A-12032, FEBRUARY 23, 1926, 5 COMP. GEN. 651

A-12032: Feb 23, 1926

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A DESIGNATED BENEFICIARY WHO IS NOT A RELATIVE MAY NOT WAIVE OR RELINQUISH RIGHT TO PAYMENT FROM THE UNITED STATES IN FAVOR OF A RELATIVE UPON THE DEATH OF THE VETERAN. WHERE TWO OR MORE PERSONS ARE CLAIMING TO BE THE DESIGNATED BENEFICIARY IN THE APPLICATION FOR AN ADJUSTED-SERVICE CERTIFICATE. THE EVIDENCE IS CONFLICTING. IT IS IMPOSSIBLE TO DETERMINE WITH CERTAINTY FROM ALL THE FACTS OF RECORD THE PERSON INTENDED TO BE DESIGNATED BY THE VETERAN. WILL NOT DEFEAT SUCH INTENTION. IF NO FRAUD IS TO BE IMPLIED FROM SUCH MISSTATEMENT. 1926: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION WHETHER THE AMOUNT OF ADJUSTED-SERVICE CERTIFICATES ISSUED TO VETERANS OF THE WORLD WAR MAY BE PAID TO THE BENEFICIARIES DESIGNATED IN THE APPLICATIONS MADE BY THE VETERANS DURING THEIR LIFETIME IN CASES WHERE IT APPEARS THERE HAS BEEN A MISSTATEMENT AS TO THE RELATIONSHIP BETWEEN THE VETERAN AND THE BENEFICIARY.

A-12032, FEBRUARY 23, 1926, 5 COMP. GEN. 651

VETERANS' BUREAU - ADJUSTED COMPENSATION - BENEFICIARIES A VETERAN MAY DESIGNATE ANY PERSON, WHETHER A RELATIVE OR NOT, AS THE BENEFICIARY UNDER HIS ADJUSTED SERVICE CERTIFICATE, AND A DESIGNATED BENEFICIARY WHO IS NOT A RELATIVE MAY NOT WAIVE OR RELINQUISH RIGHT TO PAYMENT FROM THE UNITED STATES IN FAVOR OF A RELATIVE UPON THE DEATH OF THE VETERAN. WHERE TWO OR MORE PERSONS ARE CLAIMING TO BE THE DESIGNATED BENEFICIARY IN THE APPLICATION FOR AN ADJUSTED-SERVICE CERTIFICATE, AND THE EVIDENCE IS CONFLICTING, AND IT IS IMPOSSIBLE TO DETERMINE WITH CERTAINTY FROM ALL THE FACTS OF RECORD THE PERSON INTENDED TO BE DESIGNATED BY THE VETERAN, PAYMENT UPON THE DEATH OF THE VETERAN, SHOULD BE MADE TO HIS ESTATE ON THE BASIS THAT NO DESIGNATION OF A BENEFICIARY WITHIN THE PURVIEW OF THE STATUTE HAD BEEN MADE. IF THE PERSON DESIGNATED AS BENEFICIARY IN THE APPLICATION FOR AN ADJUSTED-SERVICE CERTIFICATE CAN BE IDENTIFIED AS THE PERSON INTENDED BY THE VETERAN, A MISSTATEMENT IN THE APPLICATION AS TO THE CORRECT NAME OF THE BENEFICIARY, OR THE RELATIONSHIP TO THE VETERAN, WILL NOT DEFEAT SUCH INTENTION, IF NO FRAUD IS TO BE IMPLIED FROM SUCH MISSTATEMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 23, 1926:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION WHETHER THE AMOUNT OF ADJUSTED-SERVICE CERTIFICATES ISSUED TO VETERANS OF THE WORLD WAR MAY BE PAID TO THE BENEFICIARIES DESIGNATED IN THE APPLICATIONS MADE BY THE VETERANS DURING THEIR LIFETIME IN CASES WHERE IT APPEARS THERE HAS BEEN A MISSTATEMENT AS TO THE RELATIONSHIP BETWEEN THE VETERAN AND THE BENEFICIARY.

