385 P.2d 825 | Nev. | 1963
OPINION
By the Court,
Appellant presents two matters for determination: (1) whether bank funds on deposit to the credit of Security National Bank of Reno as the duly appointed guardian of the estate of Dale Eugene Sollars, an insane person, by order of the Second Judicial District Court, Washoe County, Nevada, are in custodia legis and thus exempt from attachment issuing out of the Eighth Judicial District Court, Clark County, Nevada; and (2) whether such funds are exempt from attachment on claims of creditors by reason of the provisions of § 3101, Title 38, U.S.C., being a portion of Chapter 53, entitled "Special Provisions Relating to [Veterans’] Benefits.” As a reversal must follow by reason of the exemption created by the federal act under the second question presented, it is unnecessary to determine the first question.
“ (a) Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. The preceding sentence shall not apply to claims of the United States arising under such laws nor shall the exemption therein contained as to taxation extend to any property purchased in part or wholly out of such payments.”
The funds in question, against which the attachment was levied, were maintained by the guardian bank in a cash savings account from which the funds could have been and actually have been withdrawn upon demand for the use of the incompetent. A transcript of such
Appellant cites to us in support of its appeal Porter v. Aetna Casualty and Surety Co., 370 U.S. 159, 82 S.Ct. 1231, 8 L.Ed.2d 407, decided June 11, 1962. In that case United States District Court for the District of Columbia held the fund exempt under 38 U.S.C. § 3101 (a). The Court of Appeals for the District of Columbia reversed, but the Supreme Court, on certiorari, reversed and held the funds exempt.
Porter v. Aetna Casualty and Surety Co. is a complete answer to respondents’ contention that deposits in an interest-bearing savings account are investments and are thus not subject to the exemption under the provision that the exemption shall not “ ‘extend to any property purchased in part or wholly out of such payments.’ ” The court referred to Lawrence v. Shaw, 300 U.S. 245, 57 S.Ct. 443, 81 L.Ed. 623, 108 A.L.R. 1102, for support of its holding, defining the test to be “whether as so deposited the benefits remain subject to- demand and use as the needs of the veteran for support and maintenance required.” Lawrence v. Shaw also held that the allowance of interest on such deposits would not destroy the exemption.
Respondents seek to distinguish Porter because the judgment against the veteran was there based on contract, while the present judgment was based on tort. They cite sundry text discussions in which such distinction is made and cases where there is a distinction recognized under special statutes. They have no significance here. The federal statute specifically excepts certain claims against which the exemption does not apply. Respondents would inject into the statute an additional exception. This cannot be done.
Respondents further seek an analogy with the bankruptcy law which provides that the liability upon an award of a judgment for punitive damages (which is in
Respondents rely on Carrier v. Bryant, 306 U.S. 545, 59 S.Ct. 707, 83 L.Ed. 976 (1939). Such case was decided two years after Lawrence v. Shaw, supra, and was to the effect that negotiable notes and United States bonds purchased with veterans’ benefits and “held as investments” had no federal statutory immunity. But it was with reference to and full cognizance of both Lawrence and Carrier that Porter was determined.
Respondents also rely on Hale v. Gravallese, 340 Mass. 722, 166 N.E.2d 557 (1960). There, relying on In re Bowen, 141 Ohio St. 602, 49 N.E.2d 753, the Massachusetts court held that a checking account is subject to the exemption “but that savings accounts * * * are
The order appealed from is reversed, with costs, and the case remanded with directions to the district court to enter an order granting the motion to quash the writ.