Schwall v. Deering

THE COURT.

An appeal from an order made pursuant to section 1465 of the Code of Civil Procedure, setting aside to Margaret Theresa Schwall, decedent's widow, certain proceeds of a war risk insurance policy as property exempt from execution under section 690 of the same code.

The facts are as follows: William Schwall died on December 2, 1925. By the terms of a war risk insurance policy issued to him while a soldier in the United States army during the World War the United States agreed to pay him the monthly sum of $57.50 if he became permanently and totally disabled while the policy was in force, and upon his death similar payments to his beneficiary, the total number of payments not to exceed 240. He named his sister, Mamie Deering, as the beneficiary under the policy, but failed to pay the premiums thereon after May 21, 1919. The beneficiary brought suit on the policy against the United States, and on May 22, 1930, it was adjudged that the deceased became permanently and totally disabled on May 21, 1919. Since December 2, 1925, the beneficiary has been and continues to be paid the monthly sums payable under the policy.

In August, 1924, Schwall married the petitioner" herein, who subsequent to the rendition of the judgment mentioned was appointed the administratrix of his estate. As such administratrix, she made claim for the payments due under

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said policy from May 21, 1919, the date of the permanent and total disability of the decedent, to December 2, 1925, the date of his death; and the United States Veterans’ Bureau has paid to her as administratrix the sum of $4,085.92, the sum of $453.99 being withheld pending adjustment of the question of attorney’s fees. These sums, upon the petition of Margaret Theresa Sehwall, decedent’s widow, were, by an order of the superior court in which the administration of the estate of decedent is pending, set aside to her as property exempt from execution under section 690 of the Code of Civil Procedure. The said sister and other heirs at law of the decedent contested the petition and have appealed from the order.

The World War Veterans’ Act makes provision for payment under such policies to certain permitted classes and also to the insured during his total and permanent disability, and the above amount was paid to decedent’s estate pursuant to section 451 of title 38 of the United States Code Annotated, which at the time of his death read as follows: “The amount of the monthly instalments of compensation, yearly renewable term insurance or accrued maintenance and support allowance which has become payable under the provisions of parts II, III, or IV of this chapter but which has not been paid prior to the death of the person entitled to receive the same may be payable to the personal representative of such person, provided that in cases where the estate of the decedent would escheat under the laws of the place of his residence such instalments shall not be paid to the estate of the decedent but shall escheat to the United States and shall be credited to the appropriation from which the original award was made.” (June 7, 1924, chap. 320, sec. 26, 43 Stats. 614.)