THE FOLLOWING CASES ARE PRESENTED AS ILLUSTRATIVE OF THE QUESTION:

1. JESSE COTTLE IN HIS APPLICATION NO. 1591381 HAS DESIGNATED MRS. ELMO COTTLE, WIFE, ADDRESS, INGRAM BRANCH, FAYETTE, W.VA., AS BENEFICIARY, AND ADJUSTED-SERVICE CERTIFICATE NO. 595246 BASED ON SAID APPLICATION ISSUED AS OF JANUARY 1, 1925, IN THE AMOUNT OF $1,575. THE VETERAN DIED MARCH 31, 1925. IT HAS DEVELOPED THAT THE VETERAN HAD NO WIFE AT THE TIME OF HIS DEATH; THAT THERE WAS NO PERSON WITH THE NAME OF ELMO COTTLE; THAT THE BENEFICIARY HAD BEEN LIVING WITH MRS. ELMO FISHER FOR 18 MONTHS PRIOR TO HIS DEATH; THAT THE VETERAN AND MRS. FISHER WERE TO BE MARRIED AS SOON AS THE LATTER SECURED A DIVORCE FROM HER HUSBAND WHICH WAS SOON TO COME UP FOR HEARING; THAT THE REASON FOR THE DESCRIPTION AS WIFE IN THE APPLICATION WAS IN ANTICIPATION OF THIS MARRIAGE; THAT MRS. FISHER HAD THE ADJUSTED-SERVICE CERTIFICATE IN HER POSSESSION AT THE TIME OF THE VETERAN'S DEATH; THAT SHE HAS SIGNED A WAIVER OF HER CLAIM IN FAVOR OF THE ESTATE OF THE DECEDENT; THAT AN ATTORNEY ON BEHALF OF MRS. FISHER PURPORTS TO REPUDIATE THIS WAIVER; THAT AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT HAS BEEN APPOINTED; AND THAT THE PERSONS WHO WOULD TAKE UNDER THE ESTATE APPEAR TO BE THE STEPFATHER, BROTHER, AND SISTER OF THE DECEASED.

2. JAMES F. GRADY IN HIS APPLICATION NO. 2817682 DESIGNATED MRS. GERTRUDE BEATRICE GRADY, WIFE, ADDRESS, 98 CLAREMONT AVENUE, JERSEY CITY, N.J., AS BENEFICIARY, AND ADJUSTED SERVICE CERTIFICATE NO. 1586408 BASED ON SAID APPLICATION ISSUED JANUARY 1, 1925, IN THE AMOUNT OF $995. THE VETERAN DIED APRIL 29, 1925. IT HAS DEVELOPED THAT THE VETERAN HAD NO WIFE AT THE TIME OF HIS DEATH; THAT THERE WAS NO PERSON WITH THE NAME OF MRS. GERTRUDE BEATRICE GRADY; THAT THE PERSON DESIGNATED IN THE APPLICATION REFERS TO MISS GERTRUDE BEATRICE SHERIDAN, THE FIANCEE OF THE BENEFICIARY; THAT THE MARRIAGE WAS TO HAVE TAKEN PLACE AUGUST 29, 1925; THAT THE BENEFICIARY GAVE THE DESCRIPTION AS WIFE IN THE APPLICATION IN ANTICIPATION OF THE MARRIAGE; THAT GERTRUDE BEATRICE SHERIDAN MAKES NO CLAIM UNDER THE ADJUSTED SERVICE CERTIFICATE, BUT STATES AGAINST SELF-INTEREST THAT THE DESIGNATION WAS CONDITIONAL UPON MARRIAGE; AND THAT AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT HAS BEEN APPOINTED WHO IS MAKING CLAIM ON BEHALF OF THE HEIRS ENTITLED THEREUNDER.

3. WILLIAM BROWN, IN HIS APPLICATION NO. 3597773, DESIGNATED MRS. ANNIE DILEY BROWN, WIFE, ADDRESS, 26 EAST ONE HUNDRED AND THIRTY FOURTH STREET, NEW YORK CITY, AS BENEFICIARY, AND ADJUSTED SERVICE CERTIFICATE NO. 2651116 BASED ON SAID APPLICATION ISSUED AS OF JUNE 1, 1925, IN THE AMOUNT OF $996. THE VETERAN DIED JULY 5, 1925. IT HAS DEVELOPED THAT THE DESIGNATED BENEFICIARY WAS NOT THE LAWFUL WIFE OF THE VETERAN, BUT THAT THE NAME OF HIS LAWFUL WIFE WAS MRS. ESSIE BROWN; THAT THE VETERAN HAD BEEN LIVING WITH THE PERSON DESIGNATED IN THE APPLICATION FOR TWO YEARS PRIOR TO HIS DEATH; THAT MRS. ESSIE BROWN, THE LAWFUL WIFE, HAS BEEN APPOINTED ADMINISTRATRIX OF THE ESTATE OF THE DECEASED VETERAN; AND THAT THE PERSON DESIGNATED AS MRS. ANNIE DILEY BROWN, AND THE LAWFUL WIFE, MRS. ESSIE BROWN, HAVE AGREED TO DIVIDE THE AMOUNT DUE UNDER THE CERTIFICATE.

