Opinion
6 Div. 865.
May 14, 1931. Rehearing Denied June 18, 1931.
Appeal from Probate Court, Jefferson County; J. P. Stiles, Judge.
Charles H. Neighbors, of Chattanooga, Tenn., and Ben F. Ray and L. B. Bewley, both of Birmingham, for appellants.
Under the War Risk Insurance Act and amendments thereto, the commuted unpaid installments of a policy of insurance granted thereunder should be distributed as of the date of the death of the designated beneficiary to those persons named as qualified beneficiaries of such insurance by said acts, who are the heir at law of the insured, determined as of the date of the death of said designated beneficiary. Act Cong. June 7, 1924, §§ 300, 303, 503, as amended, and § 602 ( 38 USCA §§ 511, 514, 554, 571); Perrydore v. Hester, 215 Ala. 268, 110 So. 403; Bingham v. Sumner, 206 Ala. 266, 89 So. 479; Cassarello v. U.S. (D.C.) 271 Fed. 486; Sutton v. Barr, 219 Ky. 543, 293 S.W. 1075; Sizemore v. Sizemore, 222 Ky. 713, 2 S.W.(2d) 395; In re Hallbom's Est., 179 Minn. 402, 229 N.W. 344. Under the War Risk Insurance Act, those persons named as the permitted class of beneficiaries are the exclusive beneficiaries. Nat'l Union Bank v. McNeal, 148 S.C. 30, 145 S.E. 549 (dissent). The persons designated as the permitted class of beneficiaries do not take the proceeds of insurance by virtue of the operation of the laws of descent and distribution of the state in which the veteran died, but by virtue of the contract between the government and the veteran and the provisions of the War Risk Insurance Act. In re Harris' Est., 179 Minn. 450, 229 N.W. 781; Suc. of Geier, 155 La. 167, 99 So. 26, 32 A.L.R. 353; In re Sabin, 131 Misc. Rep. 451, 227 N.Y. S. 120; Tax. Com. v. Rife, 119 Ohio St. 83, 162 N.E. 390; Watkins v. Hall, 107 W. Va. 202, 147 S.E. 876; Re Wanzel's Est., 295 Pa. 419, 145 A. 512; Re Cross' Est., 152 Wn. 459, 278 P. 414.
S. J. Hale, of Trenton, Ga., for appellee Ollie Forester, as executrix of the estate of J. D. Forester.
The law of the domicile of the intestate controls as to the succession to his personal property, and determines who are entitled to take on his death. Price v. Tally's Adm'rs, 10 Ala. 946; Lingen v. Lingen, 45 Ala. 410. The date of the death of the intestate is the only time fixed by law to ascertain and determine who are the heirs and distributees of such intestate, and the rights of such heirs and distributees to the property of the intestate, whether real or personal, vest at that time. Perryman v. Greer, 39 Ala. 133; Palmer v. Mitchell, 117 Ohio 87, 158 N.E. 187, 55 A.L.R. 566; Re Singer's Est., 192 Wis. 524, 213 N.W. 479; Williams v. Eason, 148 Miss. 446, 114 So. 338, 55 A.L.R. 574; Woodworth v. Tepper, 152 Md. 332, 136 A. 536, 55 A.L.R. 578; Re Estate of Cross, 147 Wn. 441, 266 P. 711; Re Pivonka's Est., 202 Iowa, 855, 211 N.W. 246, 55 A.L.R. 570; National Union Bank v. McNeal, 148 S.C. 30, 145 S.E. 549; Re Root's Estate, 58 N.D. 422, 226 N.W. 598. At the time of the death of the insured, Ernest E. Forester, J. D. Forester, his father, became an heir or distributee of his estate, entitled to and vested with a right to one-half of his personal property. Code 1907, §§ 3754, 5763; Code 1923, §§ 7365, 7374. Where the designated beneficiary under war risk insurance dies before receiving all the installments thereof, the commuted unpaid proceeds of the policy are payable to the estate of the insured, become a part of the corpus of said estate and are distributable according to the laws of descent and distribution in effect in the state where the insured was domiciled at the time of his death, in cases of intestacy. 38 USCA § 514; Coleman v. Harrison, 168 Ga. 859, 149 S.E. 141; Tolbert v. Tolbert, 41 Ga. App. 737, 154 S.E. 655; Re Robbins' Pet., 126 Me. 555, 140 A. 366; Re Dempster's Est., 247 Mich. 459, 226 N.W. 243; Re Storum's Est., 220 App. Div. 472, 221 N.Y. S. 771; Re Ryan's Est., 129 Misc. Rep. 248, 222 N.Y. S. 253; Re Schaeffer's, 130 Misc. Rep. 436, 224 N.Y. S. 305; Re Ogilvie's Est., 291 Pa. 326, 139 A. 826; Whaley v. Jones, 152 S.C. 328, 149 S.E. 841; Re Johnson's Est., 154 S.C. 359, 151 S.E. 573; Branch Banking Trust Co. v. Brinkley, 196 N.C. 40, 144 S.E. 530; In re Smallwood's Est., 156 Tenn. 222, 300 S.W. 572; McDaniel v. Sloan, 157 Tenn. 686, 11 S.W.(2d) 894; Wade v. Madding, 161 Tenn. 88, 28 S.W.(2d) 642; Battaglia v. Battaglia (Tex.Civ.App.) 290 S.W. 296; Turner v. Thomas (Tex.Civ.App.) 30 S.W.(2d) 558; Re Fink's Est., 191 Wis. 349, 210 N.W. 834.
