A-17637, APRIL 13, 1927, 6 COMP. GEN. 667

A-17637: Apr 13, 1927

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THE VETERANS' BUREAU MAY NOT RECOGNIZE THE CLAIM OF A RELATIVE OF THE DECEDENT WHO WAS A MEMBER OF THE SAME HOUSEHOLD FOR CARE OR OTHER SERVICES RENDERED FOR THE DECEDENT DURING HIS LAST SICKNESS UNLESS THERE WAS AN EXPRESS CONTRACT EITHER WRITTEN OR ORAL BETWEEN THE PERSON CLAIMING AND THE DECEDENT. IS REFERRED FOR FURTHER ATTENTION. THE RECORDS OF THE BUREAU SHOW THAT PAYMENT OF THE ACCRUED AMOUNT DUE IN THIS CASE WAS RECOMMENDED TO THE MOTHER. HE WAS REIMBURSED IN THE AMOUNT OF $42.00 FROM THE MEDICAL AND HOSPITAL SERVICES APPROPRIATION. CLAIM TO THE BALANCE OF $30.00 WAS WAIVED BY HIM IN FAVOR OF THE MOTHER. WYCKOFF WAS SUPPORTED BY THE DOCTOR'S WAIVER AGAINST THE GOVERNMENT AND STATEMENT TO THE EFFECT THAT HE HOLDS MRS.

A-17637, APRIL 13, 1927, 6 COMP. GEN. 667

VETERANS' BUREAU - DISTRIBUTION OF ACCRUED DISABILITY COMPENSATION - PAYMENT OF DEBTS IN THE DISTRIBUTION BY THE VETERANS' BUREAU OF ACCRUED DISABILITY COMPENSATION UPON THE DEATH OF A BENEFICIARY, UNDER SECTION 26 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 792, THERE MAY NOT BE RECOGNIZED A WAIVER OR ASSIGNMENT OF ONE HEIR OR DISTRIBUTEE IN FAVOR OF ANOTHER. THE AMOUNT DUE FROM THE ESTATE TO PREFERRED CREDITORS MUST BE PAID, UNDER THE STATUTE, EITHER UNDER A GENERAL WAIVER TO THE HEIRS OR DISTRIBUTEES AS THOUGH NO DEBTS EXISTED, OR DIRECTLY TO PREFERRED CREDITORS, OR TO THE HEIR OR DISTRIBUTEE FURNISHING SATISFACTORY EVIDENCE OF PAYMENT OF SUCH PREFERRED CLAIM. THE VETERANS' BUREAU MAY NOT RECOGNIZE THE CLAIM OF A RELATIVE OF THE DECEDENT WHO WAS A MEMBER OF THE SAME HOUSEHOLD FOR CARE OR OTHER SERVICES RENDERED FOR THE DECEDENT DURING HIS LAST SICKNESS UNLESS THERE WAS AN EXPRESS CONTRACT EITHER WRITTEN OR ORAL BETWEEN THE PERSON CLAIMING AND THE DECEDENT.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 13, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 4, 1927, AS FOLLOWS:

THE ATTACHED LETTER FROM THE OFFICE OF THE REGIONAL MANAGER, LOS ANGELES, CALIFORNIA, RELATIVE TO THE PAYMENT OF THE ACCRUED COMPENSATION DUE THE ESTATE OF EDWIN E. THORELL, DECEASED, IS REFERRED FOR FURTHER ATTENTION. THE RECORDS OF THE BUREAU SHOW THAT PAYMENT OF THE ACCRUED AMOUNT DUE IN THIS CASE WAS RECOMMENDED TO THE MOTHER, AUGUSTA THORELL, BASED ON THE FOLLOWING FACTS:

