Bollow v. First Wisconsin Trust Co.

270 N.W. 82, 223 Wis. 262, 1936 Wisc. LEXIS 550
CourtWisconsin Supreme Court
DecidedDecember 8, 1936
StatusPublished
Cited by4 cases

This text of 270 N.W. 82 (Bollow v. First Wisconsin Trust Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bollow v. First Wisconsin Trust Co., 270 N.W. 82, 223 Wis. 262, 1936 Wisc. LEXIS 550 (Wis. 1936).

Opinion

Wickhem, J.

There is no issue of fact in this case. Frederic W. Bollow, a World War veteran, died intestate at Milwaukee on October 11, 1934, leaving surviving him as his sole heir at law a minor son, William F. Bollow.-Bollow’s wife, mother of the minor, died June S, 1932, and Bollow never remarried. The minor son resided with the defendant Gretchen Bollow, a sister of Frederic Bollow, and since the death of the father has continued to reside with Gretchen Bollow. On April 12, 1935, defendant Gretchen Bollow was appointed general guardian of the minor, Wil[264]*264liam Bollow, and on September 4, 1935, was appointed and qualified as administratrix of the estate of Frederic Bollow.

At the time of his death, Frederic Bollow was the named assured in the government life insurance policy (War Risk Insurance) heretofore referred to. The mother of insured was designated as beneficiary. The policy provided for the payment in a lump sum of the sum of $10,000 upon the death of the insured to the designated beneficiary. Sections 15, 16, and 17 of this policy, so far as here material, provided as follows:

“15. . . . The proceeds of this policy shall not be subject to the claims of creditors of the insured or creditors of any beneficiary to whom the proceeds may be awarded, excepting claims of the United States arising under the War Risk Insurance Act or the World War Veterans Act.
“16. The proceeds of this policy are exempt from all taxation.
“17. . . . (a) If no beneficiary within the permitted class be designated by the insured, either in his lifetime or by his last will and testament, or if the designated beneficiary does not survive the insured, then there shall be paid to the estate of the insured the present value of the remaining unpaid monthly instalments.”

The beneficiary died in February, 1932, and no other designation of beneficiary was made by the insured. In November, 1935, the proceeds of this policy were paid to Gretchen Bollow, as administratrix. With the exception of assets totaling about $30, these proceeds constitute the only assets of the estate. On July 19, 1933, the claimant, as receiver, obtained and docketed a judgment against Frederic W. Bollow for the sum of $781.18, based on a claim for rent for business premises occupied by Bollow prior to the date of the judgment. This judgment was' thereafter assigned by plaintiff as receiver to itself as executor of the last will of Charles A. Koeffler, Jr., deceased. The question pre[265]*265sented is whether, under the provisions of the policy and the laws of the United States applicable thereto, the proceeds of this policy are subject to the claims of creditors of the insured. This calls for an examination of the several federal statutes and decisions.

Claimant relies upon section 454, title 38, of the Code of Laws of United States of America (38 USCA, § 454), in force January 3, 1935. Section 454 reads as follows:

"Assignability and exempt status of compensation, insurance, and maintenance and support allowances. The compensation, insurance, and maintenance and support allowance payable under Parts II, III, and IV, respectively, shall not be assignable; shall not be subject to the claims oí creditors of any person to whom an award is made under Parts II, III, or IV; and shall be exempt from all taxation. Such compensation, insurance, and maintenance and support allowance shall be subject to any claims which the United States may have, under Parts II, III, IV, and V, against the person on whose account the compensation, insurance, or maintenance and support allowance is payable.
“The provisions of this section shall not be construed to prohibit the assignment by any person to whom converted insurance shall be payable under Part III of this chapter of his interest in such insurance to any other member of the permitted class of beneficiaries.” (June 7, 1924, ch. 320, sec. 22, 43 U. S. Stat. at L. 613.)

Two decisions by the IJnited States supreme court have a bearing upon the question presented. In Singleton v. Cheek, 284 U. S. 493, 52 Sup. Ct. 257, 259, construing section 514, title 38, USCA, hereafter referred to, it was held that all instalments of life insurance, whether accruing before the death of the insured or after the death of the beneficiary named in the certificate of insurance, become assets of the estate of the insured as of the instant of his death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of his residence, such heirs to be [266]*266determined as of the date of his death and not as of the date of the death of the beneficiary. The court in the Singleton Case, supra, made no determination as to the liability of the proceeds of such a policy to creditors of the insured veteran. The decisions of this court in Estate of Singer, 192 Wis. 524, 213 N. W. 479, and Estate of Greiner, 195 Wis. 332, 218 N. W. 437, are to the same effect. In Pagel v. Pagel, 291 U. S. 473, 54 Sup. Ct. 497, section 454 was construed, and it was held that the language of this section limits the exemption to “any person to whom an award is made;” that the statute does not extend the exemption beyond the insured and beneficiary; and that the exemption of the fund does not survive both insured and beneficiary for the benefit of the heirs of the former. We think it clearly established by this case that under section 454 the proceeds of such a policy in the hands of the administratrix of insured’s estate are liable for the debts of the insured.

Respondent contends that the Pagel Case, supra, is to be distinguished by reason of the fact that in that case the named beneficiary survived the veteran, whereas here the beneficiary predeceased the veteran. We discover nothing in either the facts or holding to indicate the materiality of this distinction. In the Singleton Case it was said that,—

“All instalments, whether accruing before the death of the insured or after the death of the beneficiary named in the certificate of insurance, . . . became assets of the estate of the insured. ...”

In the Pagel Case, the court said:

“In Singleton v. Cheek, ... we held that, when the insured and the designated beneficiary die successively intestate, the commuted amount of the instalments not accrued when the beneficiary dies is to be paid to the estate of the insured for distribution to his heirs and that the heirs are to be determined as of the time of his death in accordance with [267]*267the laws of the state where he resided and are not limited to the class of beneficiaries designated by the act. . . . The purpose of the exemption, section 454, is to safeguard to the insured soldier and the beneficiary payments made under the policy to them or for their benefit. Spicer v. Smith, 288 U. S. 430, 434. . . . The language of the statute limits the exemption to ‘any person to whom an award is made.’ It is clear that the statute does not extend the exemption beyond the insured and beneficiary.”

We discover nothing in this language to support the claimed distinction.

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Bluebook (online)
270 N.W. 82, 223 Wis. 262, 1936 Wisc. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bollow-v-first-wisconsin-trust-co-wis-1936.