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B-136946, OCTOBER 14, 1958, 38 COMP. GEN. 304

B-136946 Oct 14, 1958
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DETERMINATION WAS MADE BY THE DEPARTMENT OF THE ARMY UNDER PUBLIC LAW 85-217. THAT THE ESTATE IS DUE THE GROSS AMOUNT OF $2. A POWER OF ATTORNEY IS GENERALLY HONORED TO THE POINT OF ISSUING A CHECK TO THE CLAIMANT AND MAILING SUCH CHECK TO THE ATTORNEY AS A FEE COMPUTED ON THE GROSS AMOUNT OF THE PAYMENT AT 10 PERCENT OF THE FIRST $1. 000 AND 7 PERCENT OF THE REMAINDER AND THAT A SECOND CHECK FOR THE CLAIMANT IS ISSUED FOR THE NET AMOUNT DUE LESS THE ATTORNEY FEE AMOUNT. B. IF THE ABOVE ANSWER IS AFFIRMATIVE. IS THE AMOUNT OF SUCH FEE RESTRICTED TO THE AMOUNT PERMITTED BY THE PHILIPPINE LAW (5 PERCENT RATHER THAN 10 PERCENT OF THE FIRST $1. AUTHORIZES PAY AND ALLOWANCES TO CERTAIN PHILIPPINE SCOUTS WHO WERE CAPTURED BY THE ENEMY AND PAROLED DURING WORLD WAR II.

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B-136946, OCTOBER 14, 1958, 38 COMP. GEN. 304

MILITARY PERSONNEL - DECEDENTS' ESTATES - MISSING PERSONS ACT CLAIMS' PHILIPPINE SCOUTS - ATTORNEY'S FEES IN THE SETTLEMENT OF AN AMOUNT DUE UNDER THE MISSING PERSONS ACT ON ACCOUNT OF THE DEATH OF A PHILIPPINE SCOUT WHO DIED PRIOR TO JANUARY 1, 1956, WHILE DOMICILED IN THE PHILIPPINES, THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946 AND SECTION 58 OF TITLE 78, PHILIPPINE ANNOTATED LAWS, REQUIRE THAT THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES IN THE PHILIPPINES BE RECOGNIZED AS THE LAWFUL CLAIMANT AND A POWER OF ATTORNEY FROM THE WIDOW DOES NOT CONSTITUTE AUTHORITY TO SEND ANY AMOUNT IN CASE OF THE ATTORNEY OR TO PAY THE ATTORNEY A FEE FOR SERVICES RENDERED IN FILING THE APPLICATION FOR THE AMOUNT DUE.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, OCTOBER 14, 1958:

BY FIRST ENDORSEMENT DATED JULY 28, 1958, THE OFFICE CHIEF OF FINANCE FORWARDED TO US YOUR LETTER DATED JULY 8, 1958, WITH ENCLOSURES, RELATIVE TO THE CLAIM FOR ARREARS OF PAY DUE THE ESTATE OF ISIDOR LAGNAO, DECEASED, AS A MEMBER OF THE PHILIPPINE SCOUTS, UNDER PUBLIC LAW 85-217, APPROVED AUGUST 29, 1957, 71 STAT. 491, 50 U.S.C. APP. 1001. IN CONNECTION WITH THE ISSUANCE OF A CHECK OR CHECKS UNDER A VOUCHER SUBMITTED TO YOU FOR PAYMENT, YOUR LETTER, FORWARDED UNDER D.O. NUMBER 362, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION ON TWO QUESTIONS CONCERNING THE RESTRICTION ON ATTORNEYS' FEES CONTAINED IN SUBSECTION 2 (C) OF THE MISSING PERSONS ACT, AS ADDED BY THE ABOVE STATUTE, 50 U.S.C. APP. 1002 (C).

YOU STATE THAT UPON PETITION OF MRS. SOFIA NACALABAN, WIDOW, ON FEBRUARY 4, 1958, DETERMINATION WAS MADE BY THE DEPARTMENT OF THE ARMY UNDER PUBLIC LAW 85-217, THAT ENTITLEMENT TO PAY AND ALLOWANCES EXISTS IN THE ESTATE OF THE DECEDENT FROM DECEMBER 10, 1941, TO MARCH 26, 1945, AND THAT THE ESTATE IS DUE THE GROSS AMOUNT OF $2,514.68, REPRESENTING PAY AND ALLOWANCES FROM MAY 16, 1942, TO MARCH 26, 1945, PERIOD OF NONPAYMENT. THERE APPEARS TO BE FOR DEDUCTION FROM SUCH AMOUNT RETIRED PAY FOR SUCH PERIOD IN THE SUM OF $1,488.38 AND AN UNSATISFIED INDEBTEDNESS OF $25.50, LEAVING A NET BALANCE OF $1,000.80.