THE FATHER, MR. S. O. THORELL INCURRED BURIAL EXPENSES TO THE EXTENT OF $72.00. HE WAS REIMBURSED IN THE AMOUNT OF $42.00 FROM THE MEDICAL AND HOSPITAL SERVICES APPROPRIATION, AND CLAIM TO THE BALANCE OF $30.00 WAS WAIVED BY HIM IN FAVOR OF THE MOTHER; THE BALANCE OF $52.50 DUE ON THE BILL OF DR. L. E. WYCKOFF WAS SUPPORTED BY THE DOCTOR'S WAIVER AGAINST THE GOVERNMENT AND STATEMENT TO THE EFFECT THAT HE HOLDS MRS. THORELL RESPONSIBLE FOR PAYMENT; THIS IS ALSO TRUE OF THE BILL OF DR. F. L. MCLEOD FOR $10.00; AND MRS. THORELL'S PERSONAL CLAIM FOR BOARD AND CARE IN THE AMOUNT OF $1,560.00. THIS LATTER CLAIM WAS SUBMITTED IN THE MANNER HERETOFORE OUTLINED BY YOUR OFFICE.

THE LETTER FROM THE REGIONAL MANAGER ADVISES THAT DISTRIBUTION OF THE AMOUNT DUE WAS MADE BY YOUR OFFICE IN THE AMOUNTS OF $258.19 TO S. O. THORELL AND $228.18 TO AUGUSTA THORELL. IT IS PRESUMED BY THIS OFFICE THAT REIMBURSEMENT WAS MADE TO THE FATHER IN THE AMOUNT OF $30.00 FOR FUNERAL EXPENSES, AND THE BALANCE DUE DIVIDED EQUALLY BETWEEN THE MOTHER AND FATHER. REIMBURSEMENT FOR FUNERAL EXPENSES IN THE AMOUNT OF $30.00 IS UNDERSTOOD, BUT IT IS NOT UNDERSTOOD WHY THE MOTHER WAS NOT ALLOWED THE AMOUNTS FOR WHICH SHE IS RESPONSIBLE FOR MEDICAL EXPENSES, OR IF THIS METHOD OF SETTLEMENT IS NOT SATISFACTORY TO YOUR OFFICE, WHY SETTLEMENT WAS NOT MADE DIRECT TO THE CREDITORS BEFORE DISTRIBUTION WAS MADE TO THE HEIRS, SINCE THESE ITEMS ARE EXPENSES FOR WHICH THE ESTATE IS LIABLE UNDER THE INTESTACY LAWS.

IF THE BILL FOR BOARD AND CARE IS NOT CONSIDERED A PROPER CHARGE AGAINST THE ESTATE, THE BUREAU SHOULD BE SO ADVISED, IN ORDER THAT CLAIMANTS WILL NOT BE PUT TO UNNECESSARY TROUBLE AND EXPENSE IN PREPARING CLAIMS OF THIS NATURE.

THE BUREAU IS PREPARING THESE CLAIMS FOR PAYMENT OF ACCRUED NO ADMINISTRATOR AWARDS UNDER THE LAW AS OUTLINED IN SECTION 26 OF THE WORLD WAR VETERANS' ACT, AMENDED JULY 2, 1926, WHICH STATES: "THE DIRECTOR SHALL ALLOW AND PAY SUCH SUM TO SUCH PERSON OR PERSONS AS WOULD UNDER THE LAWS OF THE STATE OF RESIDENCE OF THE DECEDENT BE ENTITLED TO HIS PERSONAL PROPERTY IN CASE OF INTESTACY.' IN MOST INSTANCES THE INTESTACY LAWS OF THE STATES PROVIDE FOR DISTRIBUTION OF THE ESTATE SUBJECT TO THE PAYMENT OF DEBTS OF THE DECEDENT. IN THE CASES SUBMITTED FOR AUDIT BY YOUR OFFICE ACTION IS TAKEN TO PROVIDE FOR PAYMENT OF SUCH DEBTS BEFORE DISTRIBUTION IS MADE TO HEIRS. IF THIS IS NOT IN ACCORDANCE WITH THE PROCEDURE FOLLOWED BY YOUR OFFICE, THE BUREAU SHOULD BE SO ADVISED.

