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3 F.(20) 439 drawing the decree, it may be corrected by HUNT, Circuit Judge. Young Fat, a agreement before the entry of the formal de- Chinese boy, appeals from an order denycree of this court. If no agreement can ing his petition for writ of habeas corpus. be reached, the court will consider the mat-' He sought admission into the United States ter on motion, after due notice to the par- as a citizen under section 1993, Revised Statties interested. With this reservation the utes (Comp. St. § 3947); his father, Young decree of the District Court is affirmed, the Tip, being a native-born citizen. The boy petitions to superintend and revise are dis- arrived from China in San Francisco on missed, and the causes remanded to the Dis- May 30, 1923, and, after hearing, the Board trict Court for further proceedings.

of Special Inquiry decided the relationship Review cases, Nos. 2253, 2255, and 2256, alleged was not satisfactorily established, dismissed.

and that the boy should be excluded. Upon Appeal cases, Nos. 2287, 2288, and 2289, appeal to the Secretary of Labor, a similar affirmed.

conclusion was reached, and the appeal dis

missed. Supplemental Opinion.

The main contention is that there is not PER CURIAM. Since the filing of the only no evidence to support the decision of original opinion of this court in these caus- the executive authorities, but that there is es, the parties interested have agreed as to convincing evidence that the applicant is the the alleged inconsistency in the opinion of son of Young Tip. The boy is said to have the District Court and its decree. The de- been born January 3, 1915, and to have cree of the District Court is therefore af- reached his eighth birthday January 3, 1923. firmed.

The alleged father left for China November 11, 1913, and returned in June, 1915.

The medical examiner at Angel Island

stated that, after a careful examination of YOUNG FAT V. NAGLE, Com' of

physical characteristics, his opinion was that Immigration.

the boy was within one year, either way, of (Circuit Court of Appeals, Ninth Circuit. Jan 12 years. The government inspectors themuary 26, 1925.)

selves differed somewhat in their opinions.

One said the boy looked to be about 12; anNo. 4263.

other thought he was between 12 and 14; Aliens Om32(13)–Order of exclusion, made on

two put his age at 11; another, about 9. conflicting evidence, held not reviewable. The members of the Board of Special In

Where opinions of medical examiner, phy- quiry also varied somewhat in their opinions. sicians, and government inspectors as to age One estimated the boy's age at 12 or 13; anof Chinese boy, seeking admission as son of ɔther put it at 12. Three physicians, priAmerican citizen under Rev. St. § 1993 (Comp. St. § 3947), were conflicting, decision of Board sately employed, certified that in respect to of Inquiry, refusing admission on ground that height and weight they were in accord with relationship was not satisfactorily established, the boy's claim. They found an absence of will not be disturbed by courts.

certain changes indicative of approaching

puberty, but that most of the secondary Appeal from the District Court of the teeth had erupted. They said, except for United States for the Southern Division of dentition, the factors contribute to the reathe Northern District of California; John sonableness of the applicant's claim of age, S. Partridge, Judge.

and that precocity in dental eruption occurs Petition for writ of habeas corpus by with sufficient frequency "to warrant the Young Fat against John D. Nagle, as Com- suggestion of such a possibility in this inmissioner of Immigration, Port of San stance." Francisco. From an order denying petition,

The several discrepancies in the estimates petitioner appeals. Affirmed.

of the age of the boy are noticeable; but Geo. A. McGowan, of San Francisco, Cal., conclusion that there was no substantial sup

they are from being such as to justify for appellant.

Sterling Carr, U. S. Atty., and T. J. Sher- port for the opinion that the boy was well idan, Asst. U. S. Atty., both of San Fran- within the rule of our recent decision in

over 812 years old. The case is squarely cisco, Cal., for appellee.

Wong Fook Ngoey v. Nagle, 300 F. 323, Before GILBERT, HUNT, and RUD- where it was held that, the case being one of KIN, Circuit Judges.

conflicting evidence, upon which members of the board have exercised their judgment, it of the referee, and has been extensively will not be disturbed by the courts. See, argued by brief for both the bankrupt and also, Fong Lim v. Nagle, 2 F.(20) 971, de the trustee. cided January 5, 1925.

