also made, totaling $ 61.80. The total paid Clyde E. Warner was $ 590.35.
12. Similarly, payments totaling $ 1,333.52 were made to defendant Pearl A. Hinkle, natural sister of the insured, and $ 836.60 to defendant Robert E. Sheck as guardian for Mae Viola Warner, also a natural sister of the insured. All such payments were made subsequent to the date when plaintiff filed her formal claim for the proceeds of the insurance.
13. During the year of 1949, plaintiff, through the Department of Veterans Affairs, requested reconsideration of the 1946 decision. Her application was denied, because the time for appeal had expired. The Veterans Administration noted that plaintiff could 'file suit in the appropriate United States District Court at any time within the period provided by the statute of limitations'.
14. Defendant Clyde E. Warner has filed a cross-claim, in which he has demanded the remainder of the insurance proceeds from the United States of America. The United States of America has interpleaded the aforementioned defendant Clyde E. Warner, and also defendant K. V. Nicola as the guardian of the natural mother of the insured, defendant Robert E. Sheck as the guardian of Mae Viola Warner, and defendant Pearl A. Hinkle. The United States of America has requested allowance of the $ 2,760.47 which it paid to Clyde E. Warner, guardian Robert E. Sheck and Pearl A. Hinkle.
15. Clyde E. Warner has stipulated that he did not support the insured 'for a number of years prior to the adoption.'
Conclusions of Law
1. This Court has jurisdiction of the subject matter of this action and of the parties.
2. At the time of the death of the insured, plaintiff, the adopted sister of the insured, was effectually the designated principal beneficiary, since the adopted mother of the insured had predeceased the insured.
3. Plaintiff, the designated contingent beneficiary of the said insurance policy, does come within the class of beneficiaries permitted by the National Service Life Insurance Act. Carpenter v. United States, 3 Cir., 1948, 168 F.2d 369, 3 A.L.R.2D 841, has settled that question in this District.
4. The United States of America is not entitled, under the provisions of Sec. 602(i) of the National Service Life Insurance Act of 1940, 38 U.S.C.A. § 802(i), to a set-off against plaintiff of the $ 2,760.47 paid to the natural father and natural sisters of the insured because insured did designate a beneficiary who survived him.
5. The United States of America is not entitled, under the provisions of Sec. 602(l) of the National Service Life Insurance Act of 1940, 38 U.S.C.A. § 802(l), to a set-off of the $ 2,760.47 because the payments were not made to persons 'represented by the insured' to be within the permitted class of beneficiaries.
6. Plaintiff is entitled to recover from the defendant, the United States of America, the benefits of the said policy. The rate of monthly installments thereunder are to be computed by the Veterans Administration in accordance with the terms of the policy and the regulations of the Veterans Administration.
7. As a reasonable attorney's fee, Edward G. Petrillo, Esq., of Erie, Pennsylvania, attorney for the plaintiff, is entitled to ten (10%) per cent of the aggregate sum of the installments which have accrued to plaintiff to date, and also ten (10%) per cent of any and all future installments which may hereafter be paid to the said plaintiff, by virtue of and pursuant to the judgment to be entered herein.
8. Plaintiff is not entitled to interest and costs. See U.S. v. Worley, 1930, 281 U.S. 339, 50 S. Ct. 291, 74 L. Ed. 887.
In this case, trial by jury was waived, and the facts are not at issue. They are found as set forth in the accompanying findings of fact and conclusions of law.
Carpenter v. United States, 3 Cir., 168 F.2d 369, 3 A.L.R.2d 841 is binding upon this Court on the question whether an adopted sister is within the permitted class of beneficiaries.
I can see no legal basis for penalizing plaintiff and granting the United States of America credit for the payments which it made erroneously to the blood relatives of the insured. In all instances, the payments were made long after plaintiff had made formal claim as designated beneficiary. The record is barren of any evidence indicating that plaintiff consented to such disposition of the insurance proceeds.
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