Opposition Brief — French v. French

SUBJECT INDEX.

PAGE

ie TR I i hace ich sddchasangdcvdnivaedeunes 1

i. EE SNE ole dbebbde ke sbboseaeeunn 2

Se ee os ccc rsuaeesdweveneces 3

eT I oo hc cks uous menedeneesewnies 6

ee GE HONE env deccccerversccdvesseets 6

F. Angument and Authorities. .........0.2ccccesccevees 7

I. Upon the Record Herein, Petitioners Have Failed to

Establish Jurisdiction of This Court to Issue a Writ

FE oct cumercuceh cy canoe aeieke 7

A. The Issues Raised by Petitioners Were Neither

Properly Nor Timely Raised in the State Courts,

and Were Not Passed Upon by the Kansas Su-

SUNDD TMG conecsds swansea netveeneneerss 7

B. Failure of the Kansas Supreme Court to Pass

Upon Any Federal Issue Is Fatal to This Court’s

CT SI oo auto dsptentvenee es 12

II. The Judgment of the Kansas Supreme Court Does

Not Contravene 38 U. S. C. A. § 454a or Any Con-

ee ee ant use a eanak 17

TES ELIE LE Seo OMA LIN Clg RT PTE 26

ALPHABETICAL INDEX TO AUTHORITIES.

CasEs.

PAGE

Allen v. Pearce Dental Supply Co., 149 Kan. 549, 88 P. (2d)

Se SED Woe seswke Fach coke ea toeckewedeen 9

Ambrose v. U. S. 15 F. (2d) 52 CW. D. New York, 1926). .20, 24

Anderson v. Shannon, 146 Kan. 704, 73 P. (2d) 5 (1937).... 7

Baldwin v. Kansas, 129 U. S. 52, 32 L. ed. 640 (1889)..... 8,16

Barbour v. Georgia, 249 U. S. 454, 63 L. ed. 704 (1919)..... 16

a

ALPHABETICAL INDEX TO AUTHORITIES.—Cont’d.

PAGE

Beeler v. Sims, 93 Kan. 213, 144 Pac. 237 CIPOG a vccccess 11

Bilby v. City of Wichita, 151 Kan. 981, 101 P. (2d) 919

CONE) cccvveccvdcnconvesesccservensshareneuesme

Blair v. McQuary, 100 Kan. 206, 164 Pac. 262 (1917)...... 11

Bowe v. Scott, 223 U. S. 658, 58 L. ed. 1141 6. 0 ere 15

Bradley v. U. S. et al., 143 F. (2d) 537 (C.C.A. 10, 1944). .20, 23

Brewer v. Harris, 147 Kan. 197, 75 P. (2d) 287 4.) 10

Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998 (ee 11

Buchanan, Re, 158 U. S. 31, 39 L. ed. 844 4 3 ee 14

Calhoun v. Ussery, 46 F. (2d) 495 (W. D. La., 1930)......- 23

Capital Nat'l. Bank of Lincoln v. First Nat'l. Bank of Cadiz,

172 U. S. 425, 43 L. ed. 502 ¢ . ) Perret ee 15

Carlgren v. Saindon, 130 Kan. 1, 284 Pac. 623 (1930).....- 1]

Carrington v. British Amer. Oil Producing Co., 157 Kan. 101,

138 P. (2d) 463 (1943)...... 0c cece cece eee rees 10-11

Chapin v. Fye, 179 U.S. 119, 45 L. ed. 119 (1900)......--- 13

Charleston Fed. Savings & Loan Ass'n. v. Alderson, 324 U. S.

182, 89 L. ed. 857 CO poccpscvevecouvteneneerses 13, 14

Chicago, I. & L. Ry. Co. v. McGuire, 196 U. S. 128, 48 L. ed.

BES CIID) cc cdcccccertcececrescsrrioenerrenens 15, 16

Christensen v. Christensen, 14 F. (2d) 475 (S. D. New York,

ND cp evel receueeuneereeeseneoenerenss Canees 21, 24

Cincinnati N. O. & ‘I’. P. 1. Co. v. Slade, 216 U. S. 78, 54 L.

od, FIO CIDUD) .oo ccc se sceccsereevrecsererrertss 14

Clark v. Linley Motor Co., 126 Kan. 419, 268 Pac. 860 (1928) 8

Congress of Industrial Organizations v. McAdory, 325 U. S.

472, 89 L. ed. 1741 C1945)... cece eee cree rene 13,14

Corkran Oil & D. Co. v. Arnaudet, 199 U.S. 182, 50 L. ed. 143

CUED occ cdsnecnvs ce reereeecrearenstnareee tee? 15,17

ALPHABETICAL INDEX TO AUTHORITIES.—Cont’d.

PAGE

Coryell v. Hardy, 146 Kan. 522, 72 P. (2d) 457 (1937)...... 7

Cox v. Thomas, 201 U. S. 446, 50 L. ed. 1099 (1906)... .15, 16

— v. St. Louis-S. F. Ry. Co., 120 Kan. 427, 243 Pac. 1050

WE ¥arestrdbandaveecenvarts oblite avis checdens 1]

Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S.

St ey Se nn 16-17

Davidson v. McKown, 157 Kan. 217, 139 P. (2d) 421 (1943). 9

Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665 (1899)... 12

Donnelley v. U. S., 276 U. S. 505, 72 L. ed. 676 (1927)..... 12

Duncan v. Linton et al., 38 Ohio App. 57, 175 N. E. 621

GE Cubed rabudeidwssues oes beadecee chaceeel 23, 24

Elbukan Oil Co. et al. v. Lamb, 12 F. (2d) 387 (C.C.A. 8,

DE cacevucededetaturcbed secretes Celok 10

E] Paso & S. W. R. Co. v. Eichel & Weikel, 226 U. S. 590, 57

ee RR Raa ete Re ee) 13,14

Elliott v. U. S., 271 Fed. 1001 CN. D. Ohio, 1920).......... 23

Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075 (1916)....... 8

Epperson v. Bennett, 161 Kan. 298, 167 P. (2d) 606 (1946).. 10

Fisher v. Central Surety & Ins. Co., 149 Kan. 38, 86 P. (2d)

PRED aoe so kh cbadeoenvicesies dbesecsseua 8

Flournoy v. Weiner, 321 U. S. 253, 88 L. ed. 708 (1944). .12, 15

Gorman v. Washington U., 316 U. S. 98, 86 L. ed. 1300

SER in sted in cadieienes las tees cie it Cuber oe tks 7

Groomer v. Barnes, 148 Kan. 482, 83 P. (2d) 631 (1938).... 10

Harding v. Illinois, 196 U. S. 78, 49 L. ed. 394 (1904)...... 14

Headley v. Challis, 15 Kan. 453 (1875). ............00000. 1]

Henderson v. Decker, 160 Kan. 386, 162 P. (2d) 88 (1945).. 10

Heniff v. Clausen, 154 Kan. 717, 212 P. (2d) 196 (1942).... 10

an

ALPHABETICAL INDEX TO AUTHORITIES.—Cont’d.

PAGE

Herndon v. Georgia, 295 U. S. 441, 79 L. ed. 1430

(| > epererrrrrrrrrr tree 14, 15, 16

Hiawassee River P. Co. v. Carolina-Tenn. P. Co., 252 U. S.

