122 F.2d 179 | 7th Cir. | 1941
This is the second appeal in this case, which involves a war risk insurance policy. The decision on the prior appeal appears in 7 Cir. 106 F.2d 240. The facts there stated make a lengthy recital of them unnecessary. The appellants are the soldier’s named beneficiary, Mary Benchick Kos-tecka, allegedly his common law wife, and the administrator of his estate.
Stated chronologically, the facts are:
May 27, 1918 Insured died in the army.
May 26, 1926 The date on which appellant, Mary Benchick Kostecka, filed filed her claim with the Veterans’ Bureau.
July SO, 1926 Letter denying Mrs. Kostecka’s claim.
June 3, 1931 Stockyards Bank filed claim as guardian of Insured’s daughter.
August 13, 1931 Denial of claim.
December 20, 1932 Ohio judgment acknowledging status of insured’s and Mrs. Kostecka’s common law marriage.
Jan. 2, 1936 Date of letter to Stockyards Bank restating disallowance of bank’s claim.
Jan. 31, 1936 Live Stock Bank appealed to Administrator of Veterans’ Affairs.
June 25, 1936 Letter of Solicitor re Live Stock Bank in re denial of its claim.
July 13, 1936 Suit of Administrator of estate filed.
July 15, 1938 Date of judgment appealed from in No. 6801.
June 9, 1939 Opinion of this court in No. 6801.
Oct. 9, 1939 Mary B. Kostecka granted leave to intervene, in suit by administrator.
The previous appeal disposed of certain questions which were originally in the case. It settled, by disallowance, the claim of the administrator.
If we ignore the law of the case and approach the administrator’s claim anew, it seems clear that if there ever existed a valid claim against defendant, it was in favor of Mrs. Mary B. Kostecka. The Live Stock Bank, as administrator, on the record before us, has no valid claim arising out of the veteran’s insurance policy. This is the holding on the previous appeal. It is, on this appeal, again so held.
What of the claim of Mrs. Mary Kos-tecka ?
She did not appear at the previous trial, save as a witness. She was present in court but did not make any claim to insurance. Subsequently she was granted leave to intervene, and, relying upon the Ohio court adjudication asserted that she was the common law wife of the veteran and therefore his lawful widow.
Unfortunately, her claim has long since been, and now is, barred by the statute of limitations. She presented her claim in 1926. It was disallowed July 30, 1926. She never brought suit thereon.
Assuming that her intervention in the present suit is the equivalent of suit by her, we find the date of the intervention action was October 9, 1939. Her claim was then barred.
We can find no escape from this defense, —the Statute of Limitations, — unless we can say the proceeding by the administrator, which was instituted in 1931 and which resulted in its disallowance in 1936 (see previous opinion) tolled the statute for Mrs. Kostecka. The administrator’s claim was not for the widow. It might be called adverse to her.
We have searched rather diligently to find a way whereby this theory might be sustained. We believe that courts should be liberal in finding and upholding an excuse for a beneficiary of a veteran’s insurance, if she be a dependent of said deceased veteran, who, ignorant of her rights and the law, is slow to present his claim. However, in this case, we find Mrs. Kostecka presented her claim to the Veterans’ Bureau in time. The Government was prompt in disallowing it. This was back in 1926. Acquiescence in its disallowance for thirteen years is a bar to her present effort to obtain a revival of her claim. The statute of limitations enacted by Congress is a statute for us to apply — not to rewrite.
The judgment is affirmed.