W. S. Whiting was adjudicated a bankThe order appealed from is affirmed. rupt on the 9th of April, 1924. At the time

of the adjudication the bankrupt had 10

life insurance policies, totaling $72,500. In re WHITING.

The cash surrender value and loan value of (District Court, W. D. North Carolina, at these various policies on the aforementioned Greensboro. January 1, 1925.)

date was $18,415.78. In all of said policies 1. Insurance 586–Beneficiary has no “vest. Carolina L. Whiting, wife of the said W. S. ed Interest” where beneficiary may be changed Whiting, is the beneficiary. In five of said at will of insured.

policies she was named as beneficiary when Where by the terms of a life policy the the policies were issued. In the other five beneficiary may be changed at the will of the the estate of the bankrupt was named as insured, the beneficiary named has no "vested interest” therein, which means a future inter. beneficiary, but the beneficiaries in these est not dependent on an uncertain period or policies were changed more than four event, or a fixed present right of future en- months before the bankruptcy, and the said joyment.

Carolina L. Whiting was substituted as (Ed. Note.-For other definitions, see Words beneficiary; so at the time of the bankruptand Phrases, First and Second Series, Vested

cy the said Carolina L. Whiting was the Interest.)

beneficiary in all of the policies. All of 2. Bankruptcy Om 396(3)-Constitutional pro- said policies contained a clause permitting

vision held not to affect rights in insurance the change of beneficiary at the will of the policies. Const. N. C. art. 10, $ 7, providing that, on

insured, W. S. Whiting. the death of a husband leaving life insurance

When the bankrupt filed his schedule, he payable to his wife and family, it shall be ex- listed these insurance policies and claimed empt from his debts, has no application to the them as exempt under the provisions of the case of a living husband, who has been ad- Constitution and laws of North Carolina. judged bankrupt, and who holds policies payable to his wife, and does not affect the right At the first meeting of the creditors the to such policies as between the wife and his bankrupt was permitted to amend his schedcreditors.

ule, so as to claim the exemption of $500 3. Bankruptcy cm 143(12)—Insurance policies of personal property allowed by the Constiheld to vest in trustee.

tution of North Carolina. The question now C. S. N. C. & 6464, providing that every is: Did these policies pass to the trustee, policy of life insurance made payable to a married woman inures to her separate use and and laws of North Carolina? The trustee

or are they exempt under the Constitution benefit, does not give a wife, during the lifetime of her husband, a vested interest in poli- held that the five policies originally naming cies held by him and payable to her, where by Carolina L. Whiting as beneficiary did not the terms of the contracts he may change the pass to the trustee, and that the other polbeneficiaries at will, and on his bankruptcy, icies did so pass. From this holding both such policies, if they have a surrender value payable to him, pass to his trustee, under bankrupt and trustee asked that the ruling Bankruptcy Act, § 70a (5) being Comp. St. § of the referee be reviewed by this court. 9654, as property which he could have trans- So the question is whether or not, under the ferred.

Bankruptcy Law and the laws and ConstiIn Bankruptcy. In the matter of W. S. tution of North Carolina, the trustee has & Whiting, bankrupt. On review of order of right to take charge of these policies and referee. Reversed in part.

secure on them the $18,415.78 and apply

it Lee F. Miller, of Johnson City, Tenn., and to the debts of the bankrupt. Duff Merrick and Francis J. Heazel, both

Leaving out of consideration any referof Asheville, N. C., for petitioner.

ence to state exemptions, it is clear that unSquires & Whisnant, of Lenoir, N. C., for der section 70a of the Bankruptcy Law trustee.