341, 64 L. ed. 601 CHBGED oc cccvcsccccsscoveevessers 9

Honeyman v. Hanan, 300 U. S. 14, 81 L. ed. 476 (1937). . .8, 13

Horton, In re Estate of, 154 Kan. 269, 118 P. (2d) 527 (1941). 11

Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 82 L. ed. 685

4. ) PPPrrrrrrrrrrrr rrr ee 16

Jones v. U. S. et al., 61 F. Supp. 406 (D. Mass., 1945)...... 23

Kaschepky v. Kaschepky, 110 F. (2d) 836 (C.C.A. 6, 1940) .22, 24

Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635 (1872)...... 15

Lambeth v. Bogart, 155 Kan. 413, 125 P. (2d) 377 (1942)... 10

Lashley v. Lashley, 212 Ala. 229, 102 So. 229 (1924)..... 22

Lewis v. U. S., 56 F. (2d) 563 (C.C.A. 3, 1932)......-.- 18

Louisville & N. R. Co. v. Woodford, 234 U. S. 46, 58 L. ed.

1202 C1914) 2. cece wcrc cvccccscccccccerereseseces 16

Lynch v. New York ex rel. Pierson, 293 U. S. 52, 79 L. ed.

IDE CIDE) 2 ccc ccscccccesveseccvccccsseccecess 15,16

McCoy v. Shaw, 277 U. S. 302, 72 L. ed. 891 (1928)........ 15

McGoldrick v. Gulf Oil Corp., 309 U. S. 430, 84 L. ed. 849

CTDGED ccccvevverevccvervescsses ests cesnananes 12,13

McMillan v. Ferrum Mining Co., 197 U. S. 343, 49 L. ed.

FO4 CIDOS) on ccvcccccrcccccensvcgceves cecerevense 15

Mellon v. O'Neil, 275 U. S. 212, 72 L. ed. 245 4 5 See 13

Merrick v. Mo.-K-T-Rld. Co., 141 Kan. 591, 42 P. (2d) 950

CIDDS) ccc caccvesvecsescocnnccveecrrrussessnes

Minnesota v. Nat'l. Tea Co., 309 U. S. 551, 84 L. ed. 920

CONE) cccckectancesercieccdesee seeveunes cevreees 16

ALPHABETICAL INDEX TO AUTHORITIES.—Cont’d.

PAGE

Missouri K. & T. R. Co. v. Sealy, 248 U. S. 363, 63 L. ed. 296

St Lcasiucecekcusatewee heebiekes wena ek unulte 16

Missouri Pacific R. Co. v. Taber, 244 U. S. 200, 61 L. ed.

PE Cia vcle ce gieie go cade u les aeuns cue be we 16

Mollohan v. Patton, 110 Kan. 667, 205 Pac. 643 (1922)...... 11

Montana ex rel. Haire v. Rice, 204 U. S. 291, 51 L. ed. 490

SE bbb oe Lee hedee Cee a ede eres ted Ons ietwe an 12

Mutual Life Ins. Co. of N. Y. v. McGrew, 188 U. S. 291,

Se ee I cibocucsroceeccee eereekosees 15,17

Mystic Legion v. Brewer, 75 Kan. 729, 90 Pac. 247 (1907).... 8

New York ex rel. Rosevale Realty Co. v. Kleinert, 268 U. S.

€ 2 & ft. |: eer ee 12, 13, 14

Onondaga Nation v. Thacher, 189 U. S. 306, 47 L. ed. 826

PEE cca cebu sds Veh cub heauee Oe 14

Penn. Ry. Co. v. Ill. Brick Co., 297 U. S. 447, 80 L. ed. 796

SEEN obi tatca od bile dled oh eee aaa ene eda Soe 16

Picou v. K. C. Pub. Serv. Co., 156 Kan. 452, 134 P. (2d) 686

SE AAU cee h bare eEe edhe er becdener oxbebenare: 9

Radio Station W. O. W., Inc. v. Johnson, 326 U. S. 120, 89 L.

ED x nc sG ks ede db exe 2d neo bak Keceeewnces 14

Robertson v. McSpadden, et al., 46 F. (2d) 702 CE. D. Ark.,

RE chee rue aCe usc tescde bs dee ceeds eee were 20

Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P.

Ce OM oa a Lace le bb cu vere Coivetueedae 10

Southwestern Bell Telg. Co. v. Okla., 303 U. S. 206, 82 L. ed.

ee EE sce iceu sk heb ce reeks cok eeeranetarike 13,16

Smith v. Kagey, 146 Kan. 563, 73 P. (2d) 46 (1937)........ 1]

Staples v. Murray, 124 Kan. 730, 262 Pac. 588 (1928)....... 23

State v. Coulter, 40 Kan. 673, 20 Pac. 525 (1889).......... 11

State v. Pyle, 143 Kan. 722, 57 P. (2d) 93 (1936)........ 8

ALPHABETICAL INDEX TO AUTHORITIES.—Cont’d.

PAGE

State Bank of Stella v. Moritz, 146 Kan. 23, 69 P. (2d) 15

CIDR) noc cyvecsctwesscccersnssey Sureeteees eases 7,8

Stephenson v. Wilson, 147 Kan. 261, 76 P. (2d) 810 (1938).. 8

Stockgrowers State Bank v. Clay, 150 Kan. 93, 90 P. (2d) 1101

{. rere rr eri rt rar re

Tawney v. Blankenship, 150 Kan. 41, 90 P. (2d) 1111 (1939). 11

Thomas v. Iowa, 209 U. S. 264, 52 L. ed. 782 (1908)......-. 14

Thompson v. Maxwell Land Grant & R. Co., 198 U. S. 451,

42 L. ed. 539 (1897). 0... cece ee eee renee eee eeeees 16

Todd v. Central Petroleum Co., 155 Kan. 249, 124 P. (2d)

TOA CUSEZ) on ccc cc cencccsesececcvecceseoereenses

Tri-State Hotel Co., Inc. v. Southwestern Bell Tel Co., 155

Kan. 358, 125 P. (2d) 728 ¢.,) ( Seeerrerere rr rr. 1]

United Artists Corp. v. Mills, 136 Kan. 33, 12 P. (2d) 785

COED vec weneaccevasacedes se reat as Farewerneeres 11

United States v. Williams, 302 U. S. 45, 82 L. ed. 39 (1937).. 18

Vincent v. Kelly, et al., 195 N. Y. S. 57, 118 Misc. Rep. 591

¢,) eRe eee ee eer, 23

Von Der Lippi-Lipski v. U. S., 4 F. (2d) 168 CApp. D.C.,

WEE ccc yankand sa kdes ead ead sense venesenerne'en's 18

Waters-Pierce Oil Co. v. Texas, 212 U. S. 112, 53 L. ed. 431

(,. ) Perr errr etre Pe eee 15,17

Western News Co. v. Wilmarth, 43 Kan. 254, 8 Pac. 104

CUD coc cencde cucu avasse ube Vedran aves teuswenee 11

White River Lumber Co. v. Arkansas ex Rel. Applegate, 279

U. S. 692, 73 L. ed. 903 (1929)... 1... cece cece eee eees 13

Whitney v. California, 274 U. S. 357, 71 L. ed. 1095

COMED casa cssccssenwereceky siaata ny <5 n9een oes 13,16

Williams v. Kaiser, 323 U. S. 471, 89 L. ed. 498 (1945). 15,16

Wolcott v. Wolcott, 17 Ohio App. 48 Pe Sun eeviveb es 22

—

SraTuTES—MIscELLANEY.

