Opinion
No. 32482.
January 18, 1937.
1. ARMY AND NAVY.
Unadopted illegitimate child of deceased veteran who, while in army, declared in writing that child was his in order to obtain allotment for her, held not entitled to inherit share payable under veteran's war risk policy as "heir" within World War Veterans' Act construed in connection with Mississippi laws of descent and distribution, there being no conflict between federal and state laws (World War Veterans' Act 1924, secs. 3, 300, 303, as amended, 38 U.S.C.A., secs. 421, 424, 511, 514; Code Miss. 1930, secs. 358, 1404).
2. MONEY RECEIVED.
Guardian of minor who received money to which he was not entitled as guardian held liable therefor as an individual.
APPEAL from the chancery court of Washington county. HON. J.L. WILLIAMS, Chancellor.
Ernest Kellner and D.S. Strauss, both of Greenville, for appellant.
This court has held that descent and distribution to war risk insurance funds are controlled by the World War Veterans' Act of 1924, and amendments thereto, and the laws of descent and distribution of Mississippi, and that there is no conflict between the federal act and the laws of this state.
Williams v. Eason, 148 Miss. 446; U.S.C.A., Title 38, sections, 424, 511, 514; Sections 1402, 1404 and 1406, Code of 1930.
Counsel contended in the trial court, as they will here, that because Dollie Bessie Cooper was not made legitimate under the laws of this state, she is entitled to no part of the estate of her deceased father. To so hold would not only create a conflict between the federal act and the laws of this state, but would make the laws of this state superior to the plain provisions of the federal act that, insofar as the proceeds of yearly renewable term insurance on the life of a deceased veteran are concerned, an illegitimate child, recognized in writing by the veteran, stands on the same footing as a legitimate child of the veteran.
Wm. I. McKay and Leonard E. Nelson, both of Vicksburg, for appellees.
The Supreme Court of the United States definitely concluded all argument as to the proper construction of the sections of the war risk insurance act and amendments thereto by their decision in the now well known and oft quoted case of Singleton v. Cheek, 284 U.S. 493, 76 L.Ed. 419. This case is also determinative of the question or issue raised by the appellant.
Under the agreed state of facts Wesley Cooper died intestate, leaving surviving him only his lawful widow, Mimie Cooper, and an illegitimate child, Dollie Bessie Cooper. Under the laws of the state of Mississippi the lawful widow is the sole distributee of decedent's etate, and the sole heir at law of the decedent, for the reason that the illegitimate child was never made legitimate in accordance with the laws of this state, which laws are exclusively controlling.
Where commuted value of unpaid installments are paid to the estate of the insured, state law controls exclusively the question of descent and distribution of such funds.
Remaining installments due on war risk insurance policies upon the death of the beneficiary therein designated become assets of the insured's estate, and should be distributed in accordance with the laws of descent and distribution of the state of the deceased veteran's residence as of the date of the insured's death.
Hunter v. James, 144 So. 576; Singleton v. Cheek, 284 U.S. 493, 76 L.Ed. 419; Vita v. Morris, 75 S.W. 157; Seeley v. U.S., 7 F. Supp. 434.
Distribution of war risk insurance payable after death of beneficiary held controlled by the laws of descent and distribution of the state of the soldier's residence.
U.S. v. Rose, 57 S.W.2d 350; Condon v. Nallan, 30 F.2d 995; Porter v. Watson, 181 S.E. 683.
By reference to the agreed statement of facts it will be seen that the appellants are not contending that the recognition by the deceased veteran of the illegitimate child in the allotment certificate had the effect of legitimatizing the child under the laws of this state, but on the contrary they admit that she was never made legitimate in accordance with the laws of the state of Mississippi or otherwise. From the authorities above cited it will be readily seen that the federal statute, regardless of the fact that it makes an illegitimate child one of the permitted class of beneficiaries, has no bearing whatever on the case, and has no control of the descent and distribution of the funds paid to the deceased veteran's administrator.
The federal statutory provision as to class of persons permitted to be designated as beneficiaries does not affect descent and distribution.
Hunter v. James, 144 So. 577; Brown v. U.S., 65 F.2d 67; O'Quain v. U.S., 28 F.2d 350.
To construe federal statute as controlling descent and distribution would abrogate state law.
In re Ogilvie's Estate, 139 A. 826; Hunter v. James, 144 So. 576.
While we do understand that it is the purpose of the Moyse estate to pay any deficiency, such estate has not legally obligated itself so to do, therefore, the appellees and cross-appellants prefer to stand on their right to have the individual liability or non-liability of M.M. Moyse judicially determined. The individual liability of M.M. Moyse is unquestionable.
24 C.J. 742; Elmore v. Elmore, 51 L.R.A. 261; Smith v. Jeffreys, 16 So. 377; Clay v. Boyce, 62 Miss. 390.
M.M. Moyse is individually liable. It is not imaginable that Moyse is not individually liable. He received one thousand dollars to which he had no shadow of right or title in any capacity. To the demand of the true owner for Moyse to reply that he received the money as guardian but magnifies the absence of any substance to his position. So far we have found no case involving a guardian. But we have found many authorities involving executors and administrators. The analogy is entirely true.
24 C.J. 742; Elmore v. Elmore, 51 L.R.A. 261; Smith v. Jeffreys, 16 So. 377; Clayton v. Boyce, 62 Miss. 390.
It appears from the agreed facts that the guardian now has the one thousand dollars in cash and in investments thereof, in, as a part of, and mingled with, the estate of his ward. In these circumstances, he is liable both individually and also as guardian.