(Comp. St. § 9654) the trustee would be

vested by operation of law with the title WEBB, District Judge. This cause came of the bankrupt as of the date he was adon for hearing upon petition for review fil- judicated, because the cash surrender value ed by the trustee and the bankrupt in re- and the loan value of the ten insurance polgard to policies of insurance on the life icies under the provisions named in these of the bankrupt, and the conclusions of law policies are property which the bankrupt

3 F.(20) 440 could have transferred. I believe this prop- have a vested interest in the policy. To hold osition is not controverted. It will be not- that the beneficiary of such policy has a ed that the bankrupt has not and does not vested interest would be tantamount to declaim exemption of these policies in his own stroying the "changed beneficiary" proviinterest, and, if he did so claim, his inter- sions of the policy itself. est would be limited in amount to $500 un- In Greenberg's Case (C. C. A.) 271 F. der the Constitution of North Carolina. 259, 20 A. L. R. 253, Judge Hough, speak

The case of Cohn v. Malone, Trustee of ing for the Circuit Court of Appeals of the Cohn, 248 U. S. 450, 39 S. Ct. 141, 63 L. Second Circuit, says: "The beneficiary in a Ed. 352, holds (quoting syllabus) that "the life insurance policy, who may at any time cash surrender value of a life insurance pol- be removed from the benefited position by icy,

payable to specified persons, the insured and against the beneficiary's with a right in the insured to change the will, cannot have a vested interest." Inbeneficiaries, is assets subject to distribu- deed, this particular point has been passed tion under the Bankruptcy Act."

upon by our own Circuit Court of Appeals Mr. Justice McKenna, writing the opin- in the case of Reid v. Durboraw (C. C. A.) ion of the in Cohen, Trustee, v. Sam- 272 F. 99, where Judge Woods, speaking uels, 245 U. S. 53, 38 S. Ct. 37, 62 L. Ed. for the court, says: “It is true that one 143, says: “The declaration of subdivision named as beneficiary has no vested inter3 is that 'powers which he might have ex- est and is not entitled to notice of change; ercised for his own benefit' 'shall in turn be that the right to change a beneficiary is a . vested in the trustee, and there is vested in property right of the assured, which in the him as well all property that the bankrupt case of insolvency the court can require him could transfer or which by judicial process to exercise in favor of his creditors"-citcould be subjected to his debts, and espe- ing Cohen v. Samuels, 245 U. S. 50, 38 S. cially as to insurance policies which have Ct. 36, 62 L. Ed. 143. a cash surrender value payable to himself, The case of Lanier v. Insurance Co., 142 his estate or personal representative. It is N. C. 14, 54 S. E. 786, is presented to the true the policies in question here are not so court by counsel for the bankrupt as settling payable, but they can be or could have been this question against the views just expressso payable at his own will and by simple ed. However, the point in that case was as declaration. Under such conditions to hold to the sufficiency of the evidence of the that there was nothing of property to vest. plaintiff to justify a verdict in her behalf. in a trustee would be to make an insurance The question of vested interest in à policy policy a shelter for valuable assets, and, it containing the "changed beneficiary clause" might be, a refuge for fraud.”

did not arise at all. The wife and plainIn Burlingham v. Crouse, 228 U. S. 459, tiff was the beneficiary of the insurance pol33 S. Ct. 564, 57 L. Ed. 920, 46 L. R. A. icy, which was taken out by the husband, (N. S.) 148, the court said: “It was the and who turned it over to his wife, and she purpose of Congress to pass to the trustee kept it in her trunk until the husband's that sum which was available to the banks death. Soon after the death of her husrupt at the time of bankruptcy as a cash band the policy disappeared from her trunk asset, otherwise to leave to the insured the and mysteriously turned up in the possesbenefit of his life insurance."

sion of the defendant insurance company, [1] So it is clear that, unless the general and the sole question which the court passed exemption laws of the state withhold these upon in that case was the sufficiency of the policies from the trustee, there would be no evidence as presented by the plaintiff to jusdoubt about the title passing immediately tify the jury in finding a verdict in her beto the trustee. Counsel for the bankrupt, half. It is true that in the body of the however, strenuously maintains in his brief opinion there is a separate paragraph, that the wife in this case had a vested in- not connected with the issue under discusterest in all of these policies. This position, sion at all, in which the court did say: "The however, is decidedly untenable, in view of general rule is that the beneficiary of an the great weight of authority holding that in ordinary life policy has a vested interest all "changed beneficiary policies" no bene- and acquires the entire property interest in ficiary has a vested interest. The said terms the contract the moment the policy is exof the policy giving the insured the right to ecuted and delivered”—citing Bank v. change the beneficiary at will absolutely Hume, 128 U. S. 195, 9 S. Ct. 41, 32 L. Ed. negative the idea that the beneficiary can 370.

