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February 1, 1949


The opinion of the court was delivered by: MCGRANERY

This is a suit brought under 38 U.S.C.A. § 817, as amended, providing that 'In the event of disagreement as to any claim' arising under the National Service Life Insurance Cat of 1940, an action on the claim may be brought against the United States. Plaintiff asserts her right to the benefits under an insurance policy in a dual capacity: as mother and natural guardian of her daughter, a minor, and also in her own right, as the wife of insured. The United States has impleaded Helen Rickards, the mother of plaintiff's deceased husband, and a cross-claim on behalf of the minor daughter has been asserted against Helen Rickards who is her grandmother. Both parties to the cross-claim have moved for judgment: plaintiff for judgment on the pleadings and defendant for summary judgment. Cf. Rule 12(c), Rules of Civil Procedure, as amended, 28 U.S.C.A. After hearing argument on the motions, and examining the pleadings and the evidence before the Court, and interrogating counsel, the following appear to me to be material facts existing without material controversy:

1. The plaintiff, Fannie J. Licznerski, and her minor daughter, Arlene Janet, are the widow and daughter respectively of John W. Licznerski, Jr., deceased, who was a citizen of the United States prior to his death, residing in the Eastern District of Pennsylvania.

 2. John W. Licznerski, Jr., enlisted in the Armed Forces of the United States on January 22, 1943, and was honorably discharged for medical reasons on October 3, 1943. While in service, deceased applied for and was granted a National Service Life Insurance Policy in the amount of $ 10,000. In the policy he named his wife, Fannie, principal beneficiary for the full amount and his daughter, Arlene, contingent beneficiary. This action is based upon that contract of National Service Life Insurance between defendant, the United States, and deceased.

 3. Deceased, at the time of his discharge, was suffering from tuberculosis, and on January 28, 1944, entered the Veterans' Administration Hospital at Castle Point, New York, for treatment. A few days later, he was discharged from the hospital because of absence without official leave. He then went to live with his mother, Helen Rickards, where he remained until he died on July 10, 1944.

 4. On March 30, 1944, deceased executed a 'Change of Beneficiary' form, naming his mother, Helen Rickards, and his daughter, Arlene, as principal beneficiaries in equal shares, and his daughter as contingent beneficiary for the full amount.

 5. On May 29, 1944, deceased executed another form naming his mother as principal beneficiary for the full amount of the insurance, and his daughter as contingent beneficiary.

 6. After insured died an action was brought in the Court of Common Pleas of Philadelphia County No. 5, June Term, 1944, No. 1890. On July 14, 1944, defendant Helen Rickards signed the following writing:

 'Know All Men By These Presents, that I, Helen Licznerski, also known as Helen Rickards, do hereby release, remise, assign and set over all my right, title and interest in and to a certain war risk policy of insurance wherein my son John W. Licznerski is the insured, and since about April 18, 1944, I have been named as beneficiary, being Policy No. 8408723, unto my granddaughter, Arlene Janet Licznerski, also the daughter of the said John W. Licznerski, or to her duly appointed guardian.

 'This assignment of my interest in the said policy unto my said granddaughter aforesaid is in accordance with stipulation entered in the Court of Common pleas No. 5 on a certain Bill in Equity which was heard on July 14, 1944, before the Honorable Vincent A. Carroll; and I do hereby further agree to sign any and all additional papers that may be required to effectuate this assignment in law, or that the Veterans Administration or the particular governmental agency in charge of the said policy of insurance may require.

 'In Witness Whereof, I have hereunto set my hand and seal this fourteenth (14th) day of July, A.D. 1944.'

 (S) 'Mrs. Helen Rickards. (SEAL)'

 (S) 'Helen Licznerski'

 7. This document was submitted to the Veterans' Administration to have the assignment effectuated, but was returned to plaintiff with the statement that the law did not allow the making of such assignments.

 8. Plaintiff filed a formal claim for insurance benefits with the Veterans' Administration on September 27, 1947. On November 26, 1947 the Veterans' Administration wrote defendant Helen Rickards acknowledging receipt of her claim for benefits under the policy and inquiring whether it was still her desire to assign her rights to the insurance to her granddaughter. On December 10, 1947, plaintiff's claim was denied by ...

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