The principal question involved in this case is whether or not under the World War Veterans' Act, and amendments thereto (chapter 320, secs. 1, 3, 300, 303, 43 Stat. 607, 624, 625, chapter 723, sec. 14, 44 Stat. 798, chapter 875, sec. 13, 45 Stat. 967, chapter 863, sec. 1, 46 Stat. 1016, Title 38 U.S.C.A., secs. 421, 424, 511, and 514), construed in connection with the laws of descent and distribution of this state, an unadopted, illegitimate child is an heir.
William F. Laughlin, as administrator de bonis non of the estate of Wesley Cooper, deceased, and Mimie Cooper, the widow of the latter, filed their bill in the chancery court of Washington county against M.M. Moyse, guardian of Dollie Bessie Cooper Jackson, a minor, and the guardian individually to recover the sum of one thousand dollars theretofore paid to the guardian by R.L. Jayne, the former administrator of the estate of the decedent, Wesley Cooper. A trial was had on bill, answers, and agreed facts. Pending the appeal, the guardian, M.M. Moyse, died, and Sidney L. Moyse was appointed administrator of his estate. A decree was rendered in favor of Laughlin, administrator of Cooper's estate against M.M. Moyse, guardian, for the one thousand dollars, but denying relief against him individually. From that decree the administrator of the guardian appeals, and the administrator of Cooper, the deceased, prosecutes a cross-appeal.
Wesley Cooper, the deceased, was a World War veteran. He died intestate on March 21, 1919, and left surviving him his mother, Alice Cooper, his lawful widow, Mimie Cooper, and an illegitimate child, Dollie Bessie Cooper, since married, Jackson. At his death he held a World War veteran's insurance policy in the sum of ten thousand dollars, in which his mother, Alice Cooper, was named as beneficiary. The latter drew the monthly installments due under the policy until her death, which occurred on February 28, 1929. In November, 1932, R.L. Jayne qualified as administrator of the estate of Wesley Cooper and collected from the Veterans' Administration, as a part of his estate, the commuted sum of five thousand eight hundred forty-seven dollars, the value of the unpaid monthly installments provided by the policy. Conceiving that the illegitimate child was entitled to inherit as if legitimate, R.L. Jayne paid over to M.M. Moyse, her guardian, the sum of one thousand dollars of the commuted insurance. This payment was made without the knowledge or consent of Mimie Cooper, the widow of the deceased.
The illegitimate child was never adopted by Wesley Cooper as provided by section 358, Code of 1930. His wife was not her mother. Her mother was another woman, whom her father never married. In 1918, while in the Army, Wesley Cooper obtained an allotment for the child; in order to do so, he declared in writing that she was his illegitimate child. It is contended that this fact, under the World War Veterans' Act, made the child a lawful heir. Undoubtedly under chapter 320, secs. 3, 300, 43 Stat. 607 and 624, and amendments thereto, Title 38 U.S.C.A., secs. 424 and 411, she was made eligible to be named as a beneficiary in the insurance policy. It is therein provided that the insurance shall be payable "only to a spouse, child, grandchild, parent, brother, sister, uncle, aunt, nephew, niece, brother-in-law or sister-in-law, or to any or all of them," and that the term "child" includes an illegitimate child, but as to the father only, if acknowledged in writing signed by him, or if he has been judicially decreed to contribute to such child's support, or has been judicially decreed to be the putative father of such child. The act neither by its express language nor by necessary implication makes the illegitimate child, so acknowledged by the father, his lawful heir.
Chapter 320, sec. 303, 43 Stat. 625, chapter 553, sec. 14, 43 Stat. 1310, Title 38 U.S.C.A., sec. 514, provides, among other things, that, where the designated beneficiary in the policy survives the insured and dies prior to receiving all of the two hundred and forty installments provided for by the policy, "there shall be paid to the estate of the insured the present value of the monthly installments thereafter payable, said value to be computed as of date of last payment made under any existing award."
Under the laws of descent and distribution of this state, on the death of the husband intestate, without children or descendants of children, his widow inherits his entire estate. Section 1404, Code 1930. In Williams v. Eason, 148 Miss. 446, 114 So. 338, 55 A.L.R. 574, the court held that the World War Veterans' Act of 1924 and the amendments thereto were not in conflict with the laws of descent and distribution of this state, and that the unpaid installments on a policy of the character here involved descended to the sole surviving heir of the insured. Although not directly in point, DeBaum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, and Lewis v. Jefferson, 173 Miss. 657, 161 So. 669, support the principle laid down in the Williams Case. And Singleton v. Cheek, 284 U.S. 493, 52 S.Ct. 257, 259, 76 L.Ed. 419, 81 A.L.R. 923, although not in point on its facts, holds that all installments of such a policy, whether accruing before the death of the insured or after the death of the beneficiary named in the policy, become assets of the estate of the insured as of the time of his death "to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of his residence, such heirs to be determined as of the date of his death, and not as of the date of the death of the beneficiary."
There is no conflict between the federal statute and the laws of descent and distribution of this state. The federal statute simply makes an illegitimate child, under the conditions therein named, a permitted beneficiary in the policy of insurance; it does not undertake to make such child an heir to the estate.
The chancellor in his decree dismissed the bill so far as the individual liability of the guardian was concerned. This was error. Having received money to which he was not entitled as guardian, he is liable therefor as an individual. Clayton v. Boyce, 62 Miss. 390; Smith v. Jeffreys (Miss.), 16 So. 377. We express no opinion as to liability of the guardian in his representative capacity on his official bond; the bond was not sued on.
Affirmed on direct appeal, and reversed and remanded on cross-appeal.