IT FURTHER APPEARS FROM THE RECORD AND THE INFORMATION FURNISHED THAT A CLAIM FOR THE AMOUNT DUE HAS BEEN RECEIVED FROM THE JUDGE ADVOCATE GENERAL, ARMED FORCES OF THE PHILIPPINES, AS ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, A PHILIPPINE CITIZEN WHO DIES ON JULY 1, 1950; ALSO, THAT ON JANUARY 11, 1957, THE WIDOW EXECUTED A POWER OF ATTORNEY IN FAVOR OF MR. LAVERN R. DILWEG, ATTORNEY AT LAW, TO RECOVER AMOUNTS DUE THE ESTATE AS A RESULT OF ANY LAWS ENACTED BY THE UNITED STATES TO AMEND THE MISSING PERSONS ACT.

YOU STATE THAT, UNDER CURRENT PROCEDURES EFFECTED BY THE FINANCE DEPARTMENT FOR SIMILAR CASES, A POWER OF ATTORNEY IS GENERALLY HONORED TO THE POINT OF ISSUING A CHECK TO THE CLAIMANT AND MAILING SUCH CHECK TO THE ATTORNEY AS A FEE COMPUTED ON THE GROSS AMOUNT OF THE PAYMENT AT 10 PERCENT OF THE FIRST $1,000 AND 7 PERCENT OF THE REMAINDER AND THAT A SECOND CHECK FOR THE CLAIMANT IS ISSUED FOR THE NET AMOUNT DUE LESS THE ATTORNEY FEE AMOUNT.

UNDER THESE CIRCUMSTANCES, IN THE PRESENCE OF A CLAIM ASSERTED BY THE JUDGE ADVOCATE GENERAL, ARMED FORCES OF THE PHILIPPINES, YOUR LETTER PRESENTS THE FOLLOWING QUESTIONS FOR DECISION:

A. MAY ANY ATTORNEY RECEIVE A FEE UNDER SECTION 2 (C) OF THE ACT OF AUGUST 29, 1957 (SECTION 2 (C) OF THE MISSING PERSONS ACT AS ADDED BY THE ACT OF AUGUST 29, 1957), 71 STAT. 491?

B. IF THE ABOVE ANSWER IS AFFIRMATIVE, IS THE AMOUNT OF SUCH FEE RESTRICTED TO THE AMOUNT PERMITTED BY THE PHILIPPINE LAW (5 PERCENT RATHER THAN 10 PERCENT OF THE FIRST $1,000 AND 7 PERCENT OF THE REMAINDER?

SUBSECTION 2 (B) OF THE MISSING PERSONS ACT, AS ADDED BY THE 1957 AMENDMENT, 50 U.S.C. APP. 1002 (B), AUTHORIZES PAY AND ALLOWANCES TO CERTAIN PHILIPPINE SCOUTS WHO WERE CAPTURED BY THE ENEMY AND PAROLED DURING WORLD WAR II, AND CONTAINS A PROVISO RESTRICTING CONTRACTS THEREAFTER ENTERED INTO FOR FEES FOR SERVICES RENDERED IN FILING APPLICATIONS FOR THE PAY AND ALLOWANCES THERE AUTHORIZED.

SUBSECTION (C) PROVIDES THAT:

(C) NO PART OF ANY AMOUNT PAID ON ANY CLAIM FILED PURSUANT TO SUBSECTION (B) OF THIS SECTION IN EXCESS OF 10 PERCENTUM OF THE FIRST $1,000 SO PAID ON SUCH CLAIM, AND 7 PERCENTUM OF THE AMOUNT SO PAID OVER $1,000, SHALL BE PAID OR DELIVERED TO OR RECEIVED BY ANY AGENT OR ATTORNEY ON ACCOUNT OF SERVICES RENDERED IN CONNECTION WITH ANY SUCH CLAIM * * *.