PAGE

i eee eM rrr rr re Try rrr eee er 18

eG ey | errr err ere TIT ere ere ree 18

es ee a fo isn s cacec ohn ineceoseeetes 14

ae UE, SO. AG S04, Pee we SSE, cen ie cccstnces 14

28 U.S. C. A. § 344, Note 50, p. 232........0c0ceceeeeees 15

BRU S.A: 3B FOG, Meme GW. B00 oo isi ce seer svaaes 16

26 U.S.C. ALG 304, Mase 221, pw. FBZ... 2... cee ene esnee 14

aU. S.C. A, S06, TOO ZA, BD: HG eo oc a ves Exe nas 14,15

28 U.S. C. A. & 344, Nose 225, p. 205... 6c cnvccasees 14, 16

28 U.S.C. A. § 344, Note 226, p. 286...........0ceeee ees 14

28 U.S.C. A. § 344, Note 227, p. 288..........0. ec eee 14,15

26 U. S.C. A. 8 944, Note 276, 9. 209... occ crac scceces 14

ye ee ee ee eer rrr reer 14

2B Us. S.C AS SO4, ent S51, Os TOG sons esewsiseveces 16

20 U. G.-C. BIG, Mate B06 TB. «5 os ca nc cvesctns 8

Article IV, Section 1, U. S. Constitution................. 12,13

Amendment V, U. S. Constitution...................5. 12, 13

’ Amendment XIV, U. S. Constitution.................566. 12

Rule 27, par. 2(3), and par. 6, Rules of U. S. Supreme Court. 12

Rule 38, par. 2, Rules of U. S. Supreme Court............. 12

Rule 5, Rules Kansas Supreme Court (G.S. Kan., 1935,

BP Wa ci eects ooy hoes oueren ey ea eate seas 9

Rule 6(3)(b), Rules Kansas Supreme Court (G.S. Kan., 1935,

| _) RRE ME ARE sel NRE PEN RE rey eA OR? 10

| American Law of Veterans (Kimborough & Glen, 1946)... .19, 20

| RS | CEE TET CRT hee eT er Peon eS 24

Pe Fei a Se ia hae AN Go eh SRSA TESS No OaSnNNn 24

| Se eg er a ee me ee Le 24

ee

eter eee

IN THE

Aupreme Court of the Anited Atates

OCTOBER TERM, 1946

No. 309.

ASA RAY FRENCH and GLENDA BEATRICE FRENCH,

Petitioners,

vs.

DONALD LINDLEY FRENCH, a Minor, by Mildred B. French,

( his Mother and Next Friend, Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

May IT PLEASE THE COURT:

Your Respondent, Donald Lindley French, a Minor,

by Mildred B. French, his mother and next friend, in

opposition to the petition for writ of certiorari and sup-

porting brief, respectfully shows to this Honorable

Court:

A.

OPINIONS BELOW.

| _ Only opinion of the District Court of Ford County,

| Kansas, is that embodied in the Journal Entry of Judg-

ment (R. b, 9). It is not reported.

2

Opinion of the Supreme Court of Kansas is reported

in 161 Kan. (Ady. Sheet) 327, 167 P. (2d) 305, and ap-

pears at page 24 of the Record. The opinion denying mo-

tion for rehearing is not and won't be reported ; it appears

at page 33 of the record.

B.

JURISDICTIONAL STATEMENT.

(1) Jurisdiction of this Court is invoked under Sec-

tion 237 of the Judicial Code as amended (28 U.S.C. A.

§ 344).

(2) Judgment of the Kansas Supreme Court was en-

tered 6 April 1946 (R. 23, 24). Motion for rehearing (R.

30) was denied on 10 May 1946 (R. 33). Petition for

writ of certiorari was filed 18 July 1946.

(3) No issue as to validity of the subject contract

under Act of 12 August 1935, Chapter 410, § 3, as amend-

ed (38 U.S.C.A. § 454a), was specially set up or claimed

in Petitioners’ pleadings in the trial court (Answer, R.

7-9; Motion for New Trial, R. 11). The trial court’s

judgment does not indicate this issue was determined (R.

b-d, 9-11). It was not designated in the notice of appeal

(R. a, 12) or specification of errors (R. 19) to the Kansas

Supreme Court, nor was it determined by that court (R.

24-29). The contention that the contract violated said

statute was first raised on motion for rehearing (R. 30-

31), which motion was denied without opinion (R. 33).

That the judgment below was violative of the “full faith

and credit” clause (Article IV, Section 1, United States

Constitution) and of the “due process” clauses (Amend-

ments V and XIV, United States Constitution) was urged

for the first time in the instant petition for writ of cer-

tiorari.

3

C.

STATEMENT OF THE CASE.

This was an action to recover $5,000, being one half the

proceeds of U. S. Government Life Insurance (R. 7).

Respondent, plaintiff below, is the insured’s son (R. 3).

Petitioners, defendants below, are the insured’s parents

(R. 5).

Respondent's petition alleged his father, a U. S. N. R.

Ensign (R. 5), purchased a $10,000 U. S. Government

Life Insurance policy on 29 April 1940 (R. 5), naming

Petitioners beneficiaries (R. 5). Before making applica-

tion for the policy the insured told his parents, the Peti-

tioners, he planned to procure such policy and designate

Petitioners as beneficiaries, but that, should he die, he

wanted Petitioners to pay half the policy proceeds to Re-

spondent and the other half to Respondent’s mother (R.

4-5). Petitioners agreed (R. 5). The insured died in

1943 (R. 6). Petitioners received the policy proceeds

(R. 6), $5,000 of which they held “as trustee for” Re-

spondent (R. 6). Despite proper demand, Petitioners

refused to carry out the agreement (R. 6-7).

Petitioners’ answer admitted all allegations of the

petition (R. 7-9), except it denied the agreement (R. 8)

and alleged such an agreement would be “void and il-

legal” (R. 9).

At the trial, Respondent introduced evidence to estab-

lish the agreement (R. 10, 16-17). Petitioners moved for

judgment on the evidence and pleadings (R. 10, 15),

which motion was overruled (R. 10, 15). Petitioners then

demurred to the evidence as failing “to show any right

of recovery” or “to prove any cause on which to base a

judgment” (R. 10, 14). The demurrer was overruled (R.

nn ag tcscebasimm ec iaesataey simtiit

4

10, 15). Petitioners elected to stand on their demurrer (R.

10, 15). The trial court then discharged the jury (R. 10,

15), found generally for Respondent (R. 10), and spe-

cifically found Petitioners were bound by the agreement

(R. 10, 15.) Judgment was entered accordingly (R. 10,

11).

Petitioners filed motion for new trial on the ground of

“erroneous rulings” and that the judgment was “contrary

to” and “not supported by” the evidence and was “con-

trary to law” (R. 11). The motion was overruled (R. 11).

Appeal was taken to the Kansas Supreme Court (R.

12). Petitioners’ specification of errors (R. 12) was

couched in vague generalities. It did not cite or suggest

violation of the Act of 12 August 1935, Chapter 419, § 3

(38 U. S.C. A. § 454a) or any provision of the United

States Constitution (R. 12).

In their brief to the Kansas Supreme Court, Petitioners

specified only three “Questions Involved” (Brief of Ap-

pellant, p. 2):

“1. Was there a contract made between Donald

Ray French, the insured, and his father and mother,

Asa Ray French and Glenda Beatrice French, the

beneficiaries, upon which the plaintiff is entitled to

recover the proceeds of the insurance?

“2. When the appellants collected the proceeds

of the insurance policy, did they become trustees of a

constructive and/or resulting trust (as claimed by

plaintiff) or any other sort of trust, for the benefit of

the appellee?

“3. Was there a change of beneficiaries in the in-

surance policy, which would make the plaintiff the

beneficiary (equitable or actual) and entitle him to

the proceeds of the insurance?”

5

The only argument presented in their brief, in support

of their first “Question Involved”, was that the contract

was void for lack of mutuality (cf. R. 28-29) and consid-

eration (cf. R. 28). For their second proposition, Peti-

tioners relied upon revocability and absence of a trust res,

under an earlier Kansas Supreme Court decision (cf.

R. 29). With reference to the third issue, Petitioners

cited Bradley v. United States, et al., 143 F. (2d) 537

(C. C. A. 10, 1944) as establishing the insured had not

effected a change of beneficiary. Petitioners did not quote

from or discuss the one portion of the Bradley opinion

wherein validity of an agreement as to insurance pro-

ceeds was considered, did not cite or refer to 38 U. S. C.