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1927, IN THE CASE OF NIMROD A. POUNDS, C-1,222,029, YOUR REFERENCE PRE-0143415-MBS. THE ACCRUED AMOUNTS OF COMPENSATION AND INSURANCE DUE IN THIS CASE TOTAL $214.58. MRS. CEMANTHA E. POUNDS INCURRED FUNERAL EXPENSES IN BEHALF OF THE DECEASED EX-SOLDIER IN THE AMOUNT OF $380.50. SHE WAS REIMBURSED $100 FROM THE MEDICAL AND HOSPITAL SERVICES APPROPRIATION, AND UNDER EXISTING PROCEDURE WAS ENTITLED TO REIMBURSEMENT OF THE BALANCE FROM THE ACCRUED AMOUNT DUE THE EX-SOLDIER'S ESTATE. HER CLAIM WAS, ACCORDINGLY, SUBMITTED TO YOUR OFFICE FOR CERTIFICATION FOR PAYMENT.

IN YOUR LETTER OF FEBRUARY 16, 1937, YOU STATE THAT ACTION IS BEING HELD PENDING THE RECEIPT OF APPLICATION FROM THE FATHER, BROTHERS, AND SISTERS OF THE DECEASED VETERAN. IF IN THE CASE OF EDWIN E. THORELL REIMBURSEMENT WAS MADE FOR BURIAL EXPENSES BEFORE DISTRIBUTION WAS MADE TO THE HEIRS, IT IS NOT UNDERSTOOD WHY NO CONSIDERATION IS BEING GIVEN TO THE CLAIM OF MRS. POUNDS FOR REIMBURSEMENT OF BURIAL EXPENSES INCURRED IN THE CASE OF NIMROD A. POUNDS.

IN SO FAR AS HERE MATERIAL, SECTION 26 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 792, QUOTED IN PART IN YOUR SUBMISSION, IS AS FOLLOWS:

THAT THE AMOUNT OF THE MONTHLY INSTALLMENTS OF COMPENSATION, YEARLY RENEWABLE TERM INSURANCE, OR ACCRUED MAINTENANCE AND SUPPORT ALLOWANCE WHICH HAS BECOME PAYABLE UNDER THE PROVISIONS OF TITLES II, III, OR IV HEREOF, BUT WHICH HAS NOT BEEN PAID PRIOR TO THE DEATH OF THE PERSON ENTITLED TO RECEIVE THE SAME, MAY BE PAYABLE TO THE PERSONAL REPRESENTATIVES OF SUCH PERSON, OR IN THE ABSENCE OF A DULY APPOINTED LEGAL REPRESENTATIVE WHERE THE COMBINED AMOUNTS PAYABLE ARE $1,000 OR LESS, THE DIRECTOR SHALL ALLOW AND PAY SUCH SUM TO SUCH PERSON OR PERSONS AS WOULD UNDER THE LAWS OF THE STATE OF RESIDENCE OF THE DECEDENT BE ENTITLED TO HIS PERSONAL PROPERTY IN CASE OF INTESTACY: * * *.

AN EXAMINATION OF THE FILE DISCLOSES THAT THE FACTS IN THE CASE OF EDWIN E. THORELL, DECEASED, ARE AS STATED BY YOU, AND SETTLEMENT CERTIFICATE 0141771, ISSUED JANUARY 20, 1927, TO THE FATHER AND MOTHER OF THE DECEDENT IN THE PROPORTIONS STATED BY YOU.

THERE IS FOR CONSIDERATION THE QUESTIONS (1) WHETHER ONE HEIR OR DISTRIBUTEE OF AN ESTATE MAY WAIVE CLAIM AGAINST THE UNITED STATES UNDER THE QUOTED STATUTE IN FAVOR OF ANOTHER HEIR OR DISTRIBUTEE, IN THIS CASE THE FATHER IN FAVOR OF THE MOTHER; (2) WHETHER PREFERRED CLAIMANTS SUCH AS PERSONS CLAIMING REIMBURSEMENT FOR FUNERAL EXPENSES, IN THIS CASE THE FATHER, OR PERSONS CLAIMING REIMBURSEMENT FOR EXPENSES OF LAST SICKNESS, IN THIS CASE TWO PHYSICIANS, MAY WAIVE THEIR CLAIMS AGAINST THE UNITED STATES IN FAVOR OF ONE OF THE HEIRS WHOM THEY INTEND TO HOLD LIABLE; AND (3) WHETHER THERE MAY BE RECOGNIZED AS A PREFERRED CLAIM AGAINST THE ESTATE OF THE BENEFICIARY THE CLAIM OF A RELATIVE AND MEMBER OF THE SAME HOUSEHOLD WITH THE BENEFICIARY AT DATE OF DEATH FOR BOARD AND CARE ON OTHER SERVICES INCIDENT TO LAST SICKNESS OF THE BENEFICIARY.

