A-18349, JULY 27, 1927, 7 COMP. GEN. 71

A-18349: Jul 27, 1927

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THE AMOUNT THEREOF IS FOR DISPOSITION UNDER THE PROVISIONS OF THE ACT OF MARCH 2. 1927: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF O. THAT THE CLAIM WAS ALLOWED IN OCTOBER. WAS ISSUED NOVEMBER 4. IF THERE IS NO WIDOW. IN THE CASE OF HIS LAST SURVIVING CHILD WHO WAS SUCH MINOR AT HIS DEATH. ALL PRIOR LAWS RELATING TO THE PAYMENT OF ACCRUED PENSION ARE HEREBY REPEALED. ALL OTHER POSTAL EMPLOYEES ARE PROHIBITED FROM DELIVERING ANY SUCH MAIL TO ANY PERSON WHOMSOEVER. OR IN THE CASE OF A WIDOW BELIEVED BY THE POSTAL EMPLOYEE INTRUSTED WITH THE DELIVERY OF SUCH MAIL TO HAVE REMARRIED. PROVIDES: * * * AND THE ISSUE OF A CHECK IN PAYMENT OF A PENSION FOR WHICH THE EXECUTION AND SUBMISSION OF A VOUCHER WAS NOT REQUIRED SHALL CONSTITUTE PAYMENT IN THE EVENT OF THE DEATH OF THE PENSIONER ON OR AFTER THE LAST DAY OF THE PERIOD COVERED BY SUCH CHECK.

A-18349, JULY 27, 1927, 7 COMP. GEN. 71

ESTATES OF DECEDENTS - ASSETS - ACCRUED PENSION A CHECK COVERING THE ACCRUED PENSION OF A DECEASED PENSIONER, ISSUED IN FAVOR OF THE WIDOW WHO HAD DIED BEFORE THE ISSUANCE THEREOF, DOES NOT BECOME AN ASSET OF THE ESTATE OF THE WIDOW, BUT THE AMOUNT THEREOF IS FOR DISPOSITION UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1895, 28 STAT. 964, RELATING TO ACCRUED PENSION.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 27, 1927:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF O. D. DREBING, ADMINISTRATOR OF THE ESTATE OF ELIZA WIRTEL, SOMETIMES CALLED ELIZABETH WIRTHEL, FOR THE AMOUNT OF PENSION CHECK NO. 16295-BB, DATED NOVEMBER 4, 1926, FOR $58.40, PAYABLE TO THE SAID ELIZABETH WIRTHEL, NOW DECEASED, COVERING THE AMOUNT OF ACCRUED PENSION DUE IN THE CASE OF JOHN WIRTHEL, DECEASED HUSBAND OF THE SAID ELIZABETH WIRTHEL.

IT APPEARS THAT AT THE DATE OF JOHN WIRTHEL'S DEATH, MARCH 14, 1892, HE LEFT A CLAIM PENDING FOR PENSION UNDER THE ACT OF JUNE 27, 1890; THAT THE CLAIM WAS ALLOWED IN OCTOBER, 1926, AT THE RATE OF $12 PER MONTH, FROM OCTOBER 19, 1891, TO MARCH 14, 1892; AND THAT THE CHECK HERE IN QUESTION, COVERING THE AMOUNT OF THE ACCRUED PENSION, WAS ISSUED NOVEMBER 4, 1926, PAYABLE TO ELIZABETH WIRTHEL, WHO HAD DIED ON SEPTEMBER 25, 1926.

THE ACT OF MARCH 2, 1895, 28 STAT. 964, PROVIDES:

THAT FROM AND AFTER THE TWENTY-EIGHTH DAY OF SEPTEMBER, EIGHTEEN HUNDRED AND NINETY-TWO, THE ACCRUED PENSION TO THE DATE OF THE DEATH OF ANY PENSIONER, OR OF ANY PERSON ENTITLED TO A PENSION HAVING AN APPLICATION THEREFOR PENDING, AND WHETHER A CERTIFICATE THEREFOR SHALL ISSUE PRIOR OR SUBSEQUENT TO THE DEATH OF SUCH PERSON, SHALL IN THE CASE OF A PERSON PENSIONED, OR APPLYING FOR PENSION, ON ACCOUNT OF HIS DISABILITIES OR SERVICE, BE PAID, FIRST, TO HIS WIDOW; SECOND, IF THERE IS NO WIDOW, TO HIS CHILD OR CHILDREN UNDER THE AGE OF SIXTEEN YEARS AT HIS DEATH; THIRD, IN CASE OF A WIDOW, TO HER MINOR CHILDREN UNDER THE AGE OF SIXTEEN YEARS AT HER DEATH. SUCH ACCRUED PENSION SHALL NOT BE CONSIDERED A PART OF THE ASSETS OF THE ESTATE OF SUCH DECEASED PERSON, NOR BE LIABLE FOR THE PAYMENT OF THE DEBTS OF SAID ESTATE IN ANY CASE WHATSOEVER, BUT SHALL INURE TO THE SOLE AND EXCLUSIVE BENEFIT OF THE WIDOW OR CHILDREN. AND IF NO WIDOW OR CHILD SURVIVE SUCH PENSIONER, AND IN THE CASE OF HIS LAST SURVIVING CHILD WHO WAS SUCH MINOR AT HIS DEATH, AND IN CASE OF A DEPENDENT MOTHER, FATHER, SISTER, OR BROTHER, NO PAYMENT WHATSOEVER OF THEIR ACCRUED PENSION SHALL BE MADE OR ALLOWED EXCEPT SO MUCH AS MAY BE NECESSARY TO REIMBURSE THE PERSON WHO BORE THE EXPENSE OF THEIR LAST SICKNESS AND BURIAL, IF THEY DID NOT LEAVE SUFFICIENT ASSETS TO MEET SUCH EXPENSE. AND THE MAILING OF A PENSION CHECK, DRAWN BY A PENSION AGENT IN PAYMENT OF A PENSION DUE, TO THE ADDRESS OF A PENSIONER, SHALL CONSTITUTE PAYMENT IN THE EVENT OF THE DEATH OF A PENSIONER SUBSEQUENT TO THE EXECUTION OF THE VOUCHER THEREFOR. AND ALL PRIOR LAWS RELATING TO THE PAYMENT OF ACCRUED PENSION ARE HEREBY REPEALED.

SECTION 3 OF THE ACT OF AUGUST 17, 1912, 37 STAT. 312, PROVIDES:

THAT NOT LATER THAN JANUARY FIRST, NINETEEN HUNDRED AND THIRTEEN, PENSIONS SHALL BE PAID BY CHECKS DRAWN, UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR, IN SUCH FORM AS TO PROTECT THE UNITED STATES AGAINST LOSS, WITHOUT SEPARATE VOUCHERS OR RECEIPTS, AND PAYABLE BY THE PROPER ASSISTANT TREASURER OR DESIGNATED DEPOSITARY, EXCEPT IN THE CASE OF ANY PENSIONER IN WHICH THE LAW AUTHORIZES THE PENSION TO BE PAID TO SOME PERSON OTHER THAN THE PENSIONER, OR IN WHICH THE SECRETARY OF THE INTERIOR MAY CONSIDER A VOUCHER NECESSARY FOR THE PROTECTION OF THE GOVERNMENT. SUCH CHECKS SHALL BE TRANSMITTED BY MAIL TO THE PAYEE THEREOF AT HIS LAST KNOWN ADDRESS.

THAT POSTMASTERS, DELIVERY CLERKS, LETTER CARRIERS, AND ALL OTHER POSTAL EMPLOYEES ARE PROHIBITED FROM DELIVERING ANY SUCH MAIL TO ANY PERSON WHOMSOEVER, IF THE ADDRESSEE HAS DIED OR REMOVED, OR IN THE CASE OF A WIDOW BELIEVED BY THE POSTAL EMPLOYEE INTRUSTED WITH THE DELIVERY OF SUCH MAIL TO HAVE REMARRIED; AND THE POSTMASTER IN EVERY SUCH CASE SHALL FORTHWITH RETURN SUCH MAIL WITH A STATEMENT OF THE REASONS FOR SO DOING, AND IF BECAUSE OF DEATH OR REMARRIAGE, THE DATE THEREOF, IF KNOWN. CHECKS RETURNED AS HEREIN PROVIDED ON ACCOUNT OF THE DEATH OR REMARRIAGE OF THE PENSIONER SHALL BE CANCELED.