4. PAUL MEYER SVE IN HIS APPLICATION NO. 1462115 DESIGNATED MRS. MINNIE SVE, WIFE, ADDRESS, 20 WEST CULLERTON STREET, CHICAGO, ILL., AS BENEFICIARY. APPARENTLY THE ADJUSTED SERVICE CERTIFICATE BASED ON THIS APPLICATION HAS ISSUED AND IT IS INDICATED THAT THE VETERAN IS DEAD. HAS DEVELOPED THAT THE PERSON DESIGNATED IN THE APPLICATION WAS NOT THE WIFE OF THE VETERAN, BUT THAT HE HAD A LAWFUL WIFE AND MINOR CHILD LIVING, WHOM HE HAD DESERTED TO LIVE WITH THE PERSON DESIGNATED IN THE APPLICATION AS BENEFICIARY. THE RECORD IN THIS CASE HAS NOT, AS YET, BEEN COMPLETED. THE ADJUSTED SERVICE CERTIFICATE DOES NOT APPEAR WITH THE RECORD AND PROOF OF DEATH OF THE VETERAN HAS NOT BEEN SUBMITTED.

SECTION 501 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, DATED MAY 19, 1924, 43 STAT. 125, PROVIDES AS FOLLOWS:

* * * THE VETERAN SHALL NAME THE BENEFICIARY OF THE CERTIFICATE AND MAY FROM TIME TO TIME, WITH THE APPROVAL OF THE DIRECTOR, CHANGE SUCH BENEFICIARY. THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE * * * SHALL BE PAYABLE * * *, OR (2) UPON THE DEATH OF THE VETERAN PRIOR TO THE EXPIRATION OF SUCH TWENTY-YEAR PERIOD, TO THE BENEFICIARY NAMED; EXCEPT THAT IF SUCH BENEFICIARY DIES BEFORE THE VETERAN AND NO NEW BENEFICIARY IS NAMED, OR IF THE BENEFICIARY IN THE FIRST INSTANCE HAS NOT YET BEEN NAMED, THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE SHALL BE PAID TO THE ESTATE OF THE VETERAN. IF THE VETERAN DIES AFTER MAKING APPLICATION UNDER SECTION 302, BUT BEFORE JANUARY 1, 1925, THEN THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE SHALL BE PAID IN THE SAME MANNER AS IF HIS DEATH HAD OCCURRED AFTER JANUARY 1, 1925.

THERE IS NO RESTRICTION PLACED BY THE STATUTE ON THE VETERAN WITH REGARD TO DESIGNATION OF A BENEFICIARY. UPON THE DEATH OF THE VETERAN THE FACE VALUE OF THE CERTIFICATE IS PAYABLE TO THE PERSON ACTUALLY DESIGNATED, IF LIVING, ALTHOUGH NOT A RELATIVE OF THE VETERAN, AND THE WIFE, CHILD, OR OTHER RELATIVE CAN ASSERT NO CLAIM UNDER THE CERTIFICATE ADVERSE TO THAT OF SUCH DESIGNATED BENEFICIARY. SEE 23 COMP. DEC. 74. THE DESIGNATED BENEFICIARY, WHO IS NOT A RELATIVE, MAY NOT GENERALLY WAIVE OR RELINQUISH RIGHTS UNDER THE CERTIFICATE, IN SO FAR AS PAYMENT FROM THE UNITED STATES IS CONCERNED, IN FAVOR OF A RELATIVE, WHERE SUCH ACTION WOULD BE AN ASSIGNMENT OF A CLAIM AGAINST THE UNITED STATES CONTRARY TO THE PROVISIONS OF SECTION 3477, REVISED STATUTES, AND SECTION 503 OF THE WORLD WAR ADJUSTED COMPENSATION ACT.

WHERE TWO OR MORE PERSONS ARE CLAIMING TO BE THE DESIGNATED BENEFICIARY, AND THE EVIDENCE IS CONFLICTING, AND IT IS IMPOSSIBLE TO DETERMINE WITH CERTAINTY FROM ALL THE FACTS OF RECORD THE PERSON INTENDED TO BE DESIGNATED BY THE VETERAN, PAYMENT SHOULD BE MADE TO THE ESTATE OF THE VETERAN ON THE BASIS THAT NO DESIGNATION OF A BENEFICIARY WITHIN THE PURVIEW OF THE STATUTE HAS BEEN MADE.

IN DECISION OF JULY 28, 1925, 5 COMP. GEN. 64, 66, IT WAS STATED:

THE PRINCIPAL OF THE (ADJUSTED SERVICE) CERTIFICATE REPRESENTS AN AMOUNT BASED ON 20-YEAR ENDOWMENT LIFE INSURANCE. COMPARABLE TO SUCH INSURANCE I AM JUSTIFIED IN CONCLUDING THAT THE BENEFICIARY BEING FIXED, THE RIGHTS UNDER THE CERTIFICATE ARE VESTED IN SUCH BENEFICIARY UNLESS THE STATUTE REQUIRES OTHERWISE.

LIKE A POLICY OF INSURANCE, THE APPLICATION MADE BY A VETERAN FOR AN ADJUSTED SERVICE CERTIFICATE IS TO BE SO CONSTRUED AS TO ASCERTAIN AND CARRY OUT THE INTENTION OF THE VETERAN. IF THE PERSON DESIGNATED AS BENEFICIARY IN THE APPLICATION CAN BE IDENTIFIED AS THE PERSON INTENDED BY THE VETERAN, A MISSTATEMENT IN THE APPLICATION AS TO THE CORRECT NAME OF THE BENEFICIARY OR THE RELATIONSHIP TO THE VETERAN, WILL NOT DEFEAT SUCH INTENTION, IF NO FRAUD IS TO BE IMPLIED FROM SUCH MISSTATEMENT. SEE 3 COMP. GEN. 767, 768, CITING INSURANCE COMPANY V. BOON, 95 U.S. 117, 128. SEE ALSO 20 COMP. DEC. 146; 24 ID. 303. THE STATEMENT AS TO RELATIONSHIP IS IN SUBSTANCE A DESCRIPTION AIDING IN IDENTIFICATION AND AS SUCH DESCRIPTION IS NOT ESSENTIAL TO THE DESIGNATION OF A BENEFICIARY OR VALIDITY OF THE APPLICATION, IT HAS NO CONTROLLING EFFECT IN DETERMINING THE RIGHT TO PAYMENT. THERE WOULD BE NO MATERIAL ELEMENT OF FRAUD IN SUCH CASES. PAYMENT TO THE ESTATE OF THE VETERAN WOULD BE AUTHORIZED ONLY WHERE THE DESIGNATED BENEFICIARY DIED PRIOR TO THE VETERAN, OR THE VETERAN HAD DESIGNATED NO BENEFICIARY, OR THE PERSON INTENDED TO BE DESIGNATED COULD NOT BE IDENTIFIED, EITHER FROM THE EVIDENCE IN THE APPLICATION OR OTHERWISE.

1. IN THE CASE OF JESSE COTTLE, THE FACTS SHOW AN INTENTION TO DESIGNATE THE WOMAN WITH WHOM HE HAD BEEN LIVING FOR 18 MONTHS AND IN WHOSE POSSESSION THE CERTIFICATE WAS FOUND UPON HIS DEATH, VIZ, MRS. ELMO FISHER, ALIAS MRS. ELMO COTTLE, ERRONEOUSLY DESCRIBED AS HIS WIFE IN THE APPLICATION. CERTAINLY THERE WAS NO INTENT TO DESIGNATE HIS ESTATE OR ANY OTHER INDIVIDUAL. ACCORDINGLY, PAYMENT SHOULD BE MADE TO MRS. ELMO FISHER. THE ESTATE OF THE VETERAN IS NOT CLAIMING AS THE DESIGNATED BENEFICIARY OR ON THE BASIS THAT NO BENEFICIARY HAD BEEN APPOINTED, BUT APPARENTLY ON THE BASIS THAT THE DESIGNATION WAS UNLAWFUL. AS RELATIVES MAY NOT CLAIM ADVERSELY TO THE DESIGNATED BENEFICIARY, NO EFFECT IS REQUIRED TO BE GIVEN TO THE WAIVER SIGNED BY THE DESIGNATED BENEFICIARY.

2. IN THE CASE OF JAMES F. GRADY IT CLEARLY APPEARS THAT THE VETERAN INTENDED DESIGNATING A PERSON AS HIS BENEFICIARY, AND IT FURTHER APPEARS FROM THE FACTS GIVEN THAT THE IDENTITY OF SUCH PERSON HAS BEEN DULY ESTABLISHED. THE DOUBT IN THE MATTER APPEARS TO ARISE BECAUSE THE VETERAN DESCRIBED THE BENEFICIARY AS HIS WIFE WHEN SHE WAS THEN ONLY HIS FIANCEE, AND SHE HAS SINCE EXPRESSED HER UNDERSTANDING THAT THE DESIGNATION WAS MADE IN ANTICIPATION OF THEIR MARRIAGE--- AND THEY WERE NOT MARRIED, THE VETERAN HAVING DIED PRIOR TO THE DATE SET FOR THEIR MARRIAGE. THERE MUST BE GIVEN EFFECT TO THE VETERAN'S INTENT AS EXPRESSED RATHER THAN AS SURMISED. HE MAY HAVE INTENDED CHANGING THE DESIGNATION IN THE EVENT THE MARRIAGE DID NOT OCCUR AS PLANNED, BUT NO SUCH CHANGE WAS IN FACT MADE OR REQUESTED BY HIM PRIOR TO HIS DEATH. THE DESCRIPTION GIVEN BY THE VETERAN AS "WIFE" WOULD NOT NECESSARILY MEAN THAT HE INTENDED NO DESIGNATION IN THE EVENT THE MARRIAGE SHOULD NOT OCCUR PRIOR TO A REQUEST FOR CHANGE BY HIM, OR PRIOR TO HIS DEATH. AS THE FACTS NOW APPEAR PAYMENT COULD NOT PROPERLY BE MADE TO OTHER THAN THE DESIGNATED BENEFICIARY, HER IDENTITY HAVING BEEN ESTABLISHED, BUT THERE WOULD APPEAR NO REASON FOR OBJECTION IF, IN VIEW OF THE FACTS AS STATED BY HER, SHE SHOULD IN TURN DELIVER THE PAYMENT TO A PROPER REPRESENTATIVE OF THE VETERAN'S ESTATE TO BECOME AN ASSET THEREOF.

3. IN THE CASE OF WILLIAM BROWN, THE FACTS SHOW AN INTENT TO DESIGNATE THE WOMAN WITH WHOM HE HAD BEEN LIVING FOR TWO YEARS PRIOR TO HIS DEATH, VIZ, MRS. ANNIE DILEY BROWN, ERRONEOUSLY DESCRIBED AS HIS WIFE. NO EFFECT MAY BE GIVEN TO THE ALLEGED AGREEMENT BETWEEN THE DESIGNATED BENEFICIARY AND THE LAWFUL WIFE OF THE VETERAN TO DIVIDE THE AMOUNT DUE UNDER THE CERTIFICATE, BUT THE ENTIRE AMOUNT SHOULD BE PAID TO MRS. ANNIE DILEY BROWN FOR THE REASON THAT THE LAWFUL WIFE IS NOT CLAIMING TO HAVE BEEN THE DESIGNATED BENEFICIARY, BUT HER CLAIM IS MERELY AS THE LAWFUL WIFE, WHICH IS WITHOUT BASIS OF LAW.

4. IN THE CASE OF PAUL MEYER SVE, THE INCOMPLETE FACTS SHOW AN INTENT TO DESIGNATE THE WOMAN WITH WHOM HE HAD BEEN LIVING AT THE TIME OF HIS DEATH. PAYMENT SHOULD NOT BE MADE IN THIS CASE UNTIL THE RECORD IS PROPERLY COMPLETED.