THE QUOTED STATUTE CONSTITUTES THE DIRECTOR THE EQUIVALENT OF AN ADMINISTRATOR OF ESTATES OF VETERANS IN SO FAR AS AMOUNTS OF $1,000 OR LESS DUE UNDER THE STATUTE ARE CONCERNED WHERE NO LEGAL REPRESENTATIVES HAS BEEN APPOINTED. THAT IS TO SAY, HE IS NOT AUTHORIZED TO DIRECT DISTRIBUTION OTHERWISE THAN TO SUCH PERSON OR PERSONS AS WOULD, UNDER THE LAWS OF THE STATE OF RESIDENCE OF THE DECEDENT, BE ENTITLED TO HIS PERSONAL PROPERTY IN CASE OF INTESTACY.

THE SPECIFIC QUESTIONS WILL BE CONSIDERED AND ANSWERED IN THE ORDER ABOVE STATED, AS FOLLOWS:

(1) THERE IS FOR APPLICATION SECTION 3477, REVISED STATUTES, PROHIBITING ASSIGNMENT OF CLAIMS AGAINST THE UNITED STATS PRIOR TO ALLOWANCE OF THE CLAIM, THE ASCERTAINMENT OF THE AMOUNT DUE, AND THE ISSUANCE OF A WARRANT IN PAYMENT THEREOF, AND THEN ONLY UNDER CERTAIN CONDITIONS. UNDER THIS STATUTE, THEREFORE, THERE MAY NOT BE RECOGNIZED A WAIVER OR ASSIGNMENT OF ONE HEIR OR DISTRIBUTEE IN FAVOR OF ANOTHER. DECISION OF APRIL 29, 1926, A-13780. AN INDIVIDUAL HEIR OR DISTRIBUTEE MAY INDORSE THE CHECK RECEIVED IN PAYMENT OF THE CLAIM TO ANOTHER HEIR OR DISTRIBUTEE BUT MAY NOT LEGALLY WAIVE OR ASSIGN THE CLAIM EXCEPT AS AUTHORIZED UNDER SECTION 3477, REVISED STATUTES. IT WAS PROPER, THEREFORE, TO REFUSE TO RECOGNIZE THE WAIVER OF THE FATHER IN THIS CASE OF HIS CLAIM TO HIS PORTION OF THE AMOUNT DUE UNDER THE STATUTE, IN FAVOR OF THE MOTHER.

(2) THE WAIVER OF CLAIMS AGAINST THE UNITED STATES BY PREFERRED CREDITORS IN FAVOR OF HEIRS OR DISTRIBUTEES, GENERALLY, IS NOT PROHIBITED. THIS IS FOR THE REASON THAT THERE MAY BE OTHER ASSETS OF THE ESTATE FROM WHICH THE PREFERRED CLAIMS ARE TO BE PAID. BUT THERE WOULD BE NO AUTHORITY TO RECOGNIZE A WAIVER OF CLAIM OF PREFERRED CREDITORS AGAINST INDIVIDUAL HEIRS OR DISTRIBUTEES THE RESULT OF WHICH WOULD BE TO INCREASE THE SHARE OF ONE AT THE EXPENSE OF THE OTHER. INDIVIDUAL HEIRS OR DISTRIBUTEES MAY BE ALLOWED CREDIT IN THE DISTRIBUTION OF THE AMOUNT DUE UNDER THE STATUTE FOR AMOUNTS OF FUNERAL EXPENSES OR EXPENSES OF LAST SICKNESS ACTUALLY PAID BY THEM, SUCH AS THE $30 PAID IN THIS CASE BY THE FATHER, BUT NOT FOR SUCH EXPENSES WHICH THEY HAVE NOT ACTUALLY PAID, SUCH AS THE TWO ITEMS OF $52.50 AND $10 ALLEGED TO HAVE BEEN DUE DOCTORS WYCKOFF AND MCLEOD, RESPECTIVELY. THEREFORE, THE AMOUNT DUE FROM THE ESTATE TO PREFERRED CREDITORS MUST BE PAID, UNDER THE STATUTE, EITHER, UNDER A GENERAL WAIVER, TO THE HEIRS OR DISTRIBUTEES AS THOUGH NO SUCH DEBTS EXISTED, OR DIRECTLY TO THE PREFERRED CREDITORS, OR TO THE HEIR OR DISTRIBUTEE FURNISHING SATISFACTORY EVIDENCE OF PAYMENT OF SUCH PREFERRED CLAIM.

