# Opposition Brief — French v. French

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0702%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1946
- **Citation:** 329 U.S. 727

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0702%3A3. Public record. Not legal advice.