# Statement as to Jurisdictional — Wissner v. Wissner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0230%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Statement as to Jurisdictional - **Published:** January 1, 1950 - **Citation:** 338 U.S. 655 ## Text EA hela Stet . Pa ° ’ \ o a o ‘ a » e 3 4 F 4, ° > ’: ° _, sy ° ‘ , Wee ” 4 e ° ¥F o INDEX Supsect Inpex | ; Page Statement as to Jurisdiction ; pee a | Statement of the case ‘ / 1 Opinion below i} . Statutory provision sustaining jurisdietion 3 Statutes involved ! 4 Date of Judgment and application for appeal 5 Cases believed to sustain jurisdiction wees Raising the federal questions (i Grounds upow which it is contended the qpes tions involved are substantial 10 Appendix A—Opinion of Distriet Court of Appeal of tiie State of ¢ ‘alifornia, Third Appellate. District, 89 A.C.A. 857, 201 Pac. 2d 837 . 44 Appendix B--Memorandum Ruling, Daisy Edda Johnson vy. Ada Shelton, No, 522648 (Sup. Court, County of Los Angeles). Not a companion case 26 Appendix C-—Findings of Fact and Conclusions of ~ Law. James v. United: States, No. 6063-BH . (Southern District of California). Not a com. panion case | . 3u 9 Tasur or Cases Crrep - Anderson v. Carkins, 135 U.S. 483, 485-486 Barton v. United States, et al., No. 5527-WM (8. D. Cal.) 75 Fed. a aga 708 an, 12 Bennett, Cora Belle ‘Benne tt, Modesta Lee, No. BOB386 (Sup.Ct. Co. a Lax Angeles) °3n Bradley v. United States, (C.CLA. 10) 143 Fed. a4 ee RRS 11 Carballo v. NcPina, No. 43410 (Sup. Ct. C o. of Los Angeles) : - 8a Cassareéllo v. United States, (C.C.A. 3) 279 Fed. 3962, 398 11 Clearfield Trust Co. v. United States, 318 U. 8. 363, 366 3, 11 —3415 : 7 id INDEX ; 0 Page Culp v Ww ebster, 25 Cal. App. Supp. 2d 759, 70 Pae. ad 373... 12 Dodart, Amy Jean v. United. States, et al. No. R201- WM (S.D. Cal.) ices Erie Railroad Co. ¥. Tompkins, 304 U.S. 64. Dieta a Be ? oe : 11 Flournoy v. Weimer, 8321 UL S. 253, “e 35 Garrett v. Moore-McCormack, 317 U.S. 239, 245. = q Green Bay Canal Co, vy, Patten Paper ¢C o., 172 U. oS, 66 D Hayek v. Hayek and the United States of America, No, 7400-W (S.D. Cal.) on, 12 James Vv. United Stat®s, et al., No. 6061-BH (S.D. | Cal.) on, 12 Joknson y. Shelton, No. 522, 648 (Sup. Ct. Co. of Los . Angeles) on, 12 Lawrence v. Shaw, 300 US 7% 11 Lewis v. United States, (c C. . 3) 06 Fed. 2d, 563, «6G 11 Logan County National Bank v. Townsend, 139 U, 67, 72 | i) Lynch vy. United States, 292 U. 8. 571, 577-579 11 McGuire v. Massachusetts, 3 Wall. 382, 385 5 Maddox v. » Elliot, 248 Ala. 271, 27 So. 2d 408, 499 im Missouri,ete. R. Co. v. Haber, 169 ULS. 613, 621-622 D Murphy v. United States (Dist. Ct. D. Mass.), 5 Fed. Supp. 583, 584 , 12 Nobles v. Cannell, No. WRT Sup. Ct. Co. of Los | Angeles on, 12 Pack, Angel L. v. United States and L ily Pack, — 7651-BH (S.D. of Cal.) 3n, 12 Pfudentiabins. Co. v. Cheek, 259 U.S. 530.2 : ° Rhodes v. United States of America, - al., No. S84 »-B (S.D. Cal.) 3n, 12 Robe rtson Vv. McSpadden, (Dist. Ct. E.D. Ark. N.D.) 46 Fed. “d 702 7 1] Sizemore v. Stzemore’s Guardian, et al., 222 Ky. 713, 2 S.W. 2d 395, 396-7. > 11 - Sutton’s Ex’rv. Barr's Adm’'r, 219 Ky. 543, 293 S.W. eee ees, 12 INDEX Hae iii . Page Tennessee v. Davis, WOOL S, 257, 262-264 i Taledo ete. Raidroad Co, vx. ‘Slavi mm, ab U.S. 454, 457 5 Tomiins vo Tomkins, 182 NM. 72 38 Ath 2d 890. 11 Uneted States vo County of Alle Bs ny, 322 U.S. 1743, TS3 11 United States v. Emory, 314 U.S. 423, 426-27 hil United States v. Fuller, (CC.A, My OF Ped. 2d 5415 ii United States v. Ste rlhng, (C.CLA. 2) 12 Fed. ad Y21, ppd ” ; 1} United States vo Williams, 302 U.S. 46 11 Washburn v. United States, (Dist. ot D. Mo.) 63 Fed. Supp. 2245, 227 12 We hite Vv. Untitled Stafes, 270 US, 175 10 Wissner x. Wisener, SO ALCLA, 857, 201 Pae. 2d 837, Opinion of District Court of Appeal of the State of California, Third: Appellate Dist. 6, 7,8, 9- Woodward v. United States, (C-C.A. 8) 167 Fed. 2d 7740, 778 . 11 STATUTES Cirep Civil Code of California: Section l6la 4 Section 162 4 Section 163 4 Section 164 4 Constitution of California: Article 6, Sees. 4, 4a, 4b, 4e 5 Constitution of the United States: Arti¢le I, Section § 7, 8, 19, 22 Article VI, Paragraph 2 7,8, 19, 22 Fifth Amendment 8, 19, 22 Fourteenth Amendment 8, 22 Section 3, 49 Statute 609, 38 ULS.C_A. Section 454a, - Act of August 12, 1935, Chapter 510 4 United States Code, Title 28, Section 1257 (1), (2), ‘ms 3 oe em ‘ y ‘ ~e z . “aite* w b > e% PP o 0 up to the death of Leonard 0. Wissner werg husband: and wife and at all times subsequent to the. marriage ‘and until - ‘bis death were residents of and domiciled in the’ State of California (R. 14). : : . While Dr. Wissner was serving in the army, he applied for and there was issued to him a National Service Life Insurance policy No. 14N8656931 (R. 3, 10), the premiums of which were paid by Dr, Wissner from his army pay (R. 10,17). He designated his mother, Louise M. Wissner, as