A. § 454a; and the Kansas Supreme Court, having deter-

mined the other two questions adversely (R. 25-29), was

not required to and did not pass upon Petitioners’ third

contention (R. 25-29).

Petitioners submitted the case to the Kansas Supreme

Court upon their brief, without oral argument (R. 23,

25), and that court did not pass upon the federal issues

raised by the instant petition for writ of certiorari (R. 24-

29).

Petitioners then filed a motion for rehearing wherein

they urged, for the first time (cf. implied admission in

paragraph | of said motion—R. 30), that the judgment

violated 38 U.S.C.A. § 454a (R. 30-32). Even in that

motion no contention was made that any provision of the

United States Constitution was involved (R. 30-32).

The motion was denied without opinion (R. 33). Where-

upon Petitioners filed the subject petition for writ of

certiorari.

6

D.

QUESTIONS PRESENTED.

Although largely confined to the questions posed by

Petitioners (Petition, pp. 4, 13), Respondent considers

the following question necessarily involved :

Does the record herein affirmatively show the issues

raised by Petitioners were specially and specifically set

up, at the proper time and in the proper manner, for de-

cision by the Kansas Supreme Court, were necessary to

that court’s decision, and were actually determined there-

by?

E.

SUMMARY OF ARGUMENT.

1. No issue as to validity of the instant agreement

under 38 U. S. C. A. § 454a was presented to or passed

upon by the Kansas Supreme Court. The record fails to

show such issue was raised in the state trial court, nor was

it specified in the notice of appeal, specification of errors,

or statement of questions involved in Petitioners’ brief

to the Kansas Supreme Court. The Kansas Supreme Court

did not pass upon the issue in its opinion. First raising

the issue upon motion for rehearing was too late, at least

when the Kansas Supreme Court denied the motion with-

out opinion. The other, constitutional issues were never

raised in the state courts at any time. Therefore, no juris-

diction exists to issue writ of certiorari.

2. The agreement in controversy is between the in-

sured and the named beneficiaries, for the benefit of a

third person. It is not a contract to “assign” the policy

7

‘proceeds’, but is more in the nature of a designation of

new beneficiary, and the only statute applicable is 38

U.S.C. A. § 511. The authorities unanimously recognize

and enforce such agreements, providing the third party

beneficiary or cestui que trust is within the allowable

class of beneficiaries of government insurance under

38 U. S. C. A. § 511. Petitioners’ reliance is upon deci-

sions dealing with agreements between named benefici-

aries and third persons, to which the insured is not a party,

and which, therefore, constitute agreements to assign

the policy proceeds in violation of 38 U.S. C. A. § 454a.

The distinction is obvious and well recognized, and no -

substantial federal question is posed by the case at bar.

F.

ARGUMENT AND AUTHORITIES.

I.

Upon the Record Herein, Petitioners Have Failed to Establish

Jurisdiction of This Court to Issue a Writ of Certiorari.

The burden is upon Petitioners to show jurisdiction of

this Court to issue the writ of certiorari (Gorman v.

Washington University, 316 U. S. 98, 86 L. ed. 1300,

1942; rehearing den. 316 U.S. 711, 86 L. ed. 1777). This

they have failed to do.

A. The issues raised by Petitioners were neither prop-

erly nor timely presented in the State courts, and were

not passed upon by the Kansas Supreme Court.

Upon appeal from a decision of a lower, district court,

the Supreme Court of Kansas considers only issues which

were urged in the trial court (Coryell v. Hardy, 146 Kan.

522, 524, 72 P. 2d 457, 1937; State Bank of Stella v.

Moritz, 146 Kan. 23, 69 P. 2d 15, 1937; Anderson v.

8

Shannon, 146 Kan. 704, 73 P. 2d 5, 1937; Stephenson v.

Wilson, 147 Kan. 261, 76 P. 2d 810, 1938; Fisher v. Cen-

tral Surety & Ins, Co., 149 Kan. 38, 86 P. 2d 583, 1939;

see Baldwin v. Kansas, 129 U.S. 52, 32 L. ed. 640, 1889).

And such issues must have been fairly raised and clearly

and specifically pointed out to the district court to be

available on appeal (Mystic Legion v. Brewer, 75 Kan.

729, 733, 90 Pac. 247, 1907; Emery v. Bennett, 97 Kan.

490, 155 Pac. 1075, 1916; Clark v. Linley Motor Co., 126

Kan. 419, 268 Pac. 860, 1928; Merrick v. Missouri-K-T

Rid. Co., 141 Kan. 591, 595, 42 P. 2d 950, 1935; State v.

Pyle, 143 Kan. 722, 782, 57 P. 2d 93, 1936; State Bank

of Stella v. Moritz, 146 Kan. 23, 69 P. 2d 15, 1937; Todd

vy. Central Petroleum Co., 155 Kan. 249, 124 P. 2d 704,

1942).

The record in this case fails to show any issue was pre-

sented to the state district court with respect to 38 U.S.C.

A. § 454a or any provision of the U. S. Constitution.

Neither the answer (R. 7-9) nor the motion for new trial

(R. 11) even suggests any such issue. The same state-

ment applies to the Journal Entry (R. b-d, 9-11). The

rather amazing certificate of the district court judge,

appendum number | to the petition for writ of certiorari

(p. 17), can avail Petitioners nothing. It is no part of

the Record herein. Even a certificate from the Chief Jus-

tice of the state court of last resort that a federal issue

was presented to and passed upon by that court cannot

import into the record a federal question not otherwise

appearing therein, its sole office being to make certain

that which is otherwise ambiguous on the face of the rec-

ord (Honeyman v. Hanan, 300 U. S. 14, 81 L. ed. 476,

1937; app. dism. 302 U. S. 375, 82 L. ed. 312; cases cited

in 28 U.S.C.A. § 344, Note 256, p. 298 et seq.) In any

9

event, the district judge’s certificate was no part of the

record before the Kansas Supreme Court upon the appeal.

Therefore, the Kansas Supreme Court had no reason to

suspect these issues were presented to or passed upon by

the trial court.

Furthermore, for jurisdictional purposes with respect

to writs of certiorari, whether a particular issue was

passed upon by the state trial court is immaterial unless

the issue was also raised in and decided by the highest

state appellate court (Hiawassee River P. Co. v. Caro-

lina-Tennessee P. Co., 252 U. S. 341, 64 L. ed. 601, 1920).

In this connection, only errors specified in the notice

of appeal (R. a, 12) are reviewable by the Kansas Su-

preme Court (dJlen v. Pearce Dental Supply Co., 149

Kan. 549, 551, 88 P. 2d 1057, 1939). And irrespective of

how broad such notice of appeal may be, the only issues

open to an appellant in the Kansas Supreme Court are

those specified in the abstract (Davidson v. McKown,

157 Kan. 217, 139 P. 2d 421, 1943; Picou v. Kansas City

Public Service Co., 156 Kan. 452, 455, 134 P. 2d 686,

1943: Bilby v. City of Wichita, 151 Kan. 981, 101 P. 2nd

919, 1940; Stockgrowers State Bank v. Clay, 150 Kan. 93,

94-95 90 P. 2nd 1101; 1939). This is in accordance with

Rule Number 5 of the revised (15 Sept. 1942) Rules of

the Supreme Court of Kansas (G. S. Kan., 1935, 60-

3826) :

“The appellant's abstract shall include a specifica-

tion of the errors complained of, separately set forth

and numbered.”

