Vita v. Morris

• Decision Date: 29 September 1934
• Docket Number: No. 11475.,11475.
• Parties: VITA et al. v. MORRIS.
• Court: Texas Court of Appeals

75 S.W.2d 157

VITA et al. v. MORRIS.

No. 11475.

Court of Civil Appeals of Texas. Dallas.

September 29, 1934.

Appeal from County Court at Law, No. 1, Dallas County; Paine L. Bush, Judge.

Garnishment proceeding by O. J. Morris against the First National Bank in Dallas wherein Charlie Vita intervened. From a judgment, intervener appeals.

Affirmed.

J. D. Kugle, Jr., of Dallas, for appellants.

Leffingwell & Dixon, of Dallas, for appellee.

LOONEY, Justice.

This suit originated in the justice court, was appealed to the county court, and from the judgment of the latter, this appeal was taken.

Monroe Vita, a veteran of the World War, carried $10,000 war risk insurance, his father, Joseph Vita, beneficiary, survived the insured, but had not received all the installments, payable and applicable, prior to his death; thereupon, the government paid to the administrator of the estate of the deceased soldier, in a lump sum, the then value of the unpaid monthly installments. The estate was, by the administrator, distributed, and paid to the heirs at law of the insured, under our statutes of descent and distribution. Charlie Vita, a brother and heir of the insured, receiving his distributive share, deposited same to his credit in the First National Bank in Dallas, where it was garnished by O. J. Morris, a creditor.

After the garnishment, the debtor replevied the fund under the statute; the garnishee answered, setting up the pertinent facts relating to its interest in the litigation; Charlie Vita intervened and contended that the fund was not subject to the writ of garnishment, in that, being proceeds of war risk insurance, was, under a provision of the federal code, exempt from the claims of creditors. This contention was denied below and the fund held subject to the writ of garnishment.

Section 514, tit. 38 USCA, provides that in a situation, such as is presented by these facts, the present value of unpaid installments shall be paid to the estate of the insured. That is precisely what was done in the instant case, and thus, in our opinion, the fund passed from the control of the federal statutes, and became and was subject to distribution under our statutes of descent and distribution.

The exemption provision of the federal statute, relied upon by appellants, is section 454, tit. 38 USCA, as follows: "The compensation, insurance, and maintenance and support allowance payable under Parts II, III, and IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under Parts II, III, or IV; and shall be exempt from all taxation. Such compensation, insurance, and maintenance and support allowance shall be subject to any claims which the United States may have, under Parts II, III, IV, and V, against the person on whose account the compensation, insurance, or maintenance and support allowance is payable. The provisions of this section shall not be construed to prohibit the assignment by any person to whom converted insurance shall be payable under Part III of this chapter of his interest in such insurance to any other member of...