A-20414, MARCH 24, 1931, 10 COMP. GEN. 425

A-20414: Mar 24, 1931

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SET-OFF - CLAIMS OF THE UNITED STATES - EXECUTRIXES WHERE THE EXECUTRIX OF AN ESTATE HAS GIVEN A SPECIAL BOND MAKING HERSELF ANSWERABLE FOR ALL CLAIMS AGAINST THE ESTATE AND IS THE SOLE BENEFICIARY RECEIVING PROPERTY FROM THE ESTATE IN AN AMOUNT GREATER THAN THE CLAIM OF THE GOVERNMENT AGAINST THE ESTATE. SUCH CLAIM OF THE GOVERNMENT WILL BE DEDUCTED FROM ANY AMOUNT DUE FROM THE UNITED STATES TO THE EXECUTRIX PERSONALLY. THERE WAS FILED ON JULY 2. A COPY OF THE WILL OF ROBERT WHITNEY IMBRIE FOR PROBATE. TOGETHER WITH A PETITION ASKING THAT THE WILL BE ADMITTED TO PROBATE AND THAT KATHERINE IMBRIE BE APPOINTED THE EXECUTRIX OF THE ESTATE. THE WILL DATED OCTOBER 1. THIS WAS ADMITTED TO PROBATE BY AN ORDER FILED JULY 2.

A-20414, MARCH 24, 1931, 10 COMP. GEN. 425

SET-OFF - CLAIMS OF THE UNITED STATES - EXECUTRIXES WHERE THE EXECUTRIX OF AN ESTATE HAS GIVEN A SPECIAL BOND MAKING HERSELF ANSWERABLE FOR ALL CLAIMS AGAINST THE ESTATE AND IS THE SOLE BENEFICIARY RECEIVING PROPERTY FROM THE ESTATE IN AN AMOUNT GREATER THAN THE CLAIM OF THE GOVERNMENT AGAINST THE ESTATE, SUCH CLAIM OF THE GOVERNMENT WILL BE DEDUCTED FROM ANY AMOUNT DUE FROM THE UNITED STATES TO THE EXECUTRIX PERSONALLY.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 24, 1931:

MRS. KATHERINE IMBRIE, WIDOW OF ROBERT WHITNEY IMBRIE, FORMERLY VICE CONSUL AT TEHERAN, PERSIA, SUBMITTED CLAIM IN LETTER DATED JANUARY 24, 1931, FOR $30,000, APPROPRIATED IN THE ACT OF MARCH 4, 1927, 44 STAT. 1973, BUT HAS REFUSED HER CONSENT TO DEDUCTION OF THE BALANCE OF $1,325.86 FOUND TO BE DUE THE UNITED STATES IN THE FINAL SETTLEMENT, NO. C-21158-S, DATED MAY 16, 1928, OF THE ACCOUNTS OF HER DECEASED HUSBAND, AND IN LETTER DATED DECEMBER 5, 1930, THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA HAS STATED THAT IT WOULD SEEM THE FULL AMOUNT DUE THE UNITED STATES FROM THE IMBRIE ESTATE SHOULD NOW BE DEDUCTED FROM THE AFORESAID ITEM.

IT APPEARS IN PROBATE NO. 32753, DOCKET 73, OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, HOLDING A PROBATE COURT, THERE WAS FILED ON JULY 2, 1925, A COPY OF THE WILL OF ROBERT WHITNEY IMBRIE FOR PROBATE, TOGETHER WITH A PETITION ASKING THAT THE WILL BE ADMITTED TO PROBATE AND THAT KATHERINE IMBRIE BE APPOINTED THE EXECUTRIX OF THE ESTATE. THIS PETITION SET FORTH THAT THE DECEASED LEFT NO RELATIVES OTHER THAN HIS WIFE AND A MATERNAL AUNT AND THAT THE ASSETS OF THE ESTATE CONSISTED OF LOT 144, IN SQUARE 365, WITH A DWELLING THEREON AT 1545 COLUMBIA STREET NW., VALUED AT $3,272; AN UNDIVIDED HALF INTEREST IN UNIMPROVED LOT NO. 5, SQUARE NO. 734, VALUED AT $325, AND PERSONAL PROPERTY VALUED AT $6,145, INCLUDING $1,905.29 CASH IN BANK. THE WILL DATED OCTOBER 1, 1923, NAMED KATHERINE IMBRIE THE SOLE BENEFICIARY OF BOTH THE REAL AND PERSONAL PROPERTY AND REQUESTED THAT SHE BE APPOINTED EXECUTRIX. THIS WAS ADMITTED TO PROBATE BY AN ORDER FILED JULY 2, 1925, AND DIRECTED THAT KATHERINE BE APPOINTED THE EXECUTRIX OF THE ESTATE AND THAT SHE SHOULD FILE A BOND CONDITIONED, AMONG OTHER THINGS, UPON "PAYMENT OF ALL DEBTS AND JUST CLAIMS AGAINST TESTATOR.'