principal beneficiary of the policy and his father, Leandous: H, Wissner, as contingent beneficiary (R. 17). The policy was in full force and effect at the time of the Doctor's death (R. 30) and since that time the Doctor's mother, appel- lant, Louise M. Wissner, has rece rived funds amounting to $76.70 for each month (R. 18). : Appellee claims to be entitled to one-half of this pay- ment gs received each month undgr the community. prop. erty laws of the State of California] The state courts found in favor of appellee’s claim and refused to apply the pro- visions of the federal statutes which control the rights in the proceeds of National Service Jiife Insurance (R. 19). The matter is ‘of great importafice to the residents of the eleven community property statéssince, as the court will take judicial notice, millions of govetyment life insurance policies were issued to members of. theJarmed forces in the first and second: world wars and a majority of the men taking out these policies are now or will be married and many may desire to designate someone other than their wife as beneficiary of their insurance. The decision of the court below nullifies the clear intent of one soldier in this regard and thereby seriously cireumscribés the value of government life insurance to many present and pros. pective owners. . 3 To counsels’ knowledge ten cases' involving this question have been filed.in, the County of Los Angeles alone, and if the decision of the court below is correct, there will be _ hundreds of new cases filed because the United States is paying money every day to the designated beneficiaries of | these insurance policies and ignoring the claimed rights of widows in one-haif the payments as community property. Opinion Below The Superior Court rendered no opinion; its findings of. fact, conclusions of law and judgment are at (R. pp. 27-38). The opinion of the Distriet Court of Appeal (Ap. aaa A) filed January 21, 1949, is reported in 89 A. Ce A.. 857, 201° Pacific 2d 837, The Appellate Court de nied re ty hearing without opinion (R. 36). The Supreme Court of California denied a hearing without opjaton, (R. 37). " Statutory Provisions Sustaining J urisdiction The statutory provisions believed to sustain’ the juria\ diction of this court are Title 28, U. 8.-€ ‘ode, Section 1257 (1) and (2) and under the authority of Prudential Ins. C 0. v. Cheek, 259 U. 8. 530, 547, and Flournoy vy. Weiner, 321 U.S. 253, 263, the right to a review of the judgment of ~ lower. court by writ of certiorari under: Title ao, U. Code, Section 1257 (3) is also presented herein. a ~~ ‘James v. United States, et al., No. 6061-BH (8. D. Cal.}, Horton vy. United States, et al., No. 5527-WM (8. D. Cal.) 75 Fed. Supp. 763. Rhodes v. United States of America, et al., No, 5845-B (8S. D. Cal); Hayek Vv. Hayek and the United States of America, No. 7400-W (S. D. Cal.): Angel L. Pack ¥. United States of America and Lilly Pack, No. 7651-BHI (S. D. Cal.) Appealed to the Ninth Cireuit; Nobles ¥. Cannell, No. 502587, Supenor Court in and for the County and City of Los Angeles; Johnson ¥. Shelton, No. 522648, Superior Court in and for the County and City of Los Angeles; Carbalio v. McFann, No, 543410, Superior Court in and for the County and City of Los Angeles; Cora Belle Bemartt v. Modesta Lee Bennett, No. 503386, Superior Court in and for the County and City of Los Angeles; Amy Jean Dodart vy. United States, et al., 8201-WM (S. D. Cal). 4 _ Statutes Involved The federal statute, the provisions of which were held inapplicable and void is Section 3, 49 Statute 609, 38 U. S. C. & Section 454a, Act of August 12, 1935, Chapter 510; ‘*Payments of benefits due or to become due shall not be assignable, and such paymelts made to, or on ‘account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachmeni, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary * * * "' (Italics ours.) ° The provisions of the state statute which the court applied and which appellants claim are inapplicable to the’case and void as applied by the lower court to the property involved are Civil Code of California, Seétions 162, 163; 164, 161a. Section 162. ‘‘ All property of the wife, owned by her, before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and _ profits thereof, is her separate property. The wife may, without the consent of her husband, convey her separate property.’’ Section 163. ‘All property owned by the husband before ge gy a that acquired afterwards by gift, bequest, devise, r descent, with the rents, issues, and profits thereof, is his separate property." Section 164. ‘‘All other property acquired after marriage by either husband or wife, or both, including _real property situated inAhis State and personal prop- erty wherever situated, heretofore or hereafter acquired while domiciled elsewhere, which would not have been the separate property of-either if acquired while domiciled i in this State, is gommunity property; * * °"’ and wife in community property tone continuance of the marriage relation are present, existing and equal 5 interest under the management and control of the hus- band as is provided in sections 172 and l72a of the Civil Code. This section shall be construed as defining the respective interests and rights of husband and wif e in the community property.”’ ° Date of Judgment and Application for Appeal The decision and judgment of the District Court of Appeal - were filed Jannary 21, 1949 (R. 23). A petition for rehear- ing was denied February 11, 1949 (R. 36). The District Court of Ajveal is the highest court of the State in which decision could be had unless a hearing were granted by the Supreme Court of California at its disere. tion (Constitution of California, Article VI, Sees. 4, da, 4b, 4c). A hearing was denied March 21, 1949 (R. 37). The application for appeal was presented May 16, 1949. Cases Believed to Sustain Jurisdiction of this Court | Cases believed to sustain the jurisdiction of this court are: Logan County National Bank v. Townsend, 19 U. s. 67, 72; Toledo ete. Railroad Company v. Slari am, : 236 U.S. 454, | 457; Green Bay Canal Co. v. Patten Paper Co., 172 U. S. _ 58, 66; ; "Missouri etc. R. Co. v. Haber, 169 U. S. 613, 621-622; McGuire v. Massachusetts, 3 Wall. 382, 385; Garrett v. Moore-McCormack, 317 U. 8. 239, 245-246: Flournoy v. Weiner, 321 U. 8. 253, 263; Anderson v. Carkins, 135 U. S. 483, 485, 486; Clearfield Trust Co. v. United States, 318 U.S. 363, 366: United States v. Emory, 3140.8 . 423, 426-427 6 Raising the Federal Questions Appellants -raised the federal questions in their answer as “(R. 18) pressed theny throughout the case, argued them in all briefs on appeal? and the federal questions were expressly passed on by the District Court of Appeal of the State of California Third Appellate District (Appendix A pages 14-26 herein) (R. 70-84). : : The Appellate Court in its opinion summarizes appel- _ lants’ contentions made in their briefs and argument. on appeal as follows: | | 3 a ‘Appellants contend, however, that: rights to the " proceeds of a National Service Life Insurance policy | must be determined solely by federal statutes. They cite section 802 (g¢) of Title 38 U.S. C. A. which pro- vides, regarding such policies: ‘The insurance shall be payable only to a widow, widower, child (including a stepchild or an illegitimate child if designated as bene- ficiary by the insured); parent {including person in loco parentis. if ‘Aeddataind as beneficiary by the in- sured), brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within. the classes herein provided, and shalk, subject to regula- tions, at all times havé the right to change the benefici- ary or beneficiaries of such insurance without the con-_ sent of such beneficiary or beneficiaries but only within the classes herein provided.’ __ oe “They particularly rely upon section 454a of the World War Veterans’ Relief Act, Title 38 U.S. C. A., which provides in part: ‘Payments of benefits due or to become due shall aot be assignable, and such pay- ments made to, or on account of, a beneficiary under — any of the laws relating to veterans shall be exempt from taxation, shall -be exempt from the claims of creditors, and shall not be liable to attachment, levy, or “2 Under the California practice, an appeal is taken merely by notice {R. 40) and ‘there is no assignment of errors. The questions presented on appeal are stated only in the briefs, “ ‘ seizure by or under any legal or equitable process. whatever, either before or after receipt by the bene- ficiary.’ (Italics added. ) ‘And théy assert that Congress by the foregoing c enactment not only-intended to control the proceeds of such policies after they were paid to them, but that its power ‘to do so is found in the provisions of the United States Constitution, art. I, 4 8, granting to Con- _ Ress | the power to ‘provide for the common |\Defense and general Welfare of the United States,’ to ‘rhi support Armies,’ to.‘provide and maintain) a } make rules and regulations for the governmpn regulation of the land and naval forces, and to make all laws which shall be necessary and proper for carry- ing inte execution the foregoing powers. They also rely upon art. VI, paragraph 2, of that Constitution providing that such ( lonstitetion and the laws: of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and the judges i in every state shall be bound thereby, anything in the constitution and laws of any state to the contrary not. withstanding’’ (Appendix A, pp. 18-19) (R. 75. 