Opinion
No. 21466
Decided May 29, 1929.
War risk insurance — Widow's interest, as ultimate beneficiary, in unpaid installments due beneficiaries, not assignable — Soldier's widow entitled to year's allowance from proceeds.
ERROR to the Court of Appeals of Lucas county.
In September, 1917, Roy O. Waltz, a soldier in the World War, applied for and secured war risk insurance from the United States government. He designated as his beneficiaries in the policies of insurance his father, Virgil B. Waltz, and his mother, Mary A. Waltz, each to receive the sum of $5,000 in case of his death. On May 13, 1918, the soldier married Dorothy Waltz, and, subsequently, on August 9, 1918, died, while in service in France, intestate, without issue, leaving his wife, Dorothy, as his next of kin. On or about May 30, 1918, the soldier directed his father and mother, the beneficiaries in the policies, to pay his wife, Dorothy, in the event of his death, the sum of $28.75 monthly out of his war risk insurance. This direction was complied with by the parents, and that sum was paid monthly by the beneficiaries to the soldier's widow, who signed receipts for the monthly payments. In this record the receipt was in the following form:
"March 4, 1920.
"Received from M.A. and V.B. Waltz, twenty-eight and 75/100 dollars insurance of Roy O. Waltz, Feb. 1, to 29 and hereby release all further interest in Risk Insurance, $28.75.
"[Signed] Dorothy Waltz."
On December 19, 1927, the father Virgil B. Waltz, died, and thereafter Hahn was appointed administrator of the estate of deceased soldier. As such administrator he received from the Bureau of War Risk Insurance the sum of $3,065, being the computed cash value of the remaining unpaid installments of the father's policy. This sum was the only property left in the soldier's estate, appraised at $3,065, out of which 750 was set off by the appraisers to Dorothy, the soldier's widow, as her year's allowance.
Ray L. Waltz, a brother of the deceased soldier, was appointed administrator of his father's estate. Ray, as an individual, and also as administrator, joining with the mother, Mary A. Waltz, filed petitions in the probate court, seeking a review of the widow's allowance, and asking that it be set aside and vacated. The soldier's widow challenged each of the petitions by a general demurrer. The probate court sustained the demurrers and dismissed the petitions. This judgment was affirmed by the Court of Appeals, whereupon error was prosecuted to this court.
Mr. Ed. Buckenmyer, for plaintiffs in error.
Mr. H. Joe Cannon and Mr. Leo J. Hahn, for defendants in error.
Since the beneficiary in the policy, Virgil B. Waltz, survived the insured soldier, but died prior to receiving all the remaining unpaid insurance installments, the present value of the insurance installments thereafter paid into the estate of the deceased soldier descended to the soldier's widow. Palmer v. Mitchell, Admr., 117 Ohio St. 87, 158 N.E. 187, 55 A. L. R., 566. His widow was thereafter entitled to the whole of the unpaid installments received by the soldier's estate, unless she is precluded by the release signed by her. The probate court sustained the demurrers to the petitions for review of the widow's allowance for the reason that at the time of the execution of the release her interest in the war risk insurance "was not assignable or subject to release." When Dorothy, the soldier's widow, signed the alleged release, she had then no present interest to assign; her interest, if it should ever accrue to her, was contingent upon the father's death before receiving all the unpaid installments. Moreover we are of opinion that, under the legislative inhibitions of Congress pertaining to this class of war risk insurance, the widow's interest as an ultimate beneficiary in the unpaid installments was not assignable. The fund in the hands of the soldier's administrator accruing from the father's policy belonged to the widow; and since the award of the widow's allowance was less than the amount in that fund the court committed no prejudicial error in dismissing the petitions for review of the allowance.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.