purpose of negativing any contention of Mamie Allen that her living with Eddie Roland in Tennessee and holding herself out as his wife made her his common-law wife.
The court's charge on this point was evidently predicated upon the Act of Congress of September 2, 1914, 38 Stat. 711 as amended by the Act of Congress Oct. 6, 1917, § 2, 40 Stat. 398, and embodied in section 22 (5),...
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