A careful perusal of Bank v. Hume, how- "future interests that are not dependent on ever, will show that it does not support the an uncertain period or event; a fixed presobiter statement of the learned judge in the ent right of future enjoyment," and of Lanier Case, because in the Hume Case the course it is idle to say that a beneficiary tohusband was dead. The wife had taken out day, who may be removed to-morrow, has, insurance on her husband's life, and had or can claim to have, a vested interest. caused herself to be named as beneficiary in The case of In re Pittman, decided by that the application for the insurance and in the able and distinguished jurist, Judge H. G. policy, and the company looked to her for Connor, found reported in 275 F. 686, is citpayment of the premiums. The husband ed by the counsel for the bankrupt as setfrom time to time, although insolvent, helped tling this question in favor of the bankrupt, the wife pay some premiums, and the trus- and this court confesses that Judge Connor tee undertook to subject the premiums so has decided this question contrary to the paid by the dead bankrupt to his creditor's authorities cited and to the view of this claims, and in considering said facts in that court, and, strangely enough, he seems to case the court did use this language: “It base his decision largely upon the case of is indeed the general rule that a policy, and Lanier v. Insurance Co., cited above, and, the money to become due under it, belong, as said above, this case does not pass upon the moment it is issued, to the person or the question now before the court, and the persons named in it as the beneficiary or dictum to the effect that the beneficiary has beneficiaries, and that there is no power in & vested interest is not supported by the authe person procuring the insurance by any thority cited, to wit, Bank v. Hume. So, in act of his, or by deed or by will, to trans- my opinion, the entire question turns upon fer to any other person the interest of the the fact as to whether or not these life inperson named.” The court says in explana- surance policies are exempted by the gention of this statement that Mrs. Hume "was eral exemption laws of North Carolina. confessedly a contracting party to the pol- [2] It is claimed by the bankrupt's counicy, and therefore held that Mr. Hume, the sel that these policies are exempt under bankrupt, could not change the beneficiary these laws, and the section of the Constituin the policy, and therefore the premiums tion relied upon as exempting them is as on the policy could not be claimed by the follows: Section 7, article 10, of the Contrustee."

stitution of North Carolina provides: “The The facts in the case before us are quite husband may insure his own life for the different. Mr. Whiting made the contracts sole use and benefit of his wife and chilwith the insurance company himself, and dren, and in case of the death of the named various beneficiaries. It is not con- husband the amount thus insured shall be tended that in any of these policies Mrs. paid over to the wife and children, or to the Whiting ever applied to the company for guardian, if under age, for her or their own insurance on her husband's life, or that she use, free from all the claims of the repreever paid a single premium on any of them. sentatives of her husband or any of his credMr. Chief Justice Fuller, in the Bank- itors." Hume Case, explaining the "general rule" It is perfectly clear to the court that this referred to, limits it to the following cases section of the Constitution means simply and conditions: "Where the contract is di- that, when a husband dies leaving insurance rectly with the beneficiary,” where policies to his wife, such insurance shall not be subrun "to the person insured, but payable to ject to pay the debts of the deceased husanother having a direct pecuniary interest band. That, however, is not the case bein the life insured,” and, third, "where the fore us now. The husband, W. S. Whiting, proceeds are made to inure by positive stat- and his wife, are both living. Had Mr. utory provisions."

