A-7866, MARCH 12, 1925, 4 COMP. GEN. 752

A-7866, MARCH 12, 1925, 4 COMP. GEN. 752

ESTATES OF DECEDENTS - PENSION CHECKS OF INMATES OF NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS THE DRAWING OF A CHECK BY THE TREASURER OF A NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS UPON MONEY HELD BY HIM IN ACCORDANCE WITH LAW FOR PENSIONERS, INMATES OF THE HOME, AND THE DELIVERY OF SUCH CHECK TO THE PENSIONER DOES NOT CHANGE THE PROCEEDS THEREOF FROM PENSION MONEY TO ASSETS OF THE ESTATE OF THE PENSIONER, WHERE THE PENSIONER DIED SUBSEQUENT TO RECEIPT OF THE CHECK WITHOUT HAVING CASHED IT. THE AMOUNT REPRESENTED BY SUCH CHECK WILL, UNLESS CLAIMED BY A WIDOW, MINOR CHILD, OR DEPENDENT PARENT OF THE INMATE WITHIN FIVE YEARS FROM DATE OF HIS DEATH, BECOME THE PROPERTY OF THE HOME.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 12, 1925:

THERE ARE BEFORE THIS OFFICE FOR PROPER DISPOSITION 16 PENSION CHECKS DESCRIBED BELOW, EACH FOR $50, DRAWN TO THE ORDER OF DAVID J. MORRISON, NOW DECEASED, APPARENTLY BY THE TREASURER OF THE PACIFIC BRANCH OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, OF WHICH HOME THE PENSIONER WAS AN INMATE AT THE TIME OF HIS DEATH, NOVEMBER 25, 1924, SAID CHECKS HAVING BEEN FORWARDED BY AMY MORRISON GHENT, EXECUTRIX OF THE WILL OF THE DECEASED PENSIONER, REQUESTING PAYMENT OF THE PROCEEDS THEREOF.

THE CHECKS IN QUESTION ARE NUMBERED, DATED, AND DRAWN AS FOLLOWS:

TABLE

NUMBER DATE DRAWER SYMBOL

13250 NOV. 18, 1922 GEO. T. BAGGART 26076

16272 DEC. 18, 1922 " " " "

19181 JAN. 18, 1923 " " " "

22214 FEB. 20, 1923 " " " "

25383 MAR. 19, 1923 " " " "

43352 SEPT. 18, 1923 " " " "

44986 OCT. 18, 1923 " " " "

47995 NOV. 20, 1923 " " ""

54116 JAN. 18, 1924 " " " "

0062904 APR. 17, 1924 " " " "

0065731 MAY 19, 1924 " " " "

0069044 JUNE 17, 1924 " " " "

72425 JULY 17, 1924 "" " "

75178 AUG. 18, 1924 " " " "

80742 OCT. 17, 1924 " " " "

83490 NOV. 17, 1924 " " " "

THE FIRST 15 OF THE CHECKS LISTED HAVE BEEN MUTILATED TO VARYING DEGREES. THE MUTILATION CONSISTS PRINCIPALLY IN THE DRAWER'S NAME BEING TORN OR CUT OFF, MAKING IT IMPOSSIBLE IN MOST CASES TO IDENTIFY EITHER THE NAME OR THE SYMBOL NUMBER OF THE PAYING OFFICER. THE FIRST FIVE BEAR THE SPECIAL INDORSEMENT OF THE PAYEE THEREOF "PAY TO UNCLE SAM FOR BOARD AND," WITH A NOTATION BENEATH THE SIGNATURE ON EACH SUCH INDORSEMENT INDICATING THE NUMBER OF MONTHS HE HAD BEEN IN THE HOME AT THE TIME OF RECEIPT OF THE CHECKS. THE OTHER CHECKS ARE NOT INDORSED. THE LAST CHECK DATED NOVEMBER 17, 1924, IS NEITHER INDORSED NOR MUTILATED. IT IS STATED, HOWEVER, BY THE EXECUTRIX THAT THE PAYEE DID NOT REDUCE THIS CHECK TO POSSESSION DURING HIS LIFETIME.

PENSION MONEY DUE INMATES OF NATIONAL HOMES FOR DISABLED VOLUNTEER SOLDIERS IS PAID TO THE TREASURER OR TREASURERS OF SUCH HOME IN ACCORDANCE WITH SECTION 2 OF THE ACT OF FEBRUARY 26, 1881, 21 STAT. 350, REENACTED BY THE ACT OF AUGUST 7, 1882, 22 STAT. 322, TO BE DISBURSED BY SAID TREASURER OR TREASURERS FOR THE BENEFIT OF THE PENSIONER, WITHOUT ANY DEDUCTION FOR FINES OR PENALTIES. THIS SECTION PROVIDED FURTHER THAT---

ANY BALANCE OF THE PENSION WHICH MAY REMAIN AT THE DATE OF THE PENSIONER'S DISCHARGE SHALL BE PAID TO HIM; AND IN CASE OF HIS DEATH AT THE HOME, THE SAME SHALL BE PAID TO THE WIDOW, OR CHILDREN OR IN DEFAULT OF EITHER TO HIS LEGAL REPRESENTATIVES.