76).. The court below affirmed the judgment of the lower court ; awarding one-half of the proceeds of the National Seryice . Life Insurance policy to appellee in these words: ° ‘In the case before us the judgment was entered. against the beneficiaries for one-half of the payments on the policy which they had already received, and they were ordered to pay to plaintiff one-half of proceeds received by them. Such judgment is fully in aceord with the judgments in the Cooke case and other cases above cited, and cannot be said to infringe upon any rights or powers of the United States under the pro- visions of the United States Constitution relied upon by appellants’’ (Appendix A, p. 22) (R. 86). ‘The court stated that the question to be decided. on appeal was: “The question before us, then, is ‘did Congress intend, by section 454a, supra, to provide that the 8 ~ proceeds of a National Service Insurance policy, after and payment of sqine to a named beneficiary, are not sub- ject to the laws of a state governing title to property within that state, and, if it did so intend, had it the power under the Constitution to so provide, and thus divest a wife in California of property rights which under the laws of this state are community property in which such wife has a vested interest’’ (Appendix A., pp. 19-20) (R. 77). in deciding the question said as follows: . ‘Reasoning from the foregoing cases, the conclusion ; seems to follow that, in view of the Fifth Amendment, _ the federal government had no power to provide, as it is contended it did in section 454a, swpra, that pay- ments made to a beneficiary of a NationaWBervice Life Insurance policy shall be exempt from the clims of the widow of the deceased insured to the right wested in her under the laws of this state to one-half of such pay- ments after their receipt by the beneficiary" (Appendix A, p. 22) (R. 79). (First italics ours.) oe and continued as follows: **As hereinbefore stated, appellants rely upon art. VI, paragraph 2, and art. I, see. 8, of the United States Constitution. But no cognizance is taken of the Fifth. Amendment, which limits the power of the Federal yov- ernment as the Fourteenth Amendment limits those of the states, and prohibits the taking of private prop- erty without due process of law. It therefore seems to follow that if,.as decided in Cooke tv. Cooke, supra, a surviving wife of a decedent who had paid for an insur- ance policy out of community funds ebuld not be de- prived of her vested interest in the proceeds of such policy without violating the provisions of the Four- teenth Amendment, the Federal government could not deprive a wife of the deceased veteran of her vested right to one-half of the proceeds of a National Service Life Insurance policy paid for out of community funds, at least after such funds had come into the possession of “ag a nained beneficiary other than the wife, without violat ‘ing. the Fifth Amendment*t (Appendix A, po 22) CR. (TESO) | 3 and the court belaw expressly disagreed with the decision of a Federal Digtrict Court in this Hate which had held that. the Federal statutes. relied upon by the appellants con. trolled the rights in the proceeds of a National Service Life Insurance policy and that the California community prop- erty laws were not applicable and in disagreeing with the Federal Court said :- | \ “appellants cite numerous cases which, they contend, sustain their position; but, with one exception, none of them: involved divestiture of vested rights in com. munity property. Assuming, but not deciding, the vorrectness of such decisions, they do not determine the issues in thix case, nor is it necessary herein to determine to what extent the Congress could, under its limited powers, exercise control over the proceeds of National Service Life Insurance policies prior to their receipt by the beneficiaries. The exception above mentioned is Barton rv. United States, D.C. 75 F. Supp. 703, in which a widow of a deceased veteran applied to the Administrator of Veterans’ Affairs to pay to her a one-half interest in the portion of. the proceeds of an insurance policy which had resulted from the payment of premiums out of community funds of the spouses. The claim was disallowed and pay- ments were made to the named beneficiary, decedent *s mother. It may he conceded without affecting the con. clusion in the ease before us, that the Administrator properly so acted pursuant to the terms of the poliey, which was a contract between the United States and the insured, and that the trial court properly concurred inchis decision. The Barton decision is not. of course, conclusive upon this court; and we think Jt j clearly distinguishable in so far as the necessities of that case were determined. But if, as some of the language of the opinion indicates, that court decides) hat because 10. of the provisions of section 454a, supra, the Congress intended to and did attempt. to provide that where premiums on a National Service Life Insurance policy are paid for out of the community property, in which, : under the laws of California, a wife has a vested inter-_ est, it must follow that the widow of decedent may be divested of her comniunity property right by the action ‘of the husband in using such