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UNITED STATES v. SMITH

March 6, 1958

UNITED STATES of America, Plaintiff,
v.
Dorothy SMITH and Elaine Smith, Defendants



The opinion of the court was delivered by: BRYAN

This is an action in the nature of interpleader brought by the United States under 38 U.S.C.A. § 445 and 38 U.S.C.A. § 817, to secure an adjudication as to which of the two defendants is entitled to the benefits of a National Service Life Insurance policy in the sum of $ 5,000 on the life of Mark D. Smith. Defendant Dorothy Smith is the mother of the insured and defendant Elaine Smith is his wife.

Defendant Elaine Smith has moved for summary judgment and defendant Dorothy Smith cross-moves for the same relief. The facts on which the parties rely, as stated in the amended complaint, and as supplemented by various Air Force forms executed by the deceased, and the affidavits submitted by the respective parties, are, for all practical purposes, undisputed. Questions relating to a document alleged to have been executed by deceased as his last will and testament have been excluded from consideration on this motion by agreement of counsel.

 The only question is whether the decedent intended to and did effectuate a change of beneficiary under the policy from his mother to his wife.

 The facts are as follows:

 The deceased, Mark D. Smith, then named David Mark Lincoln Boger, entered the United States Air Force in 1947 at the age of 17, having completed two years of high school. He was honorably discharged on September 2, 1953. He died on January 26, 1956, some two and one-half years after he had left the service.

 On November 1, 1947, a National Service Life Insurance policy No. N20-614-045, in the amount of $ 5,000, was issued to the decedent. The policy named his mother, defendant Dorothy Smith, as the sole beneficiary. This insurance was renewed on November 1, 1952, by a five year term policy No. V17-384-546, which was in force and effect at the time of decedent's death.

 On September 16, 1951, the insured married defendant Elaine (Rush) Smith and on January 31, 1953, a son, Brian Mark Smith, was born of the marriage. At the time of his death the insured was survived by his wife, his son and his mother. The wife and the mother both made formal claim for the death benefits provided for in the policy. Payment of the claims has been withheld pending the determination of this action.

 Apparently no record of change of beneficiary of the policy on the life of the insured from his mother to his wife was received by the Veterans' Administration prior to his death. The key to the problem of whether such a change was effected lies in a series of service forms filled out and executed by the insured while he was still in the Air Force. The wife asserts that these forms establish the intent of Mark Smith to change his beneficiary from his mother to her, and constitute such action on his part as he might reasonably be supposed to have thought sufficient to carry out this intent. The mother asserts, on the other hand, that insufficient is shown by these forms to establish either intent to make the change or that proper action was taken to effectuate it legally.

 Subsequent to his marriage the insured executed the following service forms:

 (a) An 'Air Force Personal Affairs Statement' (Air Force Form 381).

 (b) Two 'Records of Emergency Data' (DD Form 93), and one subsequently revised form of 'Record of Emergency Data' (DD Form 93).

 (c) A 'Report of Separation from Armed Forces' (DD 214).

 These forms must be read together to determine the intent of the insured and the action which he took to effectuate it.

 The Personal Affairs Statement (Air Force Form 381) signed by the insured is dated July 7, 1952, some nine months after his marriage. It states his address as in care of his parents-in-law, names his wife as the person to be notified in case of an emergency, as his sole dependent, and as the recipient of his allotments and nowhere mentions his mother even as an ...


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