THE SETTLEMENT OF THE ACCOUNTS OF DECEASED PERSONNEL OF THE ARMY WHO DIED PRIOR TO JANUARY 1, 1956, IS GOVERNED BY THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED BY SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 10 U.S.C. 2771, WHICH PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE AMOUNT FOUND DUE MAY BE ALLOWED TO THE DECEDENT'S WIDOW, WIDOWER, OR LEGAL HEIRS IN THE ORDER OF PRECEDENCE SPECIFIED. THE CLAIM OF A DULY APPOINTED LEGAL REPRESENTATIVE, THAT IS, AN EXECUTOR OR ADMINISTRATOR, TAKES PRECEDENCE OVER CLAIMS BY THE WIDOW, WIDOWER, OR LEGAL HEIRS AND, HENCE, WHEN A CLAIM IS PRESENTED BY SUCH LEGAL REPRESENTATIVE PAYMENT OF ANY AMOUNT DUE THE ESTATE IS AUTHORIZED TO BE MADE ONLY TO THAT OFFICIAL.

PHILIPPINE REPUBLIC ACT NO. 136, SECTION 1, AS AMENDED BY REPUBLIC ACT NO. 209, SECTION 2, NOW CONTAINED IN SECTION 58 OF TITLE 78 PHILIPPINE ANNOTATED LAWS, PROVIDES, AMONG OTHER THINGS, THAT MONIES UNDER THE LAWS OF THE UNITED STATES AND OF THE PHILIPPINES DUE TO DECEASED OR INCOMPETENT FILIPINOS WHO WERE MEMBERS OF THE UNITED STATES ARMY, UNITED STATES NAVY, OR THE PHILIPPINE SCOUTS, THE DECEASED BEING DOMICILED IN THE PHILIPPINES AT THE TIME OF THEIR DEATH, SHALL BE ADMINISTERED BY THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES OF THE PHILIPPINES, OR HIS DULY AUTHORIZED REPRESENTATIVES.

UNDER THE ABOVE STATUTES, WHERE THE DECEASED MEMBER WAS A CITIZEN OR DOMICILIARY OF THE PHILIPPINES AT TIME OF DEATH, OCCURRING BEFORE JANUARY 1, 1956, THE LAW REQUIRES THAT THE JUDGE ADVOCATE GENERAL, AS ADMINISTRATOR OF THE ESTATE, BE RECOGNIZED AS THE LAWFUL CLAIMANT AND IN SUCH CASES A POWER OF ATTORNEY FROM THE WIDOW OR OTHER HEIR CONSTITUTES NO AUTHORITY TO SEND ANY AMOUNT IN CARE OF SUCH ATTORNEY. RATHER, PAYMENT OF AMOUNTS DUE THE ESTATES OF DECEASED FILIPINOS WHO DIED PRIOR TO JANUARY 1, 1956, DOMICILED IN THE PHILIPPINES, ARE REQUIRED TO BE MADE TO THE NAMED PHILIPPINE OFFICIAL AND ADVICE OF SUCH SETTLEMENT SHOULD BE FURNISHED TO OTHER CLAIMANTS OR THEIR REPRESENTATIVES IN ORDER THAT THEY MAY PRESENT THEIR CLAIMS TO THE ADMINISTRATOR FOR CONSIDERATION.

THEREFORE, IN ANSWER TO QUESTION A, IT MUST BE CONCLUDED THAT IN THE PRESENCE OF A DEMAND FROM THE JUDGE ADVOCATE GENERAL, ARMED FORCES OF THE PHILIPPINES, FOR AN AMOUNT DUE UNDER THE MISSING PERSONS ACT, AS AMENDED, IN THE CASE OF A PHILIPPINE SCOUT WHO DIED BEFORE JANUARY 1, 1956, NO PAYMENT MAY BE MADE TO AN ATTORNEY AS HIS FEE UNDER A POWER OF ATTORNEY EXECUTED BY THE WIDOW OR HEIR OF THE DECEDENT.

SINCE THE ANSWER TO QUESTION A IS IN THE NEGATIVE, NO ANSWER TO QUESTION B IS REQUIRED AT THIS TIME.

THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE RETURNED FOR FURTHER ADMINISTRATIVE ACTION IN ACCORDANCE WITH THIS DECISION.

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