funds for payment of premiums on such insurance without her knowledge or conseni, and by naming another than the wife as bene- ficiary deprive the surviving widow of her vested rights and render it impossible for her to.enforce her rights _ against the beneficiaries after their receipt of the pro _ceeds of the policy, then we must respectfully disagree with the Barton case’? (Appendix A, pp. 24-25) (R. » $2-83). ee Grounds Upon Which It Is Contenjed the Questions Involved Are Substantial | The result of the decision of the court below is to take one-half of the proceeds of a National Service Life Insur- ance policy, paid and to be paid, to the parents of the de- _ ceased soldier as he intended them to be paid and to deliver . them to his widow with whom he was estranged. The result is reached by applying the state statutes to the determina- | tion of the controversy and refusing to apply the federal statutes which created the insurance and which provide: ‘*Payments of benefits due or.to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relat- ing to veterans shall be exempt from taxation, shal] be exempt from the claims of creditors, and shall not be liable to attachment, levy or seizure by or under any. legal or equitable process whatever, either before or after receipt by the beneficiary * * *,7" {a) The court below is in direct conflict with basic principles of law followed by this Court in: ee White v. United States, 270 U.S. 175: 1] Lynch v. United States. tS U.S. 57, DEE OTE; — U wated States v. County of Ald gheny, 322 U.S. 174, ee | ee ae ae Clearfield Trust Co. v. United States, 318 U.S, 36.5, Lawrence v. Shaw, 300 U.S. 240; United States v. Williams, 302 U.S. 46; | Evie Railroad C ompany v. Tompkins, 304 U.S. 64 dicta 78, 79; United States v. Emory. 314 U.S, 423; Tennessee vy. Davis, 100 US. seh 262-264. (b) It is also in direct conflict with eases in other juris- dictions construing this act. ‘The following among many others involving government insurance have applied the rules contained in the federal statutes to dete riiine the rights of the parties rather than the conflicting state rules. So far as we are informed, no re stich ge agrees with the court below: Ta United States n. Sterling (C. C. A. 2), 12 Fed. 2d 921, 922 ;. : 2 eg Woodward ». United States (C. CoA. 8), 167 Fed. 2d 774, 778; eee ee ie ~ Cassarello vy. Wnited States.(C, C. A. 3), 279 Fed. 396, 398 ; 4 United States v, Fuller (CC. A. 5), 97 Fed. 2d O41; Lewis v. United States (C. C. A. 3}, 56 Fed. 2d. 563, ‘564; : Bradley \Knited States (C.C. A. 10), 143 Fed, 24.573: Robertson ¥. McSpadden oka Ct. E. D. Ark. N. D.), 46 Fed. 2d 702: | | Tomkins v. Tomkins, 132 N. J. L. 217, 38 Atl 2d son; | Sizemore ¥. Sizemore's Ciuardian. ef al.. 222 LY. 713, 2S. W. 2d 395, 396-7; Maddor vy. Ellict, 248 Ala. 271, 2 27 So. 24 498, 499. ‘statutory rules rather than the conflicting state rules, 12. o Murphy v. Pnited States, (Dist. Ct. D. Mass.) 5 she’ Sapp. S83, S84; Washiturn v. United States, (Dist € t. W. D. Mo.) 63 Bed. Supp. set, 221 ; Suttons’ Ex'r vy. Barr's Adm’, 219 Ky. 543, 293 S. LW. 1OG4, « ‘ (e) The decision of, the court below is also in direct con- fet with cases in California which have applied the federal ° . “Phe section of the statute involved in the ease at bar was a consider ed binding and followed in Culp v. Webaste no 5 Cal. ATR App. upp. 2d 7 tal ZO Pacifie 2d vi 3. The decision of the court below is in direct contliet with eases arising in the State of California involvi ng. commiunity 6 property; Barton v. U. S., 75 Fed. Supp 703—the decision with whieh the eourt be lows respectfally disagrees, Johnson \. Sh Tton Na. 922648, Superior Court in and for the County and City of Los. Angeles, Memorandam Ruling printed herein, .f Appendix B, pp. 26-30) a decision expressly «is- agree ime with the court heliw, Jatnes.v, US. , No. 6061-BH, Southern District of Ca fornia, an unreported case, Find- ings of Fact and ConeVisions of Law printed herein, (Ap. - pendix C, pp. 30-34) “Rhodes v. United States, et al., No. ‘OS45-B, Southern District of California; Hayek v. Hayek _. and United States, No, 7400-W, Southern District of Cali- “fornia; Angel L. Pack +l ‘niled States and Lally Pack, No. Sg = eee Se THOACBH, Southern District of California appealed to the U nitesd States Court of Appeals for the Ninth Cireuit' and hearing there had on April 20, 1949. Nobles v. Connell, No, 02587, in Which the Superior Court for the County and (tty of Los Angeles made among others the following . ° ‘ ; . aa xe ‘ : “the cymmunity property laws of the State of Cali. \ forma confer yo rights on plaintiff toshare in the pro- PON _ Rea Be oa a e s ceeds of the poliey involved in this detion since it was, the purpose of the Congress of the United Stes to provide in all detatis fer the Issaane tion and svttloment of National Serv ice Life on a National basis, and state laws or their ‘edwinis \ tration may not interfere with the carrying out of a National purpose."’ :* anil arterniniat rn. SO Cere SOS Ae eeeee rn 8 ee ay Conclusion >» We reapectfully submit that this Court haa jurisdiction of the appeal. | Dated: May 16, 1949, Respectfully sabyaitted, W. Corstrs Coon, Vernon FY. Gaw ca) ¢ \ Cantos J. Banger, , Counsel for Appellants, . — e 14 at APPENDIX A IN THE DISTRICT COURT OF APPEAL OF THE STATE OF CALIFORNIA IN AND FOR THE THIRD APPELLATE DISTRICT (Stanislaus) Civ. No. 1028 « . Sae. No. UGG Mancarer V. Wisswer, Plaintiff and Respondent, Us. ete Lovisk M. Wissnea and Lraxpous H. Wissner, Defendants , and Appellants | Filed: Jan. 21, 1949 ~~ "Plaintiff, respondent before this court, brought this action against Louise and Leandous Wissuer, the parents of ‘plaintiff's deceased husband, Leonard O. Wissner. The couiplaint alleged that plaintiff and said decedent were niarried in California in 1930; that at the fime of said mar- riage decedent had no property and that all property which he thereafter acquired was community property acquired by the joint efforts of the spouses; that Leonard died testate on November 14, 1945, leaving plaintiff as his surviving widow; that during the marriage the husband Leonard made transfers of comniunity property to defendants, consisting of money, stocks, bonds and an automobile, without -plain- tiff’s knowledge or consent and without consideration, and as a result plaintiff was defrauded of her community in- terest in such transferred assets; and that defendants re- fused to account to plaintiff for such assets and claimed to be the owners thereof, though they were without right, title or interest therein or thereto. : . In a second count plaintiff alleged that decedent had. served in the army for several years prior to his death, and had taken out a National Service Life Insurance Policy in the sum of $10,000.00; that he had paid the premiums thereon from his salary, which was community property, byt had, without plaintiff's knowledge or consent, made his v 15 mother principal beneficiary and his father contingent bene ficiary. thereof; and that since the death of plaintiff's said husband defendants had received from the proceeds of said policy $882.05, but refused on demand to pay to plaintiff any portion thereof. ; A third cause of action was stated, but it is not involved in this appeal. As an answer to plaintiff's first cause of action defend. ants set up that moneys which decedent bad paid over to thern had been patd te them to satisfy a debt of decedent to them for aid and assistance which they had given him during his attendance at medical school. Ax for the second cause of action, they conceded that premiums on the life insurance policy had been paid with community funds, but” alleged that the proceeds of such policy were payable to them alone by virtde of the’ federal statutes governing the issuance of such policies, and that such statutes alone con trolled, and prohibited plaintiff from claiming any interest therein. After trial of the issues findings were made in favor of plaintiff on the first and second causes of action; and from the judgment which followed defendants have appealed, raising two issues, the first, whether the evidence supperts the finding that the transfers-to defendants were without consideration; and, second, whether the community prop- erty law of California gives plaintiff a right to any part of the proceeds of the life insurance policy. We are satisfied that there is sufficient evidence to sup port the conclusion of the trial court on the first count. Defendants admitted that during his service in the army, decedent, who was first a captain and then a major, had paid to them approximatety $3000 in cash, and that hé trans. ferred to them an automobile which had been purchased in 1939. The moneys turned over were deposited in. a joint bank account io the names of defendants and decedent, upon which both decedent and defendant Louise Wissner drew checks. After Leonard's death the defendants with: drew the balance remaining in the account. ‘The automobile pink slip was received by defendants from their son in the fall of 1943, and they sold the automobile after bis death for * $1080.00. | | > the aut 16 In a letter written by Leonard from India on October 22, 144, beginning ‘*Dear Folks All" which letter was de- livered tou the Bank ef America, Modesto, by defendants, he stated that he had already sent a check for $30.00 and’ ' was one losing another for $00.01. He then added: ‘'] want a bank account, probably commercial, to be held jointly by you folks and by me-4 want ~~ alletments to be deposited in it. [ want-a reserve of $250 to $500 to be allowed to accumulate and the bonds to be purchased as | previously instructed them, and turned over to you for safekeeping. I want a routine accounting sent to you and. referred to me as you think best or necessary. 