Petitioners’ specification of errors (R. 19) does not

refer to 38 U. S.C. A. § 454a or to any provision of the

United States Constitution, nor does it fairly imply any

of the federal issues relied upon in the instant petition for

POO ae Y

10

writ of certiorari. Furthermore, general specifications

that the trial .court “erred” are nullities, it being the rule

in Kansas that a litigant cannot, on appeal, rely upon any

issue not clearly and unmistakably called to the Kansas

Supreme Court's attention by the specification of errors

(Lambeth v. Bogart, 155 Kan. 413, 415, 125 P. 2d 377,

1942; Heniff v. Clausen, 154 Kan. 717, 212 P. 2d 196,

1942; Brewer v. Harris, 147 Kan. 197, 75 P. 2d. 287,

1938; Groomer v. Barnes, 148 Kan. 482, 83 P. 2d 631,

1938; Elbukan Oil Co. et al. v. Lamb, 12 F. 2d 387, C. C.

A. 8, 1926).

Again, Rule 6(3) (b) of the aforesaid Rules of the

Kansas Supreme Court (G. S. Kan., 1935, 60-3826), re-

quires that appellant’s brief contain:

“A statement of the question involved, or sep-

arately numbered statements of the several questions

involved, in very brief and very general terms, to

enable the court to acquire immediate comprehen-

sion of the nature of the controversy.”

Respondent’s “Statement of the Case”, supra, sets forth

verbatim the questions formulated by Petitioners in their

brief to the Kansas Supreme Court; they fail to raise

the federal issues now under consideration. Neither were

these issues presented or discussed in Petitioners’ brief to

the Kansas Supreme Court. Hence even assuming, al-

though denying, that Petitioners’ specification of errors

or statement of questions involved posed these issues, the

Kansas Supreme Court could properly deem them aban-

doned and refuse to pass upon them (Epperson v. Ben-

-nett, 161 Kan. [Adv. Sheet] 298, 300, 167 P. 2d 606,

1946; Henderson v. Deckert, 160 Kan. [Adv. Sheet] 386,

162 P. 2d 88, 1945; Sams v. Commercial Standard Ins.

Co., 157 Kan. 278, 139 P. 2d 859, 1943; Carrington v.

11

British American Oil Producing Co., 157 Kan. 101, 138

P. 2d 463, 1943; Tri-State Hotel Co. Inc. v. Southwestern

Bell Telephone Co., 155 Kan. 358, 125 P. 2d 728, 1942;

In re Estate of Horton, 154 Kan. 269, 276, 118 P. 2d 527,

1941; Tawney v. Blankenship, 150 Kan. 41, 90 P. 2d 1111,

1939; Smith v. Kagey, 146 Kan. 563, 570, 73 P. 2d 46,

1937).

Petitioners did finally raise the issue of whether the

contract violated 38 U.S. C. A. § 454a by motion for re-

hearing (R. 30-31) filed after the Kansas Supreme Court

had rendered its opinion (although even in that motion

no contention was made that the judgment contravened

any provision of the United States Constitution). But

since the opinion in Headley v. Challis, 15 Kan. 453

(1875), written by Mr. Justice Brewer, it has been well

settled in Kansas that:

“Where a case has once been submitted and de-

cided, this court will not, as a rule, upon a motion

for rehearing, consider any question not presented

upon the original hearing.” (Syl. 1)

Among the many Kansas decisions to this effect are:

United Artists Corp. v. Mills, 136 Kan. 33, 12 P. 2d 785

(1932); Carlgren v. Saindon, 130 Kan. 1, 284 Pac. 623

(1930); Craig v. St. Louis-S. F. Rly. Co.; 120 Kan. 427,

243 Pac. 1050 (1926); Brown v. Oil Co., 114 Kan. 482,

218 Pac. 998 (1913); Mollohan v. Patton, 110 Kan. 667,

205 Pac. 643 (1922); Blair v. McQuary, 100 Kan. 206,

164 Pac. 262 (1917); Beeler v. Sims, 93 Kan. 213, 144

Pac. 237 (1914); State v. Coulter, 40 Kan. 673, 20 Pac.

525 (1889) ; and Western News Co. v. Wilmarth, 34 Kan.

25+, 8 Pac. 104 (1885). Very properly, therefore, the

Kansas Supreme Court denied the motion for rehearing

without opinion (R. 33).

12

It is submitted no “federal issue” was timely or proper-

ly presented to or determined by the Kansas Supreme

Court.

B. Failure of the Kansas Supreme Court to Pass

Upon Any Federal Issue Is Fatal to This Courts’ Cer-

ttorari Jurisdiction.

At the outset it is noted that Petitioners, in formulat-

ing “Questions Presented” per Rule 38, paragraph 2, of

the Rules of this Court, attempt to predicate federal is-

sues upon Section 1, Article IV (“full faith and credit”

clause) and Amendments V and XIV (‘due process”

clauses) of the United States Constitution.

For several reasons these constitutional issues are una-

vailable to Petitioners. Such issues were never presented

to or considered by the Kansas Supreme Court at any

time, and no issue not asserted in and passed upon by the

state supreme court is ground for certiorari (McGol-

drick v. Gulf Oil Corp., 309 U. 8. 430, 84 L. ed. 849,

1940). Even assuming, arguendo, a proper federal issue

as to 38 U.S. C. A. § 454a had been raised in the Kansas

Supreme Court, this would not authorize Petitioners’

reliance upon these additional constitutional issues (Mon-

tana ex rel. Haire v. Rice, 204 U. S. 291, 51 L. ed. 490,

1907; Dewey v. Des Moines, 173 U.S. 193, 43 L. ed. 665,

1899). Again, Rule 27, paragraph 2(3) of the Rules of

this Court requires a specification in Petitioners’ brief of

the errors relied upon; paragraph 6 of Rule 27 provides

all errors not so specified will be disregarded (and see

Flournby v. Weiner, 321 U.S. 253, 259° 261, 263, 88 L. ed.

708, 1944; Donnelley v. U. S., 276 U. S. 505, 511, 72 L.

ed, 676, 1927; New York ex rel. Rosevale Realty Co. v.

Kleinert, 268 U. S. 646, 651, 69 L. ed. 1135, 1925). Peti-

tioners’ specification of errors (Brief, p. 13) and “sum-

13

mary of argument” (Brief, p. 13) fail to assert the con-

stitutional issues. Too, the “full faith and credit” clause

(Section 1, Article IV) merely requires each state to

recognize the statutes, records, and judicial proceedings

“of every other State”, and has no application to federal

enactments. Likewise the “due process” clause of the

Fifth Amendment applies only to the federal government

(Chapin v. Fye, 179 U.S. 119, 45 L. ed. 119, 1900). In

any event, the constitutional issues add nothing to Peti-

tioners’ “title, right, privilege or immunity” under 38

U. S. C. A. § 454a insofar as the appropriate jurisdic-

tional statute (28 U. S. C. A. § 344 (b)) is concerned.

With reference to Petitioners’ alleged rights under 38

U.S.C. A. § 454a, it is well established that, to vest this

Court with certiorari jurisdiction, it must affirmatively

appear from the record that the federal question (wheth-

er the subject contract is violative of said statute) was

properly presented to the Kansas Supreme Court for de-

cision, that its decision was necessary to a determination

of the cause, and that it was actually decided by the Kan-

sas court (Congress of Industrial Organizations v. Mc-

Adory, 325 U. S. 472, 89 L. ed. 1741, 1945; Charleston

Fed. Sav. & L. Asso. v. Alderson, 324 U.S. 182, 89 L. ed.

857, 1945; McGoldrick v. Gulf Oil Corp., 309 U. S. 430,

84 L. ed. 849, 1940; Southwestern Bell Telegraph Co. v.

Oklahoma, 303 U. S. 206, 82 L. ed. 751, 1945; Honeman

v. Hanan, 300 U. S. 14, 81 L. ed. 476, 1937, appeal dism.