This case involves the title and method of distribution of the remaining proceeds of a war insurance policy after the death of the beneficiary named in said policy who died before the annual payments absorbed the fund. Ernest E. Forester, the soldier and insured, died in 1919, having designated J. D. Forester, his father, as beneficiary. The said father and beneficiary died in 1928, and there was left a net balance on said policy of $5,664.14.
The question is: Should this balance be distributed as of the date of the death of the insured in 1919, or the date of the death of the father, the beneficiary, in 1928? This involves a determination as to what law or act of Congress must control, that is, whether the act of 1925 (38 USCA § 514) applies, the insured having died before the enactment of same. Although the act of 1925 was enacted subsequent to the death of the insured, it was within the power of Congress to amend the act and provide for the distribution of the unaccumulated installments. The father, the first beneficiary, had no such vested right therein as to prevent the change of the beneficiary as to the installments not accumulated at the time of his death. White v. United States, 270 U.S. 175, 46 S.Ct. 274, 70 L. ed. 530. This being true, it has been settled by the decided weight of authority that the unaccumulated installments became assets of the estate of the insured and should be distributed to those who took under the laws of descent and distribution as of the date of the insured's death. National Union Bank of Rock Hill v. McNeal, 148 S.C. 30, 145 S.E. 549; Wade v. Madding, 161 Tenn. 88, 28 S.W.2d 642; Pivonka v. Pivonka, 202 Iowa, 855, 211 N.W. 246, 55 A.L.R. 570; Coleman v. Harrison, 168 Ga. 859, 149 S.E. 141; Petition of Robbins, 126 Me. 555, 140 A. 366; In re Dempster's Estate, 247 Mich. 459, 226 N.W. 243; In re Ryan's Estate, 129 Misc. Rep. 248, 222 N.Y. S. 253; In re Schaeffer, 130 Misc. Rep. 436, 224 N.Y. S. 305; In re Ogilvie's Estate, 291 Pa. 326, 139 A. 826; Battaglia v. Battaglia (Tex.Civ.App.) 290 S.W. 296; Turner et al. v. Thomas (Tex.Civ.App.) 30 S.W.(2d) 558; In re Singer's Estate, 192 Wis. 524, 213 N.W. 479; In re Fink's Estate, 191 Wis. 349, 210 N.W. 834; In re Estate of LeRoy W. Cross, 147 Wn. 441, 266 P. 711.
It seems that the Kentucky and Minnesota courts have held to the contrary, but we think that the trial court properly followed the great weight of authority in holding that the remainder of the fund vested in the estate of the insured and should be distributed to those of his heirs as of the date of his death. Authorities supra, and Perryman v. Greer, 39 Ala. 133.
As John D. Forester, the father, was living at the time of the death of the insured, he took, under our statute, one half of the fund which was a vested interest and had the right to dispose of his said interest by will; the other half going to the brothers and sisters of the deceased or their descendants, if any were dead.
Our case of Perrydore et al. v. Hester, 215 Ala. 268, 110 So. 403, 405, is not in conflict with the present holding. The act of 1925 was not construed except as to its application regarding rights which accrued prior to its passage and held it was therefore only administrative as to rights accruing prior thereto. There both the insured and his named beneficiary, his father, died before the passage of the act of 1925, and the fund had already become vested under existing statutes. Indeed, the opinion expressly states, "However, the present case involves funds accruing prior to the Act of March 4, 1925, and the decision is limited to such case."
The decree of the probate court is affirmed.
Affirmed.
SAYRE, THOMAS, and BROWN, JJ., concur.