Whiting died before he was declared a bankIt will be seen, therefore, that neither the rupt, the wife under this section of the Lanier Case, decided by the Supreme Court Constitution would have been entitled to evof North Carolina, nor the Bank-Hume ery dollar of his insurance, free from all Case, is parallel or applicable to the case claims of her husband's creditors, and she under consideration. Indeed, it is a contra- would have had a vested interest the moment diction of terms to say that a policy con- of his death. This section of the Constitution taining the "changed beneficiary clause" can intended to provide for a wife after the possibly give a vested interest to the bene- husband and bread-winner is gone, and such ficiary. "Vested interest” means generally provisions in the various Constitutions of

3 F.(20) 440 the states are regarded generally as wise and where he has deposited these large amounts humane. It was never intended, however, of money, sign his policies, and take from that the wife should have both the insur- the insurance companies $18,000 cash surance and the bread-winner at the same time. render value and put it in his pocket, and

[3] However, the counsel insists that all then snap his fingers at his creditors and of these policies, if not exempt by this sec- laugh at the absurdity of such a law. We tion of the Constitution, are exempt by rea- would then have the anomaly of a rich son of section 6464 of the Consolidated bankrupt. I assert with confidence that the Statutes of North Carolina, which in part Legislature of North Carolina never intendreads as follows: "Every policy of life in- ed that this enactment should have such surance made payable to or for the benefit effect. of a married woman, or after its issue as- But I am admonished by counsel for the signed, transferred, or in any way made bankrupt that I should follow the decision payable to a married woman, or to any per- in Holden v. Stratton, 198 U. S. 202, 25 S. son in trust for her or for her benefit, Ct. 656, 49 L. Ed. 1018. In that case the whether procured by herself, her husband, Legislature of the state of Washington enor by any other person, and whether the acted that “the proceeds or avails of all life assignment or transfer is made by her hus- insurance shall be exempt from all liability band or by any other person, inures to her for any debt.” No one for a moment would separate use and benefit and to that of her contend that such an act of the Legislature children, if she dies in his lifetime.” of North Carolina would be constitutional,

The Legislature evidently based its right because section 10 of the Constitution of to pass this statute upon the section of North Carolina, with reference to insurance the Constitution above quoted, and, so far policies, cannot be enlarged or restricted. as it applies to the husband taking the in- The statute of Washington in the Holdensurance in behalf of his wife, the statute is Stratton Case was upheld on the ground that perfectly constitutional. But this statute the Constitution gave the Legislature the is necessarily limited by the limitations of power to enact such a law, although it was the constitutional provision, and that pro- contended that the exemption was in conflict vision contains this vital clause upon which with the Constitution of that state. That the whole section hinges, to wit, "and in legislative enactment was based upon the case of the death of the husband the amount following language in the Constitution : thus insured shall be paid over to the “The Legislature shall protect by law from wife," etc. The Legislature could not have forced sale a certain portion of the homeintended to make a contingent interest which stead and of the property of all heads of a beneficiary has in a "changed beneficiary families.” It was claimed that this lanclause" policy become a vested interest dur- guage imposed a limitation on the general ing the lifetime of the husband. If it had power of the Legislature to determine the attempted to do so, it would have failed, be- amount and character of the property which cause it would have been unconstitutional would be exempt. Chief Justice White, from two points of view: One being that quoting the Constitution of California, which there is no warrant in the Constitution of has an identical provision, said: "It has the state for such a construction of the stat- been decided that the character and amount ute; and, next, it would have been destroy- of property which shall be exempt from ing the contract in the policy itself, which execution is purely a question of legislative gives to the insured the right to change the policy.” This provision of the Washington beneficiary as often as he chooses.

Constitution, under which the Holden-StratThe Legislature never intended, in my ton Case was decided, is totally different opinion, to allow a man to insure his life from the constitutional provision with reffor the sum of, say, $72,000, payable to his erence to insurance policies in North Carowife, with a "changed beneficiary clause" in lina.

lina. In the Washington case the Constituthe policy, and then permit him to take from tion gave the Legislature the right to exhis business, and therefore from his credi- ercise “legislative policy” as to what proptors, $30,000 and pay as premiums on these erty should be exempted. It will be noted, policies, and then go into bankruptcy and also, that the insurance policy involved in have all claims of creditors wiped out against the Holden-Stratton Case did not contain him by the beneficent bankruptcy laws, the "changed beneficiary clause," but was and then, the next day after he is discharg- made payable to the wife without the right ed, let him go to the insurance companies, to change the beneficiary.

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