302 U.S. 375, 82 L. ed. 312; White River Lumber Co. v.

arkansas ex rel. Applegate, 279 U. S. 692, 73 L. ed. 903,

1929; Mellon v. O’Neil, 275 U. S. 212, 72 L. ed. 245,

1927; Whitney v. California, 274 U. 8S. 357, 71 L. ed.

1095, 1926; New York ex rel. Rosevale Realty Co. v.

Kleinert, 268 U. S. 646, 69 L. ed. 1135, 1925; El Paso &

14

S.W.R. Co. v. Eichel & Weikel, 226 U. S. 590, 57 L. ed.

369, 1913; Cincinnati N. O. & T. P. R. Co. v. Slade, 216

U. S. 78, 54, 54 L. ed. 390, 1910; cases cited in 28 U. S. c.

A. § 344, Note 49, p. 231 et seq.).

The statute (28 U. S. C. A. § 344 (b)) requires that the

federal issue be “specially set up or claimed” in cases

such as this (where the validity of a statute or treaty is

not involved), and this necessitates a showing that the

federal issue was specifically and pointedly called to the

Kansas Supreme Court’s attention and not obscured by

generalities (Congress of Industrial Organizations v.

McAdory, supra, 325 U. S. 472, 89 L. ed. 1741; Charles-

ton Fed. Sav. & L. Asso. v. Alderson, supra, 324 U. S.

182, 89 L. ed. 857; Herndon v. Georgia, 295 U.S. 441, 79

L. ed. 1430, 1935, reh. den. 296 U. S. 661, 80 L. ed. 471;

New York ex rel. Rosevale Realty Co. v. Kleinert, supra,

268 U. S. 646, 69 L. ed. 1135; El Paso & S. W. R. Co. v.

Eichel & Weikel, supra, 226 U. S. 590; 57 L. ed. 369;

Thomas v. Iowa, 209 U. S. 264, 52 L. ed. 782, 1908;

Harding v. Illinois, 196 U. S. 78, 49 L. ed. 394; 1904;

Onondaga Nation v. Thacher, 189 U. S. 306, 47 L. ed.

826, 1903; Re Buchanan, 158 U. S. 31, 39 L. ed. 844, 1895;

see cases cited in 28 U.S. C. A. § 344, Note 221, p. 282,

Note 228, p. 289, and Note 230, p. 291).

The federal issue must also have been presented to the

Kansas Supreme Court timely and in a manner proper

under the procedural rules of the State of Kansas (Con-

gress of Industrial Organizations v. McAdory, supra,

325 U. S. 372, 89 L. ed. 1741; see cases cited in 28 U. S.C.

A. § 344, Note 224, p. 284 Note 225, p. 285, Note 226, p.

286, and Note 227, p. 288). First raising the issue on

motion for rehearing is too late (Radio Station W. O. IV.,

Inc. v. Johnson, 326 U. S. 120, 89 L. ed. 2092, 1945;

—

15

Herndon v. Georgia, supra, 295 U.S. 441, 79 L. ed. 1530;

Bowe v. Scott, 223 U. S. 658, 58 L. ed. 1141, 1914; Wa-

ters-Pierce Oil Co. v. Texas, 212 U.S. 112, 53 L. ed. 431,

1909; Corkran Oil & D. Co. v. Arnaudet, 199 U. S. 182,

50 L. ed. 143, 1905; McMillen v. Ferrum Mining Co.,

197 U. S. 343, 49 L. ed. 784, 1905; Mutual Life Ins. Co.

of N. Y. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 1903;

Capital Nat. Bank of Lincoln v. First Nat. Bank of

Cadiz, 172 U. S. 425, 43 L. ed. 502, 1898; and see 28

U. S. C. A. § 344, Note 224, p. 284, and Note 227, p.

288.)

“Nothing is better settled than that it is too late to

raise a federal question for the first time in a peti-

tion for rehearing, after the final judgment of the

state court of last resort.” (28 U.S.C. A. § 344, Note

227, p. 288.)

If the Kansas Supreme Court decision was based in

part on a “non-federal” ground, sufficient in itself to

support the judgment, certiorari cannot issue (McCoy v.

Shaw, 277 U.S. 302, 72 L. ed. 891, 1928; 28 U. S.C. A.

§ 344, Note 50, p. 232). This rule is applied even when it

is not clear whether the state decision was in the fact

premised upon a non-federal basis, so long as the opinion

could or might have been so based (Williams v. Kaiser,

323 U. S. 471, 89 L. ed. 498, 1945; Flournoy v. Wiener,

321 U. S. 253, 88 L. ed. 708, 1944; Lynch v. New York

ex rel. Pierson, 293 U.S. 52, 79 L. ed. 191, 1934; Cox v.

Thomas, 201 U. S. 446, 50 L. ed. 1099, 1906; Chicago,

I.&@ L.R. Co. v. McGuire, 196 U. S. 128, 49 L. ed. 413,

1905; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635,

1872). Thus, if, by Kansas law, the Kansas Supreme

Court might have refused to determine the federal issue

for any procedural reason—as, for example, failure to

raise the issue in the trial court, failure properly to speci-

ENO ee ne ony

16

fy such error in the abstract or brief, or failure to present

the issue before motion for rehearing—writ of certiorari

cannot issue (Penn. R. Co. v. Illinois Brick Co., 297 U.S.

447, 80 L. ed. 796, 1936; Herndon v. Georgia, supra, 295

U. S. 441, 79 L. ed. 1530; Barbour v. Georgia, 249 U.S.

454, 63 L. ed. 704, 1919; Missouri, K & T. R. Co. v.

Sealy, 248 U. S. 363, 63 L. ed. 296, Kan., 1919; Mo. Pac.

R.Co. v. Taber, 244 U. S. 200, 61 L. ed. 1082, 1917;

Louisville €& N.R. Co. v. Woodford, 234 U. S. 46, 58 L.

ed. 1202, 1914; Cox v. Thomas, 201 U. S. 446, 50 L. ed.

1099, 1906; Chicago, I. & L. R. Co. v. McGuire, supra,

196 U. S. 128, 49 L. ed. 413; Baldwin v. Kansas, 129 U.

S. 52, 32 L. ed. 640, 1889; see 28 U. S. C. A. § 344, Note

225, p. 285, Note 81, p. 251).

Finally, the record itself must affirmatively show these

requirements have been satisfied and that the federal is-

sue, upon which certiorari is sought, was actually raised

in and determined by the Kansas Supreme Court: Wil-

liams v. Kaiser, 323 U. S. 471, 89 L. ed. 398 (1945) ;

Minnesota v. National Tea Co., 309 U. S. 551, 84 L. ed.

920 (1940); Southwestern Bell Teleph. Co. v. Okla.,

supra, 303 U. S. 206, 82 L. ed. 751 (1938) ; Lynch v. New

York ex rel. Pierson, 293 U. S. 52, 79 L. ed. 191 (1934) ;

Whitney v. California, supra, 274 U. S. 357, 71 L. ed.

1095; see 28 U. S.C. A. § 344, Note 251, p. 294 et seq. It

is customary to examine the opinion of the state court of

last resort in determining what issues were passed on by

that court (Indiana ex rel. Anderson v. Brand, 303 U. S.

95, 82 L. ed. 685, 1938, reh. den. 303 U. S. 667, 82 L. ed.

1123; Thompson v. Maxwell Land Grand & R. Co.,

168 U. S$. 451, 42 L. ed. 539, 1897), and if, as in a denial of

motion for rehearing, no opinion is filed by the state court,

writ of certiorari cannot issue (Cuyahoga River Power

17

Co. v. Northern Realty Co., 244 U. S. 300, 61 L. ed. 1153,

1917; Waters-Pierce Oil Co. v. Texas, supra, 212 U. S.

112, 53 L. ed. 431; Corkran Oil & Do. Co. v. Arnaudet,

supra, 199 U.S. 182, 50 L. ed. 143; Mut. Life Ins. Co. of

N.Y.v. McGrew, 188 U.S. 291, 47 L. ed. 480, 1903).

