A-56259, AUGUST 13, 1934, 14 COMP. GEN. 115

A-56259, AUGUST 13, 1934, 14 COMP. GEN. 115

ADMINISTRATOR OF VETERANS' AFFAIRS - DISPOSITION OF PENSION PAYMENTS TO INMATES OF VETERANS' ADMINISTRATION FACILITY PENSION MONEYS PAID TO THE TREASURER OF A VETERANS' ADMINISTRATION FACILITY RETAIN THEIR CHARACTER AS PENSIONS UNTIL ACTUALLY EXPENDED FOR THE BENEFIT OF THE PENSIONER AND ANY MONEY WHICH CAN BE IDENTIFIED AS PROCEEDS OF PENSION, WHETHER IN A MEMBER'S DEPOSIT ACCOUNT OR ON HIS PERSON, OR OTHERWISE, IS NOT PAYABLE, IN THE CASE OF THE DEATH OF THE INMATE, TO THE PERSONAL REPRESENTATIVE OF THE DECEASED PENSIONER'S ESTATE, BUT ONLY TO THE PERSONS, AND IN THE ORDER NAMED, IN THE ACT OF JULY 1, 1902, 32 STAT. 564, AND IN DEFAULT OF SUCH PERSONS, THE PENSION MONEY IS FOR DEPOSITING TO THE "POST FUND" OF THE FACILITIES, TO BE USED FOR THE COMMON BENEFIT OF THE INMATES THEREOF. THE ACT OF JUNE 25, 1910, 36 STAT. 736, PERMITTING THE DISPOSITION OF PENSION MONEY BY WILL AFFECTS THOSE MEMBERS ONLY WHO APPLY FOR AND OBTAIN MEMBERSHIP IN A FACILITY UNDER THE TERMS OF SAID STATUTE AND IS OPERATIVE ONLY FROM THE DATE OF SAID ACT.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 13, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 21, 1934, REQUESTING DECISION BY THIS OFFICE AS TO THE DISPOSITION TO BE MADE OF UNPAID PENSION MONEY, DEPOSITS IN MEMBERS' DEPOSIT ACCOUNT, ETC., IN THE CASE OF A CIVIL WAR PENSIONER DYING WHILE A RESIDENT OF A VETERANS' ADMINISTRATION FACILITY (FORMERLY NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS). YOUR LETTER IS, IN PART, AS FOLLOWS:

ON AUGUST 30, 1932, WILLIAM H. STRANGE, A LATE CIVIL WAR PENSIONER ON ACCOUNT OF SERVICE IN COMPANY G, 102D REGIMENT, U.S. COLORED INFANTRY, DIED TESTATE AND A RESIDENT OF THE VETERANS' ADMINISTRATION FACILITY (FORMERLY NATIONAL HOME OF DISABLED VOLUNTEER SOLDIERS) AT DANVILLE, ILLINOIS, IN WHICH HOME THIS DECEASED PENSIONER HAD BEEN A RESIDENT CONTINUOUSLY FROM AUGUST 22, 1893, THE DATE OF HIS ADMISSION TO MEMBERSHIP.

UNDER DATE OF SEPTEMBER 2, 1932, LETTERS TESTAMENTARY UPON THE ESTATE OF THE DECEDENT WERE GRANTED BY THE PROBATE COURT OF VERMILION COUNTY, OHIO, TO A. H. BROWN, EXECUTOR OF THE DECEDENT'S WILL DISPOSING OF HIS ENTIRE ESTATE.

AMONG OTHER PERSONAL PROPERTY LEFT BY THE DECEASED PENSIONER WAS A BALANCE OF UNPAID PENSION REMAINING WITH THE DISBURSING OFFICER AT THE DANVILLE FACILITY IN THE AMOUNT OF $270.00, A DEPOSIT OF $22.25 WHICH THE PENSIONER HAD MADE IN MEMBER'S DEPOSIT ACCOUNT, AND $4.50 IN CASH.