1 wouldlike to have a check book sent me in case of need.” P lease make this all very clear to the bank. Present this letter if necessary."’, The evidence shows that the joint account between the defend. ants and their son was opened November 10, 1944; with an initial deposit of $337.50. Thereafter 12 deposits of like amounts were inade through allottinents by decedent direetly to. the bank, and there were others. Decedent from time to time drew upon the account and once his mother drew $500 and sent it te him. After Leonard's death she with- ‘drew the balance and deposited it-in defendants’ own account with the American Trost Company. The Bank of America account was then closed. Mrs. on testified that $2906.27 and thes money for bile was all defendants received. She stated that prior to the time this account was opened the bank had been buying bonds’ for decedent out of funds sent it by Leonard, which bonds were in the names of decedent and one Naomi Beiler; that the bank had mailed the bonds to defendants who had put them in a safe deposit box, and after Leonard’s death, had turned them over to the attorney for his estate. Plaintiff testified that she aad Leonard were married in 1930, before the lattet had completed his medical train- ing. She was a hurse, and contigued to practice her pro- fession, her earnings being put into a joint account with her hushand, which account continued until November, 1944, at which time Leonard withdrew alt of the balance. i Regarding the automobile turned over to defendants, she: ry o fe 43 3 3 rg Zé f stated that she finished payments thereon after her hus; , 7 RENEE eee eee band went into the service. For six months after be went ‘into the service plaintiff! received an allotment ef $90 per month, then it was discontinued. Lloyd Wissner, brother of Leonard, te tified regarding —detters which he received from Leonard, One, dated Septens- ber 26, 1943, requested Lloyd to get the dector's instru. ments and equipment moved ‘before M. receiver the notice that I have stopped ber allotment." In anothef dated January 7, 1943, he stated- that he wished his attorney could get an insurance policy away from plaintiff. In one dated September 14, 143, Leonard mentioned ** Naomi," and stated that he wished he could find some way. of forcing plaintiff to a settlement and a divorce. Another dated August 24, 143. referred to efforts to get the pink slip for the ‘automobile away from plaintiff and or ea to exeruing pressure upon ber. In another dated August 14, 1943, be stated he stopped the allotment to Margaret to force her to come to toxms, Also he stated that he was. enclosing the pink sliyy tothe automobile, saying, ** Possibly it woyld be best te have it transferred to you and then no one could touch it."? On Jane 19, 1945, he referred to the automobile, stating Lilevd vould continue to use it, ‘Sat any rate for the time being’ : and in another dated July 21, 1945, decedent again expressed his wishes reyarding the car. Mrs. Louise Wissner testified regarding moneys sent to Leonard while he was in Medical sehool in 1927 and 1929, but she was unable to state the amount thereof, She also introduced letters from:Leonard sent while still.in training, | expressing thanks for money received, and making varue statements such as, ‘‘Maybe some day we ean make things right.’’ At the time the bank aceonnt was directed to be opened in 1944 it was directed that the parents continue the: purchase of bonds; hut that was not done, The testimony of defendant Leandous Wissner was indefi. ‘nite and vague, both as to moneys sent te Leonard while at school, the amount thereof, and any promises to repay ; and there is no evidence that any statement was ever xent him, or any payments made by himon account of same. From the evidence in the case and the inferences de-. ducible therefrom, the trial court’s findings in favor of plaintiff are fully justified. Evidence and presumptions é ~ oe contra merely created a conflict which that court was au- thorized to resolve; and with its conclusions this court may ~not interfere. Furthermore, we think it is apparent that the transfers made to defendants were not made with an intent to repay them for moneys expended for his medical education, but were made in order to prevent his wife from receiving them, atid to force her into a divorce and settle- ment to further plans which decedent was making, for his future from which she was to be excluded. Regarding the right of plaintiff to recover from defend- ants a portion of the proceeds of the life insurance policy, it is not denied that premiums paid by decedent were paid from community funds; and that plaintiff had a vested interest in one- half of such community property cannot be gainsaid. (Civ. Code, sec. 16la.) In Mazman v. Brown, 12 Cal. App. 2d 272, 273, it was held that where insurance on a husband's life was bought and paid for with community funds, the hushand could give away no more than