Tested by these principles, no jurisdiction to issue a

writ of certiorari exists in the case at bar. No federal issue

was raised by Petitioners’ answer (R. 7) or motion for

new trial (R. 11), and none was determined by the state

district court (R. b, 9). No such issue was “‘specially set

up or claimed” in the notice of appeal (R. 12), specifi-

cation of errors (R. 19), “questions presented” in Peti-

tioners’ brief, or in the actual brief itself to the Kansas

Supreme Court; and undeniably it was never “clearly

and unmistakably” presented to that court. The record

(R. 24-29) fails to disclose, affirmatively or by negative

implication, that any federal issue was ever raised in or

determined by the Kansas Supreme Court prior to the

motion for rehearing (R. 30), which motion was denied

without opinion (R. 33). Substantial non-federal grounds

support the court’s decision inasmuch as the federal issue

was not properly, timely, or clearly raised. It is submitted,

therefore, that the petition herein should be denied.

II.

The Judgment of the Kansas Supreme Court Does Not

Contravene 38 U. S. C. A. § 454a or Any Constitutional

Provision.

Inasmuch as each of the questions presented and urged

by Petitioners (Petition, p. 4, 13) comes merely to the

contention that the agreement, upheld by the Kansas

Supreme Court decree, is void under 38 U. S. C. A. §

454a, we confine ourselves to that proposition.

18

Assuming, although denying, that the Kansas Su-

preme Court was required to and did pass upon this is-

sue in reaching its decision in the case at bar, it is sub-

mitted such judgment would involve no novel holding,

would be fully in accord with a considerable body of

unanimous precedent, and would not be in contraven-

tion of 38 U.S.C. A. § 454a.

In their argument Petitioners entirely misconceive the

nature and effect of the agreement which they erroneous-

ly contend is violative of the statutory mandate that:

“Payments of benefits due or to become due shall

not be assignable...” (38 U.S. C. A. § 454a)

This provision obviously refers to agreements between

beneficiaries and third persons to assign insurance pro-

ceeds. There could be no conceivable justification for

construing the quoted phraseology as applicable to the

insured himself. The insured may, at any time, change

the designation of beneficiary so as to “assign” the “bene-

fits” to any person of his choosing, so long as he selects

a beneficiary within the authorized class, and any agree-

ment purporting to foreclose this right is void (Von Der

Lippi-Lipski v. U. S., 4 F. 2d 168, App. D. C., 1925;

Lewis v. U. S., 56 F. 2d 563, C. C. A. 3, 1932; see United

States v. Williams, 302 U. S. 45, 82 L. ed. 39, 1937). It

would be a peculiar distortion of the old adage to hold the

insured were prohibited from doing indirectly that which

he is authorized to do directly.

Respondent and his mother were both within the class

of beneficiaries designated by the statute (38 U.S.C. A.

§ 511, 43 Stat. 624, as amended). The insured might

have named them beneficiaries in the first instance. He

might at any time have changed the designation of bene-

19

ficiaries from Petitioners to Respondent and his mother.

Obviously, then—and the authorities unanimously so hold

—the insured might contract with Petitioners that they

pay the proceeds to Respondent. Such an agreement is

tantamount to and is tested by the beneficiary designation

provisions (38 U. S. C. A. § 511), rather than by the

“assignment of proceeds” limitations (38 U. S. C. A. §

454a) of the statute. Petitioners’ failure to appreciate

the distinction between a contract to which the insured

is a party and one between the designated beneficiaries

and third persons (not including the insured) is indicated

by their reference to the instant contract as one between

Petitioners’ and Respondent’s mother (Petition for Writ

of Certiorari, lines 3, 4, page 2).

The distinction Respondent is urging appears clearly

from the following summary of the appropriate law in

American Law of Veterans (Kimborough & Glen, 1946) :

“Trusts in Insurance Proceeds.—The National

Service Life Insurance Act is silent with respect to

the right of an insured to ingraft a trust upon the in-

surance proceeds. In the face of a similar omission in

the War Risk Insurance Act the courts held that a

trust created by the insured would be enforced... .

A trust thus created is revocable. Affirmance of the

right to establish a trust in insurance proceeds does

not mean that an insured can go outside the permitted

class of beneficiaries and establish a trust in their

favor, since to do so would be an evasion of the statu-

tory provisions limiting the class of persons entitled

to receive insurance proceeds.” (§ 522, p. 396; em-

phasis ours)

At the same time, and in the same paragraph, the

authors recognize that a similar trust or agreement be-

tween the named beneficiary and others, to which the in-

hPa TB OAT 10 yd 8

20

sured was not a party, might be invalid as an assignment

of proceeds:

“Whether an agreement between a beneficiary and

others to share the proceeds of insurance with them

would be enforceable as a trust, in view of the statu-

tory provisions against assignment of insurance pro-

ceeds, may be open to doubt.” (§ 522, p. 397; em-

phasis supplied) ‘

Petitioners rely herein upon Bradley v. United States,

143 F. (2d) 537 (C. C. A. 10, 1944). There the insured’s

policy named his mother as beneficiary. Later he ex-

pressed a wish that his wife be so designated, but he

neither notified his mother to such effect nor entered into

any such agreement with her. After his death a fight en-

sued over the proceeds. In the main, the decision deals

solely with the question of whether the insured had ef-

fected a valid change of beneficiary. However, the moth-

er alleged an agreement, made after the insured’s death,

between the mother and the wife, to share the proceeds

equally, and it is this agreement which the court held vio-

tive of the non-assignment provision of 38 U. S. C. A. §

4549. To the same effect is Robertson v. McSpadden et

al., 46 F. (2d) 702 (E. D. Ark., 1931), and American

Law of Veterans, supra, § 523, p. 397.

These authorities, however, are wholly out of point

where, as here, the trust or agreement was entered into be-

tween the insured and the designated beneficiary.

Thus, in Ambrose v. U.S., 15 F. (2d) 52 (W. D. New

York, 1926), a soldier took out War Risk Insurance nam-

ing his sister as beneficiary. Before doing so, however,

by letter and orally he instructed his sister he was desig-

nating her with the understanding she should share the

policy proceeds with his other sisters and brother. After

21

the soldier’s death, it was held this amounted to a change

of beneficiary, enforceable as such. Alternatively, the

court likewise held:

“Plaintiffs also seek recovery herein on the theory

that the designated beneficiary became a trustee for

the combined benefit of plaintiffs and herself. The

proofs . . . establish this claim. The parol agree-

ment between her and the insured that she would

divide the installments was valid, and was sufficiently .

broad to impress a trust upon her which a court of

equity may enforce.”

Similarly, in Christensen v. Christensen, 14 F. (2d)

475 (S. D. New York, 1926), two brother-soldiers each

took out War Risk Insurance, each policy naming a third

brother, Carlo, as beneficiary. The two brothers, how-

ever, entered into an agreement with Carlo that upon the

death of either brother Carlo should share his insurance

proceeds with the surviving brother. In a suit by the sur-

viving brother to recover the policy proceeds from Car-

lo, it was held:

“Tt is true that an assignment of the rights to war

veterans’ insurance would be invalid. However, com-

plainant comes within the permitted class under sec-

tion 300 (Comp. St. § 912714-300) which provides

that ‘the insurance shall be payable to a spouse, child,

grandchild, parent, brother, sister, uncle,’ etc.”

“An oral trust is alleged to have been created at

the time of taking out the insurance. This was valid

under general principles of law [citations], and there

is nothing in the statute which forbids it in relation

to the particular insurance here involved. It amount-

ed to the designation of the complainant as a contin-

gent beneficiary at the time the insurance was taken

out. The defendant Carlo Christensen had nothing

differing from a passive or dry trust in one-half of the

22

insurance. His duty was but to receive and pay over

the insurance moneys.”