CLAIM FOR SUCH FUNDS WAS MADE BY THE EXECUTOR BUT WAS DENIED BY THE MANAGER OF THE VETERANS' ADMINISTRATION FACILITY FOR THE STATED REASON THAT NONE OF THE MONEYS IN QUESTION WAS AN ASSET OF THE ESTATE OF THE DECEASED MEMBER, BUT REPRESENTED THE PROCEEDS OF PENSION AND AS SUCH WERE UNAFFECTED BY ANY DISPOSITION WHICH THE DECEASED MAY HAVE MADE BY HIS WILL, CITING THE PROVISIONS OF THE ACT OF JULY 1, 1902, 32 STAT. 564.

SINCE OCTOBER 1933 PAYMENTS OF PENSION TO COMPETENT MEMBERS OF THE NATIONAL HOME HAVE BEEN MADE BY CHECKS DRAWN DIRECT TO THE PENSIONERS IN ACCORDANCE WITH SECTION 3 OF THE ACT OF AUGUST 17, 1912 (37 STAT. 312), THE EFFECT OF WHICH AS CONSTRUED BY A FORMER COMPTROLLER OF THE TREASURY (19 COMP. DEC. 531) WAS TO MAKE DELIVERY OF THE CHECK TO THE PENSIONER THE PIVOTAL FACT WHICH CHANGES THE CHARACTER OF A PENSION CHECK FROM ACCRUED PENSION TO ASSETS OF THE PENSIONER'S ESTATE.

IN THE PRESENT CASE, HOWEVER, THE PENSIONER WAS PAID THE FULL AMOUNT OF HIS PENSION OF $72.00 A MONTH BY THE DISBURSING OFFICER OF THE VETERANS' ADMINISTRATION FACILITY UNTIL MAY 1932 WHEN THE MONTHLY PAYMENTS WERE REDUCED TO $30.00 BY REASON OF THE PENSIONER BEING A PATIENT IN THE HOSPITAL.

YOUR DECISION, THEREFORE, IS REQUESTED WHETHER THE BALANCE OF $270.00 UNPAID PENSION STANDING TO THE CREDIT OF THE DECEASED MEMBER OF THE HOME AT DANVILLE, ILLINOIS, THE $22.25 WHICH THE DECEASED HAD PREVIOUSLY DEPOSITED TO HIS CREDIT IN MEMBERS' DEPOSIT ACCOUNT, AND THE $4.50 IN CASH FOUND AT BEDSIDE, BEING THE REMAINDER OF THE $30.00 PENSION PAID WHILE PENSIONER WAS IN THE HOSPITAL, MAY NOW BE PAID TO THE EXECUTOR OF THE WILL IN THE ABSENCE OF A SHOWING THAT THE DECEASED PENSIONER WAS SURVIVED BY A WIDOW, MINOR CHILD, OR DEPENDENT PARENT ENTITLED TO TAKE THESE FUNDS BY INHERITANCE UNDER THE STATUTES HEREINBEFORE MENTIONED.

THE ACT OF JULY 1, 1902, 32 STAT. 564, REFERRED TO IN THE LETTER, SUPRA, PROVIDES AS FOLLOWS:

HEREINAFTER 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.

UNDER SECTION 2 OF THE ACT OF FEBRUARY 26, 1881, 21 STAT. 350, REENACTED BY THE ACT OF AUGUST 7, 1882, 22 STAT. 322, IT IS PROVIDED THAT ALL PENSIONS PAYABLE, OR TO BE PAID, TO PENSIONERS WHO ARE, OR MAY BECOME, INMATES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS SHALL BE PAID TO THE TREASURERS OF SAID HOME, TO BE APPLIED BY SUCH TREASURERS FOR THE BENEFIT OF THE PENSIONERS WITHOUT ANY DEDUCTION FOR FINES OR PENALTIES. BY EXECUTIVE ORDER NO. 5398, DATED JULY 21, 1930, ISSUED PURSUANT TO THE ACT OF JULY 3, 1930, 46 STAT. 1016, THE FUNCTIONS, ETC., RELATING TO THE ACTIVITIES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS WERE TRANSFERRED TO THE VETERANS' ADMINISTRATION. IT THUS APPEARS FROM THE FACTS STATED BY YOU THAT PURSUANT TO THE 1882 ACT JUST REFERRED TO THE PENSIONER HERE WAS PAID THE FULL AMOUNT OF HIS PENSION BY THE DISBURSING OFFICER OF THE VETERANS' ADMINISTRATION FACILITY OF WHICH FACILITY HE HAD BEEN A RESIDENT FROM THE DATE OF HIS ADMISSION THEREIN ON AUGUST 22, 1893, UNTIL THE DATE OF HIS DEATH ON AUGUST 30, 1932.

