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WILMOTH v. UNITED STATES

April 3, 1969

Barbara L. WILMOTH, Plaintiff,
v.
UNITED STATES of America et al., Defendants



The opinion of the court was delivered by: WADDY

 WADDY, District Judge.

 This is an action before the Court sitting without a jury to recover proceeds of a National Service Life Insurance policy. Plaintiff, a sister of the deceased insured, brought suit against the United States pursuant to 38 U.S.C. § 784. A second sister and the wife of the deceased insured (each of whom claimed an interest in the policy's proceeds) were interpleaded by the defendant United States. The United States admits liability under the said policy of insurance and has averred its willingness to pay the proceeds of said policy to the person or persons lawfully entitled thereto.

 The evidence before the Court established that Walter B. Wilmoth (hereinafter "the insured") while a member of the Armed Forces of the United States was issued by the Veterans Administration (hereinafter "VA") National Service Life Insurance (hereinafter "NSLI") Policy No. N 15 399 628 effective as of February 1, 1944. Gertrude Wilmoth, the insured's mother was the designated principal beneficiary and Virginia Wilmoth, a sister of the insured was the designated contingent beneficiary, each for the full amount of the insurance.

 The insured converted the full $10,000 of insurance to a 20-payment life plan effective February 1, 1951, Policy V 1580 32 64) in which he designated his mother, Gertrude Wilmoth, as principal beneficiary for 100 percent of the proceeds, and his sisters, Barbara L. Wilmoth (plaintiff) and June L. Wilmoth (interpleaded defendant) as contingent beneficiaries for 50 percent each. The insured's mother died in 1962.

 On May 26, 1964 prior to his retirement on June 1, 1964, the insured executed "DA Form 41" entitled "Record of Emergency Data" in which he designated his sisters, Virginia R. Biddle, Barbara L. Wilmoth and June L. Haley (nee June L. Wilmoth) as beneficiaries in equal shares of any gratuity in the event he had no spouse or child surviving him, and designated his wife, Florence J. Wilmoth, as beneficiary for balance due in his pay and allowance account including savings deposits. The insured further designated his wife, Florence J. Wilmoth, as the person to receive an allotment if the insured were missing. In the blanks calling for the full name and address of companies with which he presently had insurance policies in force and his policy numbers, the insured listed "National Service Life Insurance," "V 1580-32-64".

 The insured died on January 12, 1965, while NSLI Policy No. V 1580 32 64 was in full force and effect.

 Following the death of the insured, June L. Wilmoth (now June Wilmoth Haley) and Barbara L. Wilmoth filed claims with the VA for proceeds of the said NSLI policy, claiming as designated beneficiaries of record, the principal beneficiary under the designation of February 1, 1951, having previously died. A claim for the proceeds of the said NSLI policy was also filed with the VA by Florence J. Wilmoth who claimed by virtue of an alleged change in the designation of beneficiary in her favor.

 By decision dated February 3, 1966, the Board of Veterans Appeals found the wife, Florence J. Wilmoth, to be entitled to the proceeds of the said NSLI policy, thereby denying the claims of June Wilmoth Haley and Barbara L. Wilmoth to said proceeds. In the course of its decision the Board of Veterans Appeals found that the insured had intended to have his wife, Florence, as beneficiary of his NSLI policy and that he had used DA Form 41 entitled "Record of Emergency Data" to accomplish the change in beneficiary. The Board of Veterans Appeals held that the use of this form was adequate affirmative evidence to effectuate his intent.

 At the outset, the Court is faced in this proceeding with the question of its own function. Recent federal district court decisions indicate a degree of confusion with respect to the effect of a prior Veterans Administration adjudication between the parties as to the right to NSLI proceeds.

 In 1965, the United States District Court for the Eastern District of New York stated in the course of its opinion in a 38 U.S.C. § 784 action:

 
"The evidence adduced at the [VA] hearing was sufficiently substantial for the agency to arrive at its conclusion, and, therefore, this court will not disturb the administrative agency's final determination." ...

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