SECTION 4 OF THE ACT OF MAY 1, 1926, 44 STAT. 383, PROVIDES:

* * * AND THE ISSUE OF A CHECK IN PAYMENT OF A PENSION FOR WHICH THE EXECUTION AND SUBMISSION OF A VOUCHER WAS NOT REQUIRED SHALL CONSTITUTE PAYMENT IN THE EVENT OF THE DEATH OF THE PENSIONER ON OR AFTER THE LAST DAY OF THE PERIOD COVERED BY SUCH CHECK, AND IT SHALL NOT BE CANCELED, BUT SHALL BECOME AN ASSET OF THE ESTATE OF THE DECEASED PENSIONER.

THE CLAIM IN THIS CASE IS APPARENTLY BASED UPON THE ASSUMPTION THAT THE PROVISION JUST QUOTED FROM THE ACT OF MAY 1, 1926, IS APPLICABLE. IT IS TO BE NOTED, HOWEVER, THAT SAID PROVISION EXPRESSLY RELATES TO THE PENSIONER, NOT TO HIS WIDOW, AND MAKES THE ISSUANCE OF PENSION CHECK IN HIS FAVOR TANTAMOUNT TO AN ACTUAL DELIVERY TO HIM OF SUCH CHECK DURING HIS LIFETIME, AS REQUIRED BY THE ACT OF AUGUST 17, 1912, SUPRA, PROVIDING HE IS ALIVE ON THE LAST DAY OF THE PENSION PERIOD COVERED BY THE CHECK, SO THAT THE AMOUNT THEREOF BECOMES "AN ASSET OF THE ESTATE OF THE DECEASED PENSIONER.'

THE PENSION PERIOD TO WHICH THE ACT HAS REFERENCE IS THE MONTHLY PAYMENT PERIOD PRESCRIBED BY THE ACT OF MAY 3, 1922, 42 STAT. 505, WHICH PROVIDES: "THAT PAYMENT OF PENSIONS SHALL BE MADE MONTHLY, ON THE 4TH DAY OF EACH MONTH, BEGINNING NOT LATER THAN SEPTEMBER, 1922.' WHILE THE ACT OF MAY 1, 1926, THUS IN EFFECT MAKES THE PROCEEDS OF A CHECK ISSUED TO A PENSIONER A PART OF HIS ESTATE, IF HE WAS ALIVE ON THE LAST DAY OF THE PENSION PERIOD COVERED THEREBY, IT IN NO WAY REPEALS OR MODIFIES THE FORMER LAW RELATIVE TO THE PAYMENT OF ACCRUED PENSION FOR WHICH NO CHECK HAD ISSUED TO THE PENSIONER. ACCORDINGLY, IT MUST BE HELD THAT THE PROVISION OF THE ACT OF MAY 1, 1926, SUPRA, HAS NO APPLICATION TO THE CASE HERE PRESENTED AND THAT THE PROCEEDS OF THE CHECK ARE FOR DISPOSITION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF 1895 RELATING TO ACCRUED PENSION FOR WHICH NO CHECK WAS ISSUED TO THE PENSIONER. SEE IN THIS CONNECTION DECISION OF AUGUST 10, 1900, BY A FORMER COMPTROLLER OF THE TREASURY, IN THE CASE OF JOHN E. ALEXANDER, A PENSIONER, WHO WAS SURVIVED BY HIS WIDOW WHO DIED BEFORE PAYMENT OF THE ACCRUED PENSION COULD BE EFFECTED. SEE ALSO 7 COMP. DEC. 841.

THE CLAIM OF THE ADMINISTRATOR OF THE ESTATE OF THE WIDOW FOR THE AMOUNT OF THE PROCEEDS OF THE CHECK COVERING THE ACCRUED PENSION OF HER DECEASED HUSBAND MUST BE AND IS DISALLOWED. THE CHECK WILL BE CANCELED AND THE AMOUNT THEREOF RETURNED TO THE PROPER APPROPRIATION.