
    Common Pleas Court of Fulton County.
    Lloyd G. Edgar, admr. v. Stanton U. Gray, et al.
    
    Decided September 13, 1933.
    
      F. S. and J. M. Ham, for Lloyd G. Edgar, administrator, et al.
    
      Lawrence C. Warden, for Dan Sharp, et al.
    
      A. W. Cininger, for minor defendants.
    
      Ward & Johnson, for others.
    
      
       Affirmed by the Court of Appeals November 6th, 1933.
    
   Wolf, J.

This is an action seeking the direction and order of the court as to the distribution of a fund arising from the present value of the unpaid installments of Government insurance upon the life of Walter Sharp, a deceased veteran of the World War, and is brought by the administrator of the estate of the deceased soldier.

The facts are, briefly, as follows:

1. Walter Sharp was the son and only child of George Matthew Sharp and Lola G. Sharp, and was an American soldier in the World War and died in France on the 29th day of September, 1918, while such soldier; and at the time of his death carried Government insurance upon his life in the sum of $10,000.

2. Lloyd G. Edgar, plaintiff, is the administrator of the estate of said Walter Sharp.

3. Lola G. Sharp, the mother of Walter Sharp, was named as beneficiary in said contract of insurance.

4. Walter Sharp, the deceased soldier, never had either brother or sister of either the whole or the half blood.

5. Walter Sharp, the deceased soldier, was survived by George Matthew Sharp, his father and by Lola G. Sharp, his mother.

6. After the’death of Walter Sharp the soldier, Lola G. Sharp, the mother and beneficiary, received payments in monthly installments in the sum of $57.50 upon said insurance policy, to the date of her death.

7. George Matthew Sharp, the father of Walter Sharp, died November 23, 1931.

8. Lola G, Sharp, the mother and beneficiary under the policy of insurance upon the life of Walter Sharp, the deceased soldier, died March 15, 1933.

9. At the date of the death of Lola G. Sharp, the beneficiary, the present value of the unpaid installments of said insurance amounted to $3,463.00.

10. Walter Sharp, the deceased soldier, was never married, and left no children or descendants; he left no grandfather and no grandmother, him surviving, on either the paternal or maternal side.

11. George Matthew Sharp, the father of Walter Sharp, the deceased soldier had had five brothers, to-wit: John Sharp, Will Sharp, Oscar Sharp, Dan Sharp, Joseph Sharp, and two sisters, to-wit: Emma Frankfather, Ella Snyder, of the whole blood and never had had brothers or sisters of the half blood.

12. Will Sharp, Oscar Sharp and Dan Sharp still survive said Geo, M. Sharp.

13. Joseph Sharp, died November 21, 1914, leaving Amanda Sharp, his widow, since intermarried with one George Smith, and leaving no descendants.

14. John Sharp died October 1, 1923, leaving a widow and four daughters and no others him surviving, to-wit: Nora Sharp, his widow, Effie Hull, Blanche Porter, Hazel Clark and Alta Pugh, all of whom still survive their father, John Sharp, except Alta Pugh, who died in 1924, leaving Floyd Pugh, her widower, and Viola Pugh and Lenora Pugh, minor daughters, and no others.

15. Emma Frankfather died April 21, 1931, leaving surviving her, Lafayette Frankfather, widower, Druzilla Slee, Maude Beebe, daughters, and Vern Frankfather, Rol- and D. Frankfather, sons, and no others. -

16. Ella Snyder died January 27, 1910, leaving George Snyder, her widower and two sons and one daughter, to-wit: George Snyder, her widower, who died March 29, 1923, Arthur Snyder, Lawrence Snyder, sons, Golda Saul, daughter, and no others.

17. Lola G. Sharp, the mother and beneficiary, of the deceased soldier died March 15, 1933, leaving her surviving two brothers and one sister, to-wit: Stanton U, Gray, Morton S. Gray, brothers and Bertha Gray, sister, and no others.

18. Lola G. Sharp, the mother and beneficiary of the deceased soldier, died testate, and by her last will and testament gave to her brother Morton S. Gray, all of her estate; and Lloyd G. Edgar, the plaintiff herein, is the executor of said last will and testament of said Lola G. Sharp.

19. The deceased soldier, Walter Sharp, died intestate.

20. The certificate of insurance issue to the deceased soldier is, in part, as follows:

“Certificate No. 3,393,213
Date insurance effective, Aug. 7, 1918.
“This certifies that Walter Sharp has applied for insurance in the amount of $10,000, payable in case of death or total permanent disability in monthly installments of $57.-50.
“Subject to the payment of the premiums required, this insurance is granted under the authority of an Act amending ‘An Act entitled’ ‘An Act to authorize the establishment of a Bureau of War Risk Insurance in the Treasury Department,’ approved September 2, 1914, and for other purposes, approved October 6, 1917, and subject in all respects to the provisions of such Act, of any amendments thereto, and of all regulations thereunder, now in force or hereafter adopted, all of which, together with the application for this insurance, and the terms and conditions published under autority of the Act,' shall constitute the contract.”
“W. G. McAdoo, Secretary of the Treasury.”

21. The award to the beneficiary is, in part, as follows:

“To Mrs. Lola G. Sharp, Wauseon, Ohio.
“You are hereby notified that, as the person named as beneficiary by Walter Sharp, to whom insurance in the amount of $10,000 was issued by the Unitéd States under the act of Congress of October 6,1917, and the amendments thereto, you are entitled to receive insurance in payments of $57.50 per month from the 30th day of September, 1918, to the 30th day of September, 1938.
“Provided, however, that in the event of your death, prior to the date last mentioned, the remaining payments shall be made in accordance with regulations made by the director pursuant to the provisions of the Act.
*****
“Authorized by the Bureau of War Risk Insurance. This 17th day of January, 1919.
“Harry D. Lindsley, director. Per W. L. S.
“Approved: Carter Glass, Secretary of the Treasury.”

22. Letter of instruction from the director of insurance to the legal representative of the estate of Lola G. Sharp is, in part, as follows:

“Washington, April 13, 1933.
“The Veterans’ Administration has been advised of the death of Mrs. Lola G. Sharp, beneficiary, who at the time of death was receiving monthly installments of insurance. The balance of this insurance is now payable in a lump sum to the estate of Walter Sharp the above captioned deceased veteran, under the provisions of Section 303 of the World War Veterans’ Act (38 U. S. Statutes Code 514) provided he left no will designating a beneficiary and there are persons capable of inheriting his estate.”

In Palmer v. Mitchell, 117 Ohio St., 87, the 2nd paragraph of the syllabus is as follows:

“Under Section 303, of the Act of Congress, approved March 4, 1925, if the designated beneficiary survives the insured and dies prior to receiving all the installments of insurance payable, the present value of the insurance thereafter payable must be paid to the estate of the insured soldier and in case of his intestancy, distributed according to the law of descent and distribution in force at the date of the soldier’s death.”

See also Waltz v. Waltz, 121 Ohio St., 46; Singer v. Tikalsky, et al, 213 N. W., 479; Schmidt v. Dupuis, (Ill.) 180 N. E., 880, Singleton v. Cheek, 284 U. S., 493.

Under the facts in the instant case, applying the law as enunciated in the cases cited above it is perfectly clear,, that,

1. The present worth of the unpaid installments at the date of the death of the beneficiary was properly and legally paid to the administrator of the estate of the deceased soldier.

2. That such sum should be distributed to those who were entitled to the personal estate of Walter Sharp, the deceased soldier, under the law as it existed at the date of the death of said Walter Sharp, deceased, to-wit: September 29, 1918.

Under the facts of this case the statutes of descent and distribution of personal property in force in Ohio September 29, 1918, provided as follows:

“Section 8578, General Code: When a person dies intestate and leaves personal property, it * * * (Section 8574, General Code) shall ascend to the father; if the father is dead, then to the mother.”

Under the facts of this case, the statutes of descent and distribution of personal property in force in Ohio November 23, 1931, the date of the death of George Matthew Sharp, father of Walter Sharp, deceased, provided as follows:

“Section 8578, General Code: When a person dies intestate and leaves personal property, it shall be distributed * * * to the husband or wife relict of such intestate.”

The case of Singer v. Tikalsky, et al, 213 N. W., 479, is a case dealing with the distribution of War Risk Insurance, and in the opinion, at page 480 is found the following language which, it seems to me, is peculiarly applicable to the case at bar:

“Immediately upon the death of the insured the title to his estate vested in his heirs. Caldwell & Gates Co. v. Mennes, (Wis.), 209 N. W., 588.
“It does not necessarily follow, however, that there was vested in the heirs any interest in this particular fund. What did vest was the right to the estate of the deceased, whatever it might be. The whole amount of the policy not having been paid to the beneficiary, the estate of the deceased was augmented by the present worth of future payments. When this sum was paid to the administrator under the law, it must be distributed to his heirs as of the date of his death. The mother having had a vested right to one-half of the estate, that right, upon her death vested in her heirs, so that the trial court correctly held .that the estate should be distributed, one-half to the father, and one-half to the sisters and brother, as representatives of their deceased mother.”

There are other sections or provisions of the statutes of descent and distribution of personal property providing for the distribution of such property in the event of the death of the named heir, in this case the father and mother. But, inasmuch as the cases hold that distribution is to be made to those entitled thereto at the date of the death of the insured, in my judgment the provisions above referred to have no application to the instant case.

Immediately upon the death of the insured Walter Sharp, the title to his estate vested in his heir, his father, George Matthew Sharp; and under the Act of March 4, 1925, there always remained the contingency that Walter Sharp’s estate would secure whatever remained of the insurance after the death of the beneficiary. This estate is what vested in the father, George Matthew Sharp.

The decided cases hold that those entitled to the insurance paid to the estate of the soldier must be determined as of the date of his death. The present value of the installments was properly paid to the administrator of the soldier’s estate on the death of his mother, the beneficiary. It became a part of his estate, to be distributed among his heirs as of the date of his death, September 29, 1918. On that date his only heir was his father, George Matthew Sharp, and he became vested with the whole of the estate whatever, if anything, that might finally amount to, subject to the payment of claims allowed and costs of administration. The father having died before coming into possession of the estate, such estate, when lawful possession thereof might be obtained, should, properly, be paid to the personal representative of said George Matthew Sharp.

Immediately upon the death of George Matthew Sharp on November 28, 1931, the title to his estate vested in his heirs, subject, of course, to any lawful charges against the same.

The probability that the estate of George Matthew Sharp would be augmented by the receipt of any portion of this War Risk Insurance was subject to the contingency that the beneficiary died prior to the time that the fund was entirely paid to the beneficiary. But that contingency did not affect the vesting; although vested there was a possibility that there might never be anything to come into possession, but if there was it, nevertheless, became a part of the estate of his heir, and his only heir was Lola G. Sharp, his widow, and upon final settlement of the estate of George Matthew Sharp, the whole of his estate, after payment of lawful charges against the same should be paid to the personal representative of Lola G. Sharp. The rights of Lola G. Sharp are dependent upon the provisions of the statutes of descent of this state; she takes from her deceased husband. Under the laws of this state Lola G. Sharp had the right to make a will and leave her estate to whomsoever she chose, and if, as alleged in the petition, she did make such will, then the executor of such will should, after the payment of all costs and expenses against the estate of said Lola G. Sharp, pay the residue of such estate to the legatee named in the will.

It does not appear in this proceeding that there is in existence any personal representative of George Matthew Sharp, deceased, and some question has been raised in argument as to whether or not that is absolutely necessary. From a purely technical legal standpoint it might be possible that the appointment of such a person is necessary to effect the transfer of this property to its final destination, but it seems to me that under certain contingencies such appointment might be dispensed with.

The second paragraph of the syllabus in the case of Catlin et al v. Huestis, Exr., 5 C. D., 23, is as follows:

“Where all the debts of a deceased person have been paid, the courts neither encourage nor tolerate proceedings in the Probate Court for the administration of his estate, nor do they tolerate the expenditure of money for the mere form of administering upon such estate.”

This view is also supported by the case of Posegate v. South, et al., 46 Ohio St., 391.

Unless it should appear that there are legal debts existing against the estate of George Matthew Sharp, properly payable out of his estate, it seems to me that it would be to the interest of the estate, both, from the standpoint of economy and a speedy determination of this matter to dispense with the appointment of an administrator of the estate of George Matthew Sharp.

Entry may be drawn in accordance with the views herein expressed and when approved by all counsel interested herein filed with the clerk. Bond in appeal fixed at the sum of $100.00.  