THE ACT OF JULY 1, 1902, 32 STAT. 564, RESTRICTING AND LIMITING THE HEIRS AND NEXT OF KIN WHO SHALL BE ENTITLED TO RECEIVE ANY BALANCE OF PENSION MONEY DUE A DECEASED MEMBER OF A NATIONAL HOME, PROVIDES AS FOLLOWS:

HEREAFTER ANY BALANCE OF PENSION MONEY DUE A MEMBER OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS AT THE TIME OF HIS DEATH SHALL BE PAID TO HIS WIDOW, MINOR CHILDREN OR DEPENDENT MOTHER OR FATHER IN THE ORDER NAMED, AND SHOULD NO WIDOW, MINOR CHILD, OR DEPENDENT PARENT BE DISCOVERED WITHIN ONE YEAR FROM THE TIME OF THE DEATH OF THE PENSIONER, SAID BALANCE SHALL BE PAID TO THE POST FUND OF THE BRANCH OF SAID NATIONAL HOME OF WHICH THE PENSIONER WAS A MEMBER AT THE TIME OF HIS DEATH, TO BE USED FOR THE COMMON BENEFIT OF THE MEMBERS OF THE HOME UNDER THE DIRECTION OF THE BOARD OF MANAGERS, SUBJECT TO FUTURE RECLAMATION BY THE RELATIVES HEREINBEFORE DESIGNATED, UPON APPLICATION FILED WITH THE BOARD OF MANAGERS WITHIN FIVE YEARS AFTER THE PENSIONER'S DEATH.

THE PENSION MONEYS PAID BY THE DISBURSING CLERK FOR THE PAYMENT OF PENSIONS TO THE TREASURER OF A BRANCH OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS ARE DEPOSITED BY SAID TREASURER IN THE TREASURY OF THE UNITED STATES AND CARRIED IN A SPECIAL DEPOSIT ACCOUNT TO BE DISBURSED FOR THE BENEFIT OF THE PENSIONER AS PROVIDED IN THE ACTS OF 1881 AND 1882, SUPRA. IT APPEARS TO BE THE USUAL PRACTICE FOR ALL OR A PART OF THE AMOUNT OF THE PENSION TO BE TURNED OVER TO THE PENSIONER EACH MONTH EITHER IN CASH OR BY CHECK DRAWN BY THE TREASURER OF THE HOME AGAINST HIS SPECIAL DEPOSIT ACCOUNT.

CHECKS THUS DRAWN BY A TREASURER OF A NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS ARE ESSENTIALLY DIFFERENT FROM CHECKS DRAWN BY THE DISBURSING CLERK FOR THE PAYMENT OF PENSIONS, AND THE LAWS RELATING TO THE ONE CASE ARE NOT APPLICABLE TO THE OTHER. IN CASES WHERE A PENSION CHECK IS DRAWN DIRECT TO THE PENSIONER WITHOUT THE EXECUTION OF A VOUCHER, IN ACCORDANCE WITH THE ACT OF AUGUST 17, 1912, 37 STAT. 312, IT HAS BEEN HELD THAT THE DELIVERY OF THE CHECK IS THE PIVOTAL FACT WHICH CHANGES THE CHARACTER OF THE PROCEEDS OF THE CHECK FROM ACCRUED PENSION TO ASSETS OF THE PENSIONER'S ESTATE. 19 COMP. DEC. 423; ID. 529; 4 COMP. GEN. 310. THIS ACT, HOWEVER, SPECIFICALLY PROVIDES IN SECTION 6 THAT NOTHING THEREIN SHALL BE CONSTRUED AS AMENDING OR REPEALING THAT PORTION OF THE ACT OF AUGUST 7, 1882, 22 STAT. 322, CITED SUPRA, CONCERNING THE PAYMENT OF PENSIONS DUE INMATES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, AND THEREFORE HAS NO APPLICATION TO CHECKS DRAWN BY A TREASURER OF A BRANCH OF SAID HOME PAYABLE FROM PROCEEDS OF PENSION CARRIED IN HIS SPECIAL DEPOSIT ACCOUNT.

AT THE TIME OF HIS ADMISSION IN THE HOME THE PENSIONER ENTERS INTO AN AGREEMENT, THE PROVISIONS OF WHICH ARE OUTLINED IN THE ACT OF JUNE 25, 1910, 36 STAT. 736, PROVIDING AS FOLLOWS:

HEREAFTER THE APPLICATION OF ANY PERSON FOR MEMBERSHIP IN THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS AND THE ADMISSION OF THE APPLICANT THEREUNDER SHALL BE AND CONSTITUTE A VALID AND BINDING CONTRACT BETWEEN SUCH APPLICANT AND THE BOARD OF MANAGERS OF SAID HOME, AND ON THE DEATH OF SAID APPLICANT WHILE A MEMBER OF SUCH HOME, LEAVING NO HEIRS AT LAW, NOR NEXT OF KIN, ALL PERSONAL PROPERTY OWNED BY SAID APPLICANT AT THE TIME OF HIS DEATH, INCLUDING MONEY OR CHOSES IN ACTION HELD BY HIM AND NOT DISPOSED OF BY WILL, WHETHER SUCH PROPERTY BE THE PROCEEDS OF PENSIONS OR OTHERWISE DERIVED, SHALL VEST IN AND BECOME THE PROPERTY OF SAID BOARD OF MANAGERS FOR THE SOLE USE AND BENEFIT OF THE POST FUND OF SAID HOME, THE PROCEEDS TO BE DISPOSED OF AND DISTRIBUTED AMONG THE SEVERAL BRANCHES AS MAY BE ORDERED BY SAID BOARD OF MANAGERS, AND THAT ALL PERSONAL PROPERTY OF SAID APPLICANT SHALL, UPON HIS DEATH, WHILE A MEMBER, AT ONCE PASS TO AND VEST IN SAID BOARD OF MANAGERS, SUBJECT TO BE RECLAIMED BY ANY LEGATEE OR PERSON ENTITLED TO TAKE THE SAME BY INHERITANCE AT ANY TIME WITHIN FIVE YEARS AFTER THE DEATH OF SUCH MEMBER. * * *

THE PROVISIONS OF THIS ACT OUTLINE IN SPECIFIC LANGUAGE THE PROCEDURE TO BE FOLLOWED IN THE DISPOSITION OF PERSONAL EFFECTS LEFT BY DECEASED PENSIONERS DYING AT A BRANCH OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, BUT IT HAS BEEN HELD THAT SAID ACT DOES NOT AUTHORIZE THE PAYMENT OF PENSION MONEY--- THAT IS, MONEY HELD BY THE TREASURER OR IN THE POSSESSION OF THE INMATE AT THE TIME OF HIS DEATH WHICH CAN BE IDENTIFIED AS PROCEEDS OF PENSION--- TO ANY PERSON OTHER THAN A WIDOW, MINOR CHILDREN, OR DEPENDENT PARENT. 19 COMP. DEC. 388. IN OTHER WORDS, ONLY A WIDOW, MINOR CHILD, OR DEPENDENT PARENT CAN BE REGARDED AS A "LEGATEE OR PERSON ENTITLED TO TAKE" PENSION MONEY "BY INHERITANCE" WITHIN THE MEANING OF THE PROVISION LAST ABOVE QUOTED. AND, AS HEREINBEFORE INDICATED, THIS RULE APPLIES TO PENSION MONEY THAT HAD BEEN PAID TO THE INMATE BY THE TREASURER OF THE HOME AS WELL AS TO PENSION MONEY IN THE CUSTODY OF THE TREASURER. IN THE PRESENT CASE, THE CHECKS NOT HAVING BEEN CASHED BY THE INMATE, THE MONEY REPRESENTED THEREBY WAS PENSION MONEY IN THE CUSTODY OF THE TREASURER OF THE HOME AT THE TIME OF THE DEATH OF THE INMATE AND THEREFORE, UNDER THE STATUTES HEREINBEFORE CITED, WILL BECOME THE ABSOLUTE PROPERTY OF THE HOME UNLESS CLAIMED BY THE WIDOW, MINOR CHILD, OR DEPENDENT PARENT OF THE INMATE WITHIN FIVE YEARS FROM DATE OF HIS DEATH.

THE MUTILATION OF 15 OF THE CHECKS IMPAIRING THEIR NEGOTIABILITY AND THE SPECIAL INDORSEMENT ON 5 OF THEM, AS INDICATED ABOVE, SHOW A CLEAR INTENTION ON THE PART OF THE PENSIONER NOT TO ACCEPT THE SAME AND WOULD PRECLUDE ANY PRESUMPTION OF PAYMENT TO HIM OF THE AMOUNTS REPRESENTED THEREBY. REGARDLESS OF HIS INTENTION, HOWEVER, AND EVEN HAD THE CHECKS BEEN CASHED, IF THE MONEYS IN HIS POSSESSION AT THE TIME OF HIS DEATH COULD BE IDENTIFIED AS THE PROCEEDS OF SAID CHECKS, THEY WOULD HAVE TO BE REGARDED AS ASSETS DERIVED FROM PENSION AND DISPOSED OF AS PENSION MONEY.

THE 16 CHECKS SUBMITTED CAN NOT BE CONSIDERED AS HAVING BECOME A PART OF THE ESTATE OF THE DECEASED PENSIONER AND ACCORDINGLY THEY WILL BE CANCELED AND THE AMOUNT THEREOF TAKEN UP AS A CHARGE IN THE TREASURER'S ACCOUNT AND DISPOSED OF IN ACCORDANCE WITH EXISTING LAWS GOVERNING THE DISPOSITION OF ANY BALANCE OF PENSION MONEY DUE A MEMBER OF A NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS AT THE TIME OF HIS DEATH.

THE CLAIM OF THE EXECUTRIX FOR PAYMENT OF THE AMOUNT REPRESENTED BY THESE CHECKS MUST BE AND IS DISALLOWED.