Dobyns v. Prudential Ins. Co.

Full title: DOBYNS et al. v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al

Court: Supreme Court of Georgia

Date published: Jan 29, 1971

179 S.E.2d 915 (Ga. 1971)

179 S.E.2d 915

Opinion

26279.

ARGUED JANUARY 11, 1971.

DECIDED JANUARY 29, 1971.

Interpleader. Cook Superior Court. Before Judge Lott.

C. James Jessee, Jr., Christopher D. Olmstead, for appellants.

Coleman, Blackburn, Kitchens Bright, J. Converse Bright, M. F. Martin, III, Bennet, Gilbert, Gilbert Whittle, for appellees.

Heard Leverett, E. Freeman Leverett, amicus curiae.

NICHOLS, Justice.

The sole question for decision in this appeal is whether the parents, or the acknowledged illegitimate child, of a deceased United States serviceman, are entitled to the proceeds of a policy of government insurance where the serviceman has failed to designate a beneficiary.

38 USCA § 770 provides in part as to the priority of beneficiaries where the serviceman fails to designate a beneficiary: (1) To the widow or widower of the member; (2) If neither of the above, to the child or children of the member, in equal shares, and descendants of deceased children by representation; (3) If none of the above, to the parents of such member, in equal shares, or the survivor of them.

Motions for summary judgments were made on behalf of the child and of the parents based upon an agreed statement of facts. The trial court found for the child and against the parents and the present appeal was filed. The summary judgment for the child was a final judgment and the judgment denying the parents motion for summary judgment was certified for review. Held:

1. Under the full bench decision of this court in Cooper v. Melvin, 223 Ga. 239 ( 154 S.E.2d 373), construing the identical language of the Federal Employees' Group Life Insurance Act of 1954 (50 USCA § 8701) the language in 38 USCA § 770 providing for the payment of Servicemen's Group Life Insurance benefits in the event the serviceman fails to designate a beneficiary must be construed as not including an illegitimate, though acknowledged, child of a serviceman where the child has not been made legitimate by one of the methods provided by law. See Code §§ 74-101. 74-103.

2. There being no widow, and no child or children surviving the serviceman, the parents of such serviceman are entitled to the proceeds of the insurance policy, and the trial court erred in granting the motion for summary judgment on behalf of the illegitimate child and denying the motion for summary judgment made by the parents.

Judgment reversed. All the Justices concur.

ARGUED JANUARY 11, 1971 — DECIDED JANUARY 29, 1971.