United States v. Napoleon

• Decision Date: 26 February 1924
• Docket Number: 4142.
• Citation: 296 F. 811
• Parties: UNITED STATES v. NAPOLEON et al.
• Court: U.S. Court of Appeals — Fifth Circuit

296 F. 811

UNITED STATES v. NAPOLEON et al.

No. 4142.

United States Court of Appeals, Fifth Circuit.

February 26, 1924

Wm. M Gober, U.S. Atty., of Tampa, Fla., Maynard Ramsey, Asst. U.S Atty., of Jacksonville, Fla., and Edward H. Horton, Associate Counsel, U.S. Veterans' Bureau, of Washington, D.C., for the United States.

Martin H. Long, of Jacksonville, Fla., for defendants in error.

Before WALKER and BRYAN, Circuit Judges, and SIBLEY, District Judge.

SIBLEY District Judge.

Rena and Rosa Napoleon brought a suit at law in the District Court of their residence against the United States on a certificate of insurance for $10,000 issued on September 30, 1918, by the Bureau of War Risk Insurance to James Willie Williams, a soldier. The petition alleged that the insured died a resident of Florida October 12, 1918; that Rena was the aunt of the insured, had cared for him from childhood, and stood in loco parentis; that Rosa is Rena's daughter, and that insured left a will probated in Florida May 31, 1921, which named petitioners as sole beneficiaries. Service was made and trial had under the unrepealed sections 4, 5, 6, and 7 of the Tucker Act of March 3, 1887 (Comp. St. Secs. 1574-1577) resulting in judgment for plaintiffs. A writ of error has been taken to this court under authority of United States v. Harsha, 172 U.S. 567, 19 Sup.Ct. 294, 43 L.Ed. 556. Errors are assigned in the overruling of demurrers, and of a motion to stay the case pending the trial of a proceeding in the probate court to revoke the probate of the insured's will, in the refusal to make parties of certain persons alleged to be the father and brothers and sisters of the insured, and in the making of a judgment in petitioners' favor for the full sum of $10,000, payable in monthly installments.

A demurrer questions the jurisdiction of the District Court. By section 13 of the War Risk Insurance Act as amended May 20, 1918, it is provided:

'In the event of disagreement as to a claim under the contract of insurance between the bureau and any beneficiary or beneficiaries thereunder an action on the claim may be brought against the United States in the District Court of the United States in and for the District in which such beneficiaries or any one of them resides. ' Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 514kk.

This provision, as well as Judicial Code, Sec. 24(20) (Comp. St. Sec. 991), read in connection with section 5 of the Tucker Act, abundantly upholds the jurisdiction of the court.

A general demurrer further contends that sufficient facts are not pleaded to show liability to the petitioners as beneficiaries. Under section 402 of the War Risk Insurance Act as amended June 25, 1918--

'The insurance shall be payable only to a spouse, child, grandchild, parent, brother, or sister, and also during total and permanent disability to the injured person, or to any or all of them. * * * If no beneficiary within the permitted class be designated by the insured, either in his lifetime of by his last will and testament, or if the designated beneficiary does not survive the insured, the insurance shall be payable to such person or persons within the permitted class of beneficiaries as would under the laws of the state of the residence of the insured be entitled to his personal property in case of intestacy. ' Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 514uuu.

The certificate sued on discloses no designated beneficiary. It would, therefore, without more be payable to the persons who would in Florida inherit his personal property, and petitioners do not aver that they are such persons. But they do allege that they are the sole beneficiaries of a duly probated will. We think this alleges a designation of them under the provisions of the act, although the will is not exhibited, and it is not alleged that the insurance is specially mentioned in it. When a legacy is made by a will sufficient in its terms to carry the insurance money if it had belonged to the testator's estate, it is sufficient to show the testator's solemn preference that the legatee be its recipient rather than the next of kin, and this preference so expressed is sufficient to displace the next of kin, who was designated by the statute only because no one else had been designated. We rule nothing as to what would be requisite in a designation other than by last will. The legatee, however, must be of the permitted class, and at the date of this certificate and of its maturity by death the petitioners were not eligible for designation. Before suit, however, by the Act of December 24, 1919 (Comp. St. Ann. Supp. 1923, Sec. 514 mmm), the terms 'father and mother' were made to include persons who have stood in loco parentis for a period of one year at any time before the enlistment of the insured, and the children of such were included in the terms 'brother and sister.' Aunts, also, were placed in the class of permitted beneficiaries. This act, with a proviso noted below, was to be 'deemed to be in effect as of October 6, 1917. ' It is therefore to be treated as forming part of this certificate, and under it both Rena and Rosa were capable of designation. As against a general demurrer, the petition was good.

The motion made by the answer, and by an amendment of it, that certain persons claiming to be the father and brothers and sisters of the insured be made parties, was properly denied. Relief by way of interpleader may be had in a suit at law under Judicial Code, 274 (b) (Comp. St. Sec. 1251b), allowing equitable defenses in law cases. Liberty Oil Co. v. Condon Bank, 260 U.S. 235, 43 Sup.Ct. 118, 67 L.Ed. 232. The practical obstacles are less under the Tucker Act than in ordinary suits. But the pleadings here involved do not make the necessary allegations, nor pray for that relief. Yet without an award of interpleader, or the making of new parties, any state of facts could be asserted defensively that went to show that the liability for the insurance was to some one else rather than to the petitioners. For that purpose, the allegations as to the survival of the father of the insured should have been allowed.

Before entering on the trial, the court was moved to stay it pending the determination of a statutory proceeding in the probate court to revoke the probate of the alleged will of the insured, which was shown to have been instituted by...