
    BARKER v. UNITED STATES.
    District Court, S. D. Alabama.
    May 30, 1933.
    S. F. Hobbs, of Selma, Ala., for plaintiff.
    Alex C. Birch, U. S. Atty., and J. E. Meredith, Asst. U. S. Dist. Atty., both of Mobile, Ala.
   ERVIN, District Judge.

The facts of this ease are that one Lewis Walters, legally married Maggie Tubb on March 29, 1914, in Perry county, Ala. That on July 21,1918, he illegally married Arkansas Hogan at Corning, N. Y., without having been divorced from his wife, Maggie Walters. That he entered the military service of the United States on August 30,1918, where he applied for and was granted a war risk yearly renewable insurance policy in the sum of $10,000, instructing that it should be payable to Arkansas Walters, his wife. That he died on March 28,1919, when the policy was still in force.

After his death Arkansas Hogan or Walters, as the widow, claimed and was allowed the monthly payments by the government until April 30,1924, amounting to $3,513.06, at which time the government had ascertained for the first time that Walters had previously married and never been divorced from Maggie Walters.

On the 16th day of March, 1929, D. K. Barker was appointed administrator of Lewis Walters by the probate court of Perry county, Ala., and this suit was instituted.

Upon learning that Walters had been married to Maggie Tubb and had not been divorced before he married Arkansas Hogan, a hearing was had before the Central Committee on Recovery of the Veterans’ Bureau, and on July 18, 1925 this Committee held:

“It appears that soldier had a living, undivorced, legal wife at the time of the marriage to said Arkansas Walters. It has been held by the legal advisors of the bureau that Arkansas Walters was not the lawful wife of deceased soldier and is not, therefore, entitled to benefits.”

Decision.

“It is the opinion of this committee that as Arkansas Walters is not entitled to receive benefits from the bureau, she is not a ‘beneficiary’ as that term is intended and used in section 28 of the World War Veteran’s Act, 1921.”

Subsequent to the above decision by the Veterans’ Bureau and the appointment of the plaintiff as administrator of Lewis Walters there was an award by the Veterans’ Bureau of $5,759.08 to D. K. Barker, administrator de bonis non of estate of Lewis Walters, which sum was paid to him. The only question in dispute is the right of the plaintiff to recover from the government the sum paid by it to Arkansas Hogan. As to this the government claims that the administrator of Lewis Walters is estopped by the action of Lewis Walters himself in declaring that Arkansas Hogan was his wife and so inducing the government to pay to her the sums it did pay before it learned that Walters had previously married Maggie Tubb.

The administrator and the government are the only parties in this suit, and the only question in the case seems to be one of estoppel.

There have been several cases in the reports where the dead soldier has wrongfully married a second time; in Florida where these facts were presented in U. S. v. Garrison (D. C.) 39 F.(2d) 225, the case involved a converted policy and not a yearly renewable policy. In Louisiana tbe ease was presented in Robinson v. U. S. (D. C.) 33 F.(2d) 545. The case went off on a Louisiana statute.

In Cummings v. U. S. (D. C.) 34 F.(2d) 284, tbe facts were that there was only one wife wbo was married to the soldier after a divorce had been granted to her, but before the year bad expired. Under tbe laws of that state she bad no right to remarry, and tbe court held that this marriage was void, and, though the soldier declared her to be bis wife, she was denied recovery because her marriage was held to be void.

In Schiefer v. U. S. (D. C.) 52 F.(2d) 527, tbe facts are almost identical with tbe present ease, and, in addition to that, tbe ease went off on tbe same plea of estoppel as is presented in this case; tbe court bolding that because in marrying a second woman wbo was ignorant of tbe fact that be bad been married before, and, declaring her to be tbe beneficiary as bis wife, be induced tbe government to make payments to her, tbe administrator was estopped from recovering from tbe government. Tbe court in that case seemed to have been very much impressed in reaching tbe conclusion it did by the intent of the dead soldier in declaring tbe woman be bad married tbe second time to be bis wife and beneficiary, and says on page 529 of 52 F.(2d): “I am therefore of the opinion that a woman free to marry and who, in good faith, married a soldier without notice or knowledge of any legal incapacity on Ms part to enter into marriage with her, is, within the meaning and intendment of tbe congressional acts governing war-risk insurance, bis wife when as beneficiary she is named as such in Ms application for insurance. Until higher authority constrains me to a different conclusion, I shall not assume that Congress intended to heap injury upon insult and to further penalize an innocent woman wbo bad been defrauded into a void marriage.”

It would be observed from tbe last sentence in that paragraph that tbe court must have bad some serious doubt of tbe conclusion he reached because of- bis sympathy for tbe second woman wbo was married by tMs soldier.

■ In Alabama we have no such statute as Louisiana bad, and whatever might be tbe bearing of tbe Florida ease along the same line, if tMs was a similar pohey to tbe one construed there, that was a converted policy, and not controlled by tbe same statute as tbe present one is.

In Alabama tbe second marriage by a man wbo has a -living wife from whom be bad never been divorced is void, and it occurs to me that tbe Veterans’ Bureau reached tbe correct conclusion when it terminated tbe rights of Arkansas Hogan upon discovering that Lewis Walters bad a living wife when be married her. She therefore has no rights to be considered in this case.

An estoppel such as this is an equitable defense, though asserted in tbe law court.

It is undoubtedly true that, if Lewis Walters estopped himself, then undoubtedly bis administrator would also be estopped from suing tbe government, but that would be on tbe idea that tbe administrator was only seeking to enforce such rights as tbe deceased, Lewis Walters, himself bad. In tMs case no such rights are involved.

It is true that Walters declared Arkansas Hogan to be bis wife, but, under tbe terms of tbe federal law under- which tbe pohey was taken out, be was limited to certain beneficiaries and not left to declare whomsoever be would. In no event after bis death was tbe money to be administered as a general estate in that tbe administrator came into possession of it as tbe property of Lewis Walters.

Why should Maggie Walters be estopped because Lewis Walters misled tbe government? The law shows little consideration for tbe woman wbo was married to Walters while be bad a living wife, and I cannot see that by so bolding tbe court adds any insult or injury to her by declaring what tbe law is. We may have a great deal of sympathy for her because of tbe wrong Lewis Walters committed on her, but that cannot affect tbe decision in tbe case as it seems to have done in tbe Schiefer Case. Certainly it would not be doing eqMty to tbe first wife to declare the administrator estopped to recover tbe money for her when she bad done nothing to induce tbe government to pay tbe money to Arkansas Hogan.

If then tbe doctrine óf estoppel is an equitable one, as to which there can be no dispute, what equity would debar Maggie Walters wbo has done nothing to induce tbe government to pay to Arkansas Hogan tMs money?

I apprehend that an examination of all the cases involving an estoppel in pais will show that this doctrine applies only against tbe person wbo sought to enjoy tbe fruits of tbe recovery.

Suppose Walters bad assigned tbe policy to Arkansas Hogan to secure a debt, could she have claimed the proceeds? Certainly not. Then can she claim any more by the reason he declares her to be his wife when she was not?

Suppose Lewis Walters had forged a check on the government and collected it. Certainly this would not estop the administrator in this case from a recovery.

Suppose again he had aided in any other manner some three persons to defraud the government. This again would not estop the plaintiff on the facts of this ease from recovering.

It is unfortunate, though true, that the government was induced by the false representations that Arkansas Hogan was his wife into paying the money to her, but this does not defeat the right of Maggie Walters to this policy of insurance. The proceeds of this policy on the life of Walters had never been paid to Lewis Walters, nor could it have been paid to him under the law, and, if under the law these proceeds belong to Maggie Walters, the wrongful act of Lewis Walters should not deprive her of it.

Suppose Lewis Walters, instead of making the policy payable to Arkansas Hogan, had made it payable to any other person who had no right under the law to be made a beneficiary. That could not affect the rights of Maggie Walters to the proceeds of the insurance policy.

Where a bank pays a forged check, they must show that the person who is entitled to the proceeds has been guilty of some wrong in order to defeat recovery.

Could the proceeds of this policy have been subjected to the payment of Lewis Walters’ debts?

This case is controlled by Alabama law and this identical question of whether or not the money could be used in payment of his debts has been decided by the Supreme Court of Alabama in Perrydore v. Hester, 215 Ala. 268, 110 So. 403. In this case the court says on page 269 of 215 Ala., 110 So. 403, 404:

“If the fund here involved is subject to the terms of the original act, we think it clear that upon the death of S. W. Hester, father of the insured and designated beneficiary, prior to the death of the insured, Robert L. Hester, no other beneficiary having been named, the insurance, upon the death of the insured, became payable to his widow and only child, and is not subject to the claims of creditors of the estate of the insured.

“The positive provisions against assignment, against liability for debt, and for change of beneficiary at will, forbid any valid claim based upon a pledge or agreement that the insurance should stand as security for an indebtedness growing out of loans or advances from S. W. Hester to Robert L. Hester during the lifetime of the former, and while he was the designated beneficiary of the insurance.”

On page 270 of 215 Ala., 110 So. 403, 405, it is said: “An- analogy is presented under our law in ease of damages awarded to an administrator in actions for death by wrongful act. He is a mere trustee or conduit to receive and pass on the funds to those entitled free from the debts of the decedent.”

It has been frequently said that, where one of two innocent persons must suffer, the one whose negligence caused the loss must bear it. In this ease the loss has not been caused by negligence of either of the parties to this suit. If the money was received by the administrator to be administered as general assets of the estate, I concede that the plaintiff would be estopped, but this is not the ease, for, just as .shown, this money is not liable for any debts of Lewis' Walters, but is to be given by the administrator to the spouse of Lewis Walters, and he could have only one spouse under the Alabama law, and that is Maggie Walters.

For these reasons I think the conclusion reached in the Sehiefer Case was erroneous, and therefore decline to follow it.

Under the facts in this case it is just the same as if Walters, the deceased soldier, failed to make any designation of a beneficiary, for the one he made was not entitled to recover because she was so named. Therefore, under the law, the payment is to be made to the administrator and to be distributed under the laws of Alabama, and the case of Perrydore, supra, declares the law of Alabama on this state of facts.

I therefore find the plaintiff is entitled to recover.  