one-half. of the proceeds without the written consent of the wife. | Numerous authorities x0 holding were there cited. Also see Grimm rv. Grimm, 26 Cal. 2d 173, 175. From those decisions it is obvions that had the policy been issued by a private insurance company, no question of plaintiff's right to one-half of the proceeds could arise. - Appellants contend, however, that rights to the sreckeds of a National Service Life Insurance Policy must- be de- termined solely by federal statutes. They cite section 802( g) of Title 38 U. S. C. A. which provides, regarding such pol- icit.s: ? ‘The insurance shall be payable only to a widow, widower, child (including a stepchild or an illegitimate - child if designated as beneficiary by the insured), par- ent (including person in loco parentis if designated as beneficiary by the insured), brother: or sister_of the “insured. The insured shall have the right to designate the beneficiary or beneficiaries of the ihsurance, but - only within the classes herein provided, and shall, sub- . ject to regulations, at all times have the right to change the beneficiary or beneficiaries of such insurance without the consent of such beneficiary or beneficiaries but only within the classes herein provided. 19 - They particularly rely upon section 454a of the World — War Veterans’ Relief Act, Title 38 U. S. C. A., which pro- vides in part: “Payments of benefits due or to become due shall not be assignable, and such paymbnts made te, or on accotnt of, a beneficiary under any of the laws relat. ing to veterans shall be exer! from taxation, shall - be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whats; er, either before or after receipt by the beneficiary.” (Italics added. ) And they assert that Congress thy, tho foregoing ennct- ment not only intended to control the proceeds of such policies after they were paid to them, but that its power to do so is found in the prov isions of the United States Constitution, art. I, 48 granting to Congre as‘the power to ‘*provide for the common defense and general welfare of the United States,’’ to ‘‘raise and support armies,"* to ‘*provide and maintain a Navy,"’ to make rules and regu. lations for the government and regulatiow of the land and . naval forces, and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. They also rely upen Art. VI, paragraph 2, of that” Constitution providing that such Constitution and the laws of the United: States which shall be —— in pursuance thereof, shall he the supreme law of the land) and the judges in every state shall be bound thereby, anythibg i in the con- stitution and° laws of any state to the contrary’ notwith- standing. : However, the fariaeiie dentaiations are ‘all subject to the limitations imposed by the Tenth Amehdment, to, wit, that the powers of the Federal government] are only such as are delegated and all other powers, except such as are specifically denied to the states, repo.e in, the states and not in the Féderal government; and the Fift Amendment, providing-that the Congress shall not deprive any person of life, liberty or property. without due process-oftaw tor take his property for publi¢ use withont juat compensation, The question before us, then, is did Congress intend, by section 454a, supra, to provide that the proceeds of a a é ee eee That the right to name or change the beneficiary thus conferred by federal statute is not subject to and cannot be affected, modified or controlled by any state community property laws, Vv That the disposition of the proceeds or benefits of any contracts of insurance issued pursuant to the provisions of the National Service Life Insurance Act of 1940, as'amended, is not subject to and cannot be controlled or governed by the community property laws of any state. a VI That under the Community Property Laws of the State of Texas, where there is no intention on the part of the. x if SS Carte 34 hushand to defraud a wife, the proceeds of a policy on the — life of the husband vested in the beneficiary named in the policy upen the death of the insured husband even though the policy was taken out during coverture, by the hushand, ‘and the premiums were paid out of community funds. VU That the plaintift is not entitled to any relief either as prayed for in the Complaint or as shown by the facts proven. bets Vill That neither the plaintiff's Complaint ner the facts proven state er prove a claim against any of the defend ants herein upon which relief can be granted. RES i ae - That the plaintiff has no right or claim in or to either of the insurance policies sued on herein or ‘un or to any of the proceeds thereof, sav: e and except asthe samemay tere 265 after accrue to her as-the contingent beneficiary where so named, : ) 7 . ° @ 4- . . . Dated: June 16th, 1947. | {S.] Ben Harrison, United States District Judae. (3415) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0230%3A02. Public record. Not legal advice.