In Wolcott v. Wolcott, 17 Ohio App. 48 (1920), where

a soldier, contemporaneously with applying for War

Risk Insurance, wrote his father that he was designating

him beneficiary but instructed the father to hold the pro-

ceeds for other persons within the permitted class of bene-

ficiaries, it was held a valid and enforceable trust was

created. +

Lashley v. Lashley, 212 Ala. 229, 102 So. 229 (1924),

enforced a similar contract. A soldier purchased War

Risk Insurance designating his brother as beneficiary.

He and his brother orally agreed the brother should share

the proceeds equally with the insured’s other brothers

and sisters. In upholding this contract after the insured’s

death, the court wrote (102 So. at 230):

“We find nothing in the federal statutes or the

policy which forbids this trust or the enforcement

of same in the courts of this state. The creation of

the trust was contingent and did not impair the right

of the insured to redesignate or change the benefi-

ciary at any time before his death.”

Following Ambrose v. U. S., supra, 15 F. (2d) 52, an

agreement between a soldier, the insured under a War

Risk Insurance Policy, and his brother, the designated

beneficiary, that the latter should share the proceeds

equally with the insured’s other brothers and sisters,

was held, after the insured’s death, to constitute a valid

and enforceable contract in favor of the other brothers

and sisters: Kaschefsky v. Kaschefsky, 110 F. (2d) 836

-(C. C. A. 6, 1940).

23

Compare, also, Duncan v. Linton, et al., 38 Ohio App.

57, 175 N. E. 621 (1929), pet. in error dism., 121 Oh. St.

615, 172 N. E. 377. And see Staples v. Murray, 124 Kan.

730, 262 Pac. 588 (1928), which does not consider such an

agreement void under 38 U. S. C. A. § 454a (although

holding the contract unenforceable for other reasons, to

which extent the case is expressly overruled by the instant

opinion—R. 29). And see Elliott v. U. S., 271 Fed. 1001

(N. D. Ohio, 1920), where a trust, under circumstances

comparable to those here existing, was denied not because

of invalidity but because the evidence failed to establish

any agreement or understanding between the insured and

the beneficiary.

The only decisions refusing to enforce contracts of this

nature, entered into between the insured and the benefi-

ciary, are those in which the insured attempted to create

rights in favor of third persons outside the class of

permitted beneficiaries; yet these decisions do not deny

the insured’s right to so contract with the designated ben-

eficiary for the benefit of third persons within the allow-

able beneficiary class: Jones v. U.S. et al., 61 F. Supp.

406 (D. Mass., 1945, and Vincent v. Kelly, et al., 195 N.Y.

S. 57, 118 Misc. Rep. 591 (1922).

One case which involves both an agreement between the

insured and the named beneficiary (such as the contract

now in controversy), and also an agreement between the

named beneficiary and third persons, to which agreement

the insured was not a party (the type of contract con-

demned in Bradley v. United States, supra), is of inter-

est here. In Calhoun v. Ussery, 46 F. (2d) 495 (W. D.

La., 1930), a soldier named his sister beneficiary under

a War Risk Insurance. Later he wrote her instructions

to share the proceeds with his other two sisters. There-

24

after he married and died, leaving two infant children

surviving. The named beneficiary and her two sisters

shared the policy proceeds in accordance with the con-

tract with the insured, and the validity of this agreement

is not questioned by the decision. However, thereafter,

because the infant children were in necessitous circum-

stances, the three sisters agreed among themselves to turn

over the unpaid installments, when received, to the chil-

dren. The latter trust was held unenforceable, although

the grounds stated in the opinion throw little light on the

case at bar.

As a matter of fact the case at bar might, despite Brad-

ley v. United States, supra, have been based quite prop-

erly upon the theory that the agreement between the in-

sured and Petitioners effected a change of beneficiaries

under the policy: Kaschefsky v. Kaschefsky, supra, 110

F. (2d) 836; Duncan v. Linton, et al., supra, 38 Ohio

App. 57, 175 N. E. 621; Ambrose v. U. S., supra, 15 F.

(2d) 52; Christensen v. Christensen, supra, \4 F. (2d)

475: see cases on “What constitutes valid change of bene-

ficiary” under War Risk Insurance, U. S$. Government

Life Insurance, and National Service Life Insurance, in

55 A. L. R. at 587, et seq., 73 A. L. R. at 327 et seq., and

81 A. L. R. at 931 et seq. In Ambrose v. U. S, supra, 15

F. (2d) at 53, wherein the court held letters from the

insured to his sister, the designated beneficiary, telling her

to share the proceeds with the insured’s brother and other

sisters, constituted not only a valid trust, but also amount-

ed to an effective change of beneficiary, the opinion

reads:

“Should not his [the insured’s] letters to his sis-

ter, Alice, the beneficiary, expressing his wish or di-

rection for an equal division or apportionment to

25

both sisters and brother, in fairness to him, be ac-

cepted as the equivalent of a written request to the

bureau to include them as beneficiaries? In matters

of the kind under consideration the soldier’s real

purpose and wish should control.

“In Claffy v. Forbes (D. C.) 280 F. 233, Judge

Neterer said that it was not vital that the bureau

should receive notice of the change of beneficiary be-

fore the death of the insured, and that ‘throughout

the history of the civilized world, since the decrees

of Julius Caesar, the intention and wish of the sol-

dier, with relation to designation of beneficiary or

disposition of property, killed in the line of duty,

has been carried out when ascertained, whether it

was scrawled in the sand with the point of his sword,

or written on the scabbard of his sword or his shield;

* * * and remedial justice requires, under the facts

in this case, that the designation of the niece in the

letter to the mother be established from the date of

presentation to and record thereof by the Bureau of

War Risk Insurance.’ ”

If, in this case, the Kansas Supreme Court had held

the agreement constituted a valid change of beneficiary,

then there could be no contention that the judgment was

violative of 38 U.S.C.A. § 454a, and no federal issue

would be involved. And since this is a substantial non-

federal ground upon which the Kansas Supreme Court

judgment might have been based, it would appear cer-

tiorari cannot issue (see cases cited under Section I, B.,

supra, of this Brief).

In any event, it is submitted 38 U.S. C. A. § 454a has no

application to an agreement between the insured and the

named beneficiary to pay the proceeds to a third person,

the only requirement applicable to such agreements be-

ing that such third person satisfy the beneficiary qualifi-

cations of 38 U.S.C. A. § 511.

26

G.

CONCLUSION.

Petitioners’ brief and petition fail to demonstrate any

federal issue presented to and passed upon by the Su-

preme Court of Kansas. Furthermore, there is no con-

ceivable violation of 38 U. S. C. A. § 454a by the agree-

ment held enforceable by the Kansas Supreme Court.

The federal issue Petitioners raise in this case is non-

existent. Only by misconstruing the facts herein and treat-

ing the agreement as one between the designated benefi-

ciary and a third person, rather than a contract between

the insured and the beneficiary for the benefit of a third

person, are Petitioners able to construct any controversial

issue whatever, federal or non-federal.

It is submitted this Court neither can nor should issue

a writ of certiorari in this case for the sole purpose of

making clear to Petitioners an obvious distinction which

is, and for many years has been, observed by the courts in

all instances wherein agreements dealing with War Risk

Insurance or United States Government Life Insurance

proceeds have been litigated. Wherefore, it is respect-

fully submitted the petition for writ of certiorari be de-

nied.

ROBERT C. FOULSTON,

JOHN F. EBERHARDT,

Both of Wichita, Kansas,

Counsel for Respondent.

LANE A. DUTTON,

W. C. GOULD,

Both of Dodge City, Kansas,

Of Counsel.