IT HAS BEEN HELD IN CONNECTION WITH THE 1902 ACT, ABOVE QUOTED, THAT PENSION MONEYS PAID TO THE TREASURER OF THE NATIONAL HOMES RETAIN THEIR CHARACTER AS PENSION MONEYS UNTIL ACTUALLY EXPENDED FOR THE BENEFIT OF THE PENSIONER. IT HAS BEEN HELD, ALSO, THAT ANY MONEY WHICH CAN BE IDENTIFIED AS PROCEEDS OF PENSION IS NOT PAYABLE TO ANY PERSON OTHER THAN A WIDOW, MINOR CHILDREN, OR DEPENDENT MOTHER OR FATHER, IN THE ORDER NAMED, AND THAT WHERE THE MEMBER DIES LEAVING NO HEIRS AT LAW OR NEXT OF KIND THE PENSION MONEY MUST BE DISPOSED OF IN THE MANNER PRESCRIBED BY THE SAID ACT. 4 COMP. GEN. 752; DECISIONS OF MARCH 29, 1932, A-41434, AND SEPTEMBER 10, 1932, A-42914. SEE, ALSO, DURACK ET AL. V. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, 44 FED./2ND) 516, AFFIRMING 38 FED./2ND) 112. IN THE INSTANT CASE, THE AMOUNT TO THE CREDIT OF THE PENSIONER IN MEMBERS' DEPOSIT ACCOUNT, AS WELL AS THE AMOUNT OF CASH FOUND ON HIS PERSON AT TIME OF DEATH, APPEARS TO HAVE BEEN IDENTIFIED AS PENSION MONEY. IF SUCH BE THE CASE, THE $270 UNPAID PENSION STANDING TO THE CREDIT OF THE DECEASED PENSIONER, TOGETHER WITH THE SUM OF $22.25 TO HIS CREDIT IN MEMBERS' DEPOSIT ACCOUNT AND THE $4.50 CASH FOUND ON HIS PERSON, MUST BE DISPOSED OF IN THE MANNER SPECIFIED IN THE 1902 ACT, SUPRA, AND MAY NOT BE PAID TO THE EXECUTOR OF THE DECEASED PENSIONER'S WILL IN THE ABSENCE OF A PROPER SHOWING THAT THE DECEDENT LEFT SURVIVING HIM PERSONS OF CLASSES SPECIFIED IN SAID ACT.

THE CONTENTION OF THE EXECUTOR OF THE DECEDENT'S WILL APPEARS TO BE THAT THE MONEY COVERED BY THE THREE CLASSES MENTIONED HEREIN CONSTITUTES PERSONAL PROPERTY OF THE DECEASED PENSIONER AND, AS SUCH, IS FOR DISPOSITION UNDER THE PROVISIONS OF THE ACT OF JUNE 25, 1910, 36 STAT. 736, WHICH PROVIDES THAT:

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 THAT 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 BOARD OF MANAGERS IS DIRECTED TO SO CHANGE THE FORM OF APPLICATION FOR MEMBERSHIP AS TO GIVE REASONABLE NOTICE OF THIS PROVISION TO EACH APPLICANT AND AS TO CONTAIN THE CONSENT OF THE APPLICANT TO ACCEPT MEMBERSHIP UPON THE CONDITIONS HEREIN PROVIDED.

THE PROVISIONS OF THIS QUOTED STATUTE AFFECT THOSE MEMBERS ONLY WHO APPLY FOR AND OBTAIN MEMBERSHIP IN THE HOME (FACILITY) UNDER THE TERMS OF SAID PROVISIONS. 19 COMP. DEC. 388, 391. IT IS OPERATIVE ONLY FROM ITS DATE. SINCE THE PENSIONER IN THE INSTANT CASE WAS ADMITTED INTO THE HOME (FACILITY) ON AUGUST 22, 1893, IT IS APPARENT THAT THE PROVISIONS OF SAID ACT ARE NOT FOR APPLICATION.