(3) IT IS WELL SETTLED IN PRACTICALLY ALL JURISDICTIONS THAT AN EXECUTOR OR ADMINISTRATOR SHOULD NOT RECOGNIZE THE CLAIM OF A RELATIVE OF THE DECEDENT WHO WAS A MEMBER OF THE SAME HOUSEHOLD FOR CARE OR OTHER SERVICES RENDERED FOR THE DECEDENT DURING HIS LAST SICKNESS, UNLESS THERE WAS AN EXPRESS CONTRACT EITHER WRITTEN OR ORAL BETWEEN THE PERSON CLAIMING AND THE DECEDENT. THIS PRINCIPLE OF LAW IS FUNDAMENTAL AND BASED ON THE PRESUMPTION THAT SUCH PERSONAL SERVICES BY ONE MEMBER OF A HOUSEHOLD FOR ANOTHER WERE INTENDED TO BE GRATUITOUS OR PERFORMED FOR LOVE AND AFFECTION. CALIFORNIA, THE JURISDICTION IN THIS CASE, IS NO EXCEPTION. CRANE V. DERRICK, 157 CAL. 667; 109 PAC. 31. SEE GENERALLY 24 CORPUS JURIS, PAGES 280 TO 290. NO CONTRACT IS ALLEGED OR PRESENTED IN THIS CASE BETWEEN THE MOTHER AND HER SON, THE DECEDENT, IN VIEW OF WHICH THE CLAIM FOR $1,560, REPRESENTING REIMBURSEMENT FOR BOARD AND CARE OF HER SON PRIOR TO HIS DEATH, WAS PROPERLY DENIED IN THE SETTLEMENT. YOUR STATEMENT THAT THIS CLAIM WAS SUBMITTED IN THE MANNER HERETOFORE OUTLINED BY THIS OFFICE IS NOT UNDERSTOOD. THIS OFFICE DOES NOT APPEAR TO HAVE ISSUED INSTRUCTIONS RECOGNIZING SUCH A CLAIM. YOU ARE ADVISED, THEREFORE, THAT SETTLEMENT 0141771 MUST BE AND IS SUSTAINED.

IN THE CASE OF NIMROD A. POUNDS, DECEASED, IT APPEARS THAT THE FACTS ARE AS STATED IN YOUR SUBMISSION. THE AMOUNT DUE REPRESENTS INSURANCE AND DISABILITY COMPENSATION ACCRUED AND UNPAID AT THE DATE OF DEATH, INCLUDING PROCEEDS OF CHECK NO. 74438308, DATED JULY 1, 1925, FOR $150, THE PROCEEDS OF CHECK NO. 65215463, DATED JULY 1, 1925, FOR $43.07 AND VOUCHER FOR $21.51, OR A TOTAL OF $214.58. THE MOTHER, CEMANTHA E. POUNDS, HAVING EXPENDED $380.51 FOR BURIAL EXPENSES AND HAVING HERETOFORE RECEIVED FROM THE GOVERNMENT THE SUM OF $100 UNDER ANOTHER PROVISION OF THE STATUTE, THE FULL AMOUNT OF $214.58 MAY BE PAID TO HER TO REIMBURSE HER IN PART FOR THE REMAINDER OF THE FUNERAL EXPENSES IN THE AMOUNT OF $280.50. SEE ANSWER (2) ABOVE. SETTLEMENT WILL ISSUE ACCORDINGLY.