THE PETITION REQUESTED THAT THE EXECUTRIX BE PERMITTED TO GIVE A SPECIAL BOND, WHICH IS PROVIDED FOR IN THE ACTS OF MARCH 3, 1901, 31 STAT. 1234,AND JUNE 30, 1902, 32 STAT. 528 SECTION 103, TITLE 29, WILLS AND ADMINISTRATIONS, DISTRICT OF COLUMBIA CODE, AS FOLLOWS:

IF THE PERSON APPOINTED AS ADMINISTRATOR SHALL BE ENTITLED TO THE RESIDUE OF THE ESTATE AFTER PAYMENT OF THE DEBTS, HE MAY, INSTEAD OF A BOND HEREIN PROVIDED FOR, EXECUTE A BOND, WITH SECURITY APPROVED BY THE COURT, IN SUCH PENALTY AS THE COURT MAY CONSIDER SUFFICIENT, CONDITIONED FOR THE PAYMENT OF ALL THE DEBTS AND CLAIMS AGAINST THE DECEASED, AND ALL DAMAGES WHICH SHALL BE RECOVERED AGAINST HIM AS ADMINISTRATOR; AND WHERE THE ADMINISTRATOR SHALL FILE THE CONSENT IN WRITING OF THOSE ENTITLED TO THE RESIDUE AND THEY SHALL ALL BE OF FULL AGE, THE COURT MAY, IF IT SEEMS FIT, DIRECT THAT ONLY SUCH SPECIAL BOND BE GIVEN, AND IN SUCH CASES THE ADMINISTRATOR SHALL NOT BE REQUIRED TO RETURN ANY INVENTORY OR ACCOUNT, BUT SHALL BE PERSONALLY ANSWERABLE FOR ALL DEBTS, CLAIMS, AND DAMAGES THAT MAY BE RECOVERED AGAINST HIM, IN LIKE MANNER AS THE EXECUTOR WHO GIVES A SIMILAR BOND: * * *

IN SETTLEMENT 46501, DATED APRIL 18, 1927, THERE WAS CERTIFIED AS DUE FROM ROBERT WHITNEY IMBRIE TO THE UNITED STATES $91.01, AND IN SETTLEMENT NO. C-21158-S, DATED MAY 16, 1928, OTHER ITEMS AGGREGATING $1,366.11 WERE FOUND AND CERTIFIED AS DUE FROM HIM. THE ITEM OF $91.01 WAS PAID BY THE SURETY ON THE FORMER OFFICER'S BOND, BUT THE SURETY DECLINED PAYMENT OF THE OTHER ITEMS FOR THE REASON THAT CLAIM AGAINST IT WAS BARRED BY THE PROVISIONS OF THE ACT OF AUGUST 8, 1888, 25 STAT. 387. THESE ITEMS, AGGREGATING $1,366.11, WERE SUBSEQUENTLY REDUCED TO $1,325.86 AND COVER PAYMENTS MADE BY THE OFFICER TO HIMSELF, FROM PUBLIC FUNDS IN HIS POSSESSION, FOR TRANSPORTATION DISAPPROVED BY THE DEPARTMENT OF STATE, SALARY WHILE ON LEAVE WITHOUT PAY, AND SUBSISTENCE IN EXCESS OF THE MAXIMUM ALLOWANCE, AND OTHER IMPROPER CHARGES AGAINST THE GOVERNMENT IN THE ACCOUNT AS RENDERED BY HIM. BY LETTER DATED AUGUST 6, 1928, MRS. IMBRIE REQUESTED COPIES OF THE SETTLEMENTS, AND IN OFFICE LETTER OF AUGUST 17, 1928, THERE WERE FORWARDED TO HER CERTIFIED PHOTOSTATIC COPIES OF THE TWO SETTLEMENTS IN QUESTION, AND SUPPORTING PAPERS, BUT NO ACTION HAS BEEN TAKEN BY HER OR ANYONE ON HER BEHALF TO PAY INTO THE TREASURY OF THE UNITED STATES THIS BALANCE OF $1,325.86 DUE THE UNITED STATES FROM THE ESTATE OF HER DECEASED HUSBAND, NOTWITHSTANDING THE TERMS OF THE ABOVE QUOTED SECTION 103, TITLE 29 OF THE DISTRICT OF COLUMBIA CODE, AND NOTWITHSTANDING THE TERMS OF SECTION 3467, REVISED STATUTES, WHICH PROVIDES:

EVERY EXECUTOR, ADMINISTRATOR * * * WHO PAYS ANY DEBT DUE BY THE PERSON OR ESTATE FROM WHOM OR FOR WHICH HE ACTS, BEFORE HE SATISFIES AND PAYS THE DEBTS DUE TO THE UNITED STATES FROM SUCH PERSON OR ESTATE, SHALL BECOME ANSWERABLE IN HIS OWN PERSON AND ESTATE FOR THE DEBTS SO DUE TO THE UNITED STATES, OR FOR SO MUCH THEREOF AS MAY REMAIN DUE AND UNPAID.

AS HEREINBEFORE INDICATED, MRS. IMBRIE HAD KNOWLEDGE OF THIS CLAIM OF THE UNITED STATES AGAINST THE ESTATE OF HER DECEASED HUSBAND FOR WHICH SHE WAS EXECUTRIX, AND THE DUTY WAS PLACED ON HER BY BOTH SECTION 103, TITLE 29, OF THE DISTRICT OF COLUMBIA CODE, AND THE SECTION 3467, REVISED STATUTES, TO PAY THAT CLAIM BEFORE SHE TOOK POSSESSION IN HER RIGHT UNDER THE WILL, OF THE REAL AND PERSONAL PROPERTY OF THE ESTATE VALUED BY HER IN THE PETITION FOR PROBATE OF THE WILL AT AN AGGREGATE OF $9,741; AND THE SOLICITOR OF THE TREASURY REPORTED SEPTEMBER 26, 1930, THAT ---

THE UNITED STATES ATTORNEY HAS ADVISED THAT KATHERINE GILLESPIE IMBRIE, WIFE OF ROBERT W. IMBRIE, DECEASED, WAS NAMED AS EXECUTRIX AND SOLE BENEFICIARY IN THE WILL; THAT SHE SUBSEQUENTLY QUALIFIED AS EXECUTRIX AND GAVE A BOND IN THE SUM OF $1,000 WITH THE AMERICAN SURETY COMPANY OF NEW YORK AS SURETY UNDER THE PROVISIONS OF SECTION 264 OF THE CODE OF LAWS OF THE DISTRICT OF COLUMBIA, AND THAT UNDER THIS SECTION SHE HAD NO INVENTORY TO FILE OR ACCOUNT TO RENDER SO THAT THE ESTATE WAS ALMOST IMMEDIATELY SETTLED.

I AM NOW IN RECEIPT OF A LETTER OF SEPTEMBER 5, 1930, FROM THE UNITED STATES ATTORNEY AT WASHINGTON, D.C., IN WHICH HE SUGGESTS THAT, SINCE THERE APPEARS TO BE A FUND OF $30,000 STANDING TO THE CREDIT OF MRS. KATHERINE GILLESPIE IMBRIE IN THE TREASURY OF THE UNITED STATES, AND SINCE SHE HAS BECOME PERSONALLY LIABLE FOR THE PAYMENT OF THE GOVERNMENT'S CLAIM BY GIVING A BOND UNDER THE PROVISIONS OF SECTION 264 OF THE CODE OF LAWS OF THE DISTRICT OF COLUMBIA, THIS CLAIM MIGHT NOW BE SET OFF AGAINST THE FUND STANDING TO MRS. IMBRIE'S CREDIT IN THE TREASURY OF THE UNITED STATES. * * *

THE JOINT RESOLUTION OF MARCH 4, 1927, 44 STAT. 1973, PROVIDED:

THAT THE SECRETARY OF THE TREASURY IS