as alternate beneficiaries. If the theory be warranted it must not be inconsistent with the agreed facts and must be logically necessary to effectuate the desire and intention of the insured.
I am persuaded that the insured clearly denoted his intention to make his foster mother the sole beneficiary of his insurance. This is evidenced by all that he did. His first application designated her as his primary beneficiary. He was advised by the bureau that she was ineligible since she was not within the permitted class. If the act of the insured, in making his second application, was forced it must be said that he was coerced by a correct statement of the law as applied to his application and this implies that he was induced to surrender his will and to substitute a designation of beneficiary which did not conform to his primary purpose. What he later did shows that he was not so influenced. He adhered to his original purpose with genuine tenacity. He recognized his foster mother as the natural and the proper person to receive and enjoy the benefits of his insurance. In making the second application he designated his estate as beneficiary. His letter which accompanied this application indicates that he had done so upon deliberation. He had taken counsel of his commanding officer and followed his advice. This letter shows that he was not thwarted in his purpose, but was persistent in his desire to have his foster mother receive the benefits of his insurance. He explains his reasons and expresses the belief that his wish in that regard will be realized through the administration of his estate. His letter discloses that he was not forgetful of his brothers and clearly shows that his definite purpose was to provide for his foster mother. From the letter it is apparent that he had in mind his last will, previously drawn, by which he sought to leave all his property to his foster mother, except for a small bequest to a church. In this letter, after making reference to his brothers by name by says "* * * but I much preferred making the beneficiary Miss Julia E. Clark because she took me to raise at 18 months of age at which time my mother died. In view of the fact that she would soon be dependent upon me I made her the beneficiary on first application." The quoted language leaves little to the imagination as to the insured's desire and intention.
The insured was not forced to omit the designation of his brothers in the second application. Since he had not forgotten them it must be assumed that he was deliberate in omitting their names. It is reasonable to believe that his second application, made under advice which he valued, more clearly indicates his intention than the first which was superseded. He had his brothers in mind when preparing the second application and when writing the letter which accompanied it. These brothers were within the permitted class, as the insured well knew. If it had been his wish to provide for these brothers he may well have allowed the original application to stand; but the contrary was true. His thought and concern was for his foster mother.
Congress later amended the applicable law by permitting the designation of a foster mother, so enlarging the permitted class and further by permitting the designation of the beneficiary through the medium of a last will. These amendments were made retroactive and related back to give full effect to his true, original and persistent intention to care for his foster mother. Horst v. United States, D.C., 283 F. 600; Schroeder v. United States et al., D.C., 24 F.2d 420.
This view of the facts leads to the conclusion that Julia E. Clark, the foster mother of the insured was the lawfully designated and sole beneficiary of the veteran's insurance, and upon her death on April 26, 1925, the estate of the insured became entitled to the value of the unpaid monthly installments under Section 303 of the World War Veterans' Act, 1924, as amended by the act of March 4, 1925, 38 U.S.C.A. § 514. To hold that Julia E. Clark, foster mother of the insured, was the only designated beneficiary carried the implication that bureau improvidently made payment of various installments to the brothers of the insured. The claim of this plaintiff, administrator de bonis non cum testamento annexo, accrued to the estate of the insured upon the death of Julia E. Clark on April 26, 1925, and the limitations on suit contained in Section 19 of the World War Veterans Act, 1924, as amended July 3, 1930, 38 U.S.C.A. § 445, had expired before the first administrator of the estate of the insured, Fred R. Wallace, made claim for such benefits in the Veterans Administration in August, 1933.
It follows that this court lacks jurisdiction to hear and determine the cause and that the case should be dismissed for want of jurisdiction.
It is so ordered.
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