Opinion
No. 3883.
July 28, 1930. Rehearing Denied July 31, 1930.
Appeal from District Court, Hunt County; Newman Phillips, Judge.
Action by Eugenia Turner and others against Lucy Thomas and others. From the judgment, plaintiffs C. A. Gardner and others alone appeal.
Affirmed.
Willie Oliver Turner, a Texas solider in the World War, died intestate November 18, 1918, leaving surviving him his father, J. S. Turner, his mother, Eugenia Turner, and other relatives hereinafter named. As provided by law (38 USCA §§ 511-518), the United States issued a certificate insuring said Willie Oliver Turner's life; and after his death, as installments of such insurance became due, paid same to said J. S. Turner, named as the beneficiary in the soldier's application for the insurance. J. S. Turner died December 19, 1927, when installments of the insurance valued at $5,503.29, after deducting certain charges, remained unpaid. Said sum was paid by the federal government to D. N. Hargrove as administrator of the estate of said Willie Oliver Turner, deceased. This suit was by said Eugenia Turner, mother of said deceased soldier, and her children, appellants C. A. Gardner, Clara Gardner Johnson, and Addie Gardner Maroney, by a former marriage, and her grandson, Sidney C. Jenkins, son of a child by said marriage, as plaintiffs, against said Hargrove as administrator of said deceased soldier's estate, appellee Lucy Thomas, daughter of said J. S. Turner by a former marriage, and Corine Cochran and William Truman Turner, children of a deceased son by said marriage, the only heirs at law of said J. S. Turner, as defendants. It was to partition and distribute said $5,503.29, owned, it was alleged in the plaintiffs' petition, one-half by the soldier's mother and the other one-half by his half brothers and sisters and descendants of deceased half brothers and sisters, named above. The trial was to the court without a jury, and resulted in a judgment in favor of Eugenia Turner for one-half the fund, and in favor of appellee Lucy Thomas, Mrs. Corine Cochran, and William Truman Turner for the other one-half thereof. The appeal was by C. A. Gardner, Clara Gardner Johnson, Addie Gardner Maroney, and Sidney C. Jenkins alone against the judgment only so far as it denied them a recovery of any part of the fund and awarded Lucy Thomas, Mrs. Corine Cochran, and William Truman Turner a recovery of a part thereof.
Crosby Estes, of Commerce, for appellants.
Ray Thomas and A. Burleson, all of Lawton, Okla., T. W. Thompson, of Greenville, and O. C. Mulkey, of Commerce, for appellees.
By force of the federal statute (section 514 of title 38 of the United States Code Annotated), the $5,503.29 in controversy belonged to the deceased soldier's estate. It passed to his heirs according to the laws of Texas. Articles 2570, 3314, R.S. 1925. The parties agree that the sole question for determination here is as to whether the heirs entitled to take the fund were heirs of the soldier as of the date of his death, to wit, his father, said J. S. Turner, and his mother, said Eugenia Turner, or heirs of the soldier as of the date of the death of the beneficiary named in the application for the insurance, to wit, his said mother and half brothers and sisters and descendants of other such brothers and sisters, named in the statement above. We think the conclusion of the trial court that it was the soldier's heirs as of the date of his death who were entitled to the fund was correct. It is supported by the decision of the El Paso Court of Civil Appeals in Battaglia v. Battaglia, 290 S.W. 296, where the question was rather fully discussed, and by decisions of courts of other states in cases as follows: Carroll v. Sheppard, 154 S.C. 359, 151 S.E. 573; Price v. McConnell (Va.) 149 S.E. 515; Branch Banking Trust Co. v. Brinkley, 196 N.C. 40, 144 S.E. 530; Root v. Childs, 58 N.D. 422, 226 N.W. 598; Pivonka v. Pivonka, 202 Iowa 855, 211 N.W. 246, 55 A.L.R. 570; Singer v. Tikalsky, 192 Wis. 524, 213 N.W. 479; McDaniel v. Sloan, 157 Tenn. 686, 11 S.W.2d 894; In re Smallwood's Estate, 156 Tenn. 222, 300 S.W. 572; Williams v. Eason, 148 Miss. 446, 114 So. 338, 55 A.L.R. 574; Coleman v. Harrison, 168 Ga. 859, 149 S.E. 141; National Union Bank v. McNeal, 148 S.C. 30, 145 S.E. 549; In re Storum's Estate, 128 Misc.Rep. 168, 218 N.Y.S. 394; Hallbom v. Pagel (Minn.) 229 N.W. 344; Funk v. Luithle, 58 N.D. 416, 226 N.W. 595. Appellants cite Sutton v. Barr, 219 Ky. 543, 293 S.W. 1075, and Sizemore v. Sizemore, 222 Ky. 713, 2 S.W.2d 395, by the Kentucky Court of Appeals, as cases holding to the contrary. We think the reasoning in the other cases cited more satisfactory, and are better satisfied to follow them than those by the Kentucky court.
The judgment is affirmed.