Short

This case involves a contest over the proceeds of a National Service Life Insurance Policy, and raises the question as to whether Sec. 8.91(b) of the Regulations of the Veterans Administration, 13 F.R. 7108 , 38 C.F.R. 8.91(b) (1949) is a valid regulation, is consistent, with the statute concerning National Service Life Insurance, and is necessary or appropriate to carry out the purposes of such statute.

The facts are not in dispute and the case was tried below on a stipulated record. A memorandum opinion, Short v. United States, D.C.Cal.1954, 123 F.Supp. 414, 416 , constituted the findings and conclusions, and judgment was entered thereon.

Irving Short, while in the United States Army in World War II, was issued a National Service Life Insurance policy for |10,000 effective January 1, 1943. On August 25, 1949, the insured changed the Beneficiary of his policy so that thereafter his mother, Ethel G. Short, was the principal beneficiary and his brother James Harvey Short and the Berkshire Industrial Farm, a charitable institution, were the first contingent beneficiaries, each to the extent of $5000. However, at no time did the insured select any method of payment to be made to…

(dissenting).

There is no question here of any choice as matter of policy between James Harvey Short, individually and as Administrator of the deceased soldier on the one hand, and Margaret D. Short, Administratrix of the estate of Ethel G. Short, his mother. The Veterans Administration; as. a stakeholder, has unwarrantably weighted the scales in favor, of the former and against the latter. The agency has also unwarrantably taken a violent part in this litigation, in which, as a supposed stakeholder, it should have been neutral.

These actions were taken not in furtherance of justice, but in order to defend its assumption of power in adopting a regulation reinstating the terms of a statute which Congress had just repealed. The excellent opinion of Hon. Edward Murphy, United States District Judge for the Northern District of California, Short v. United States, 123 F. Supp. 414 , makes this stretching of its authority perfectly clear. The majority of this panel seems to admit that words must be interpolated into the present statute to permit the agency to adopt this nullifying regulation.

Although it has nothing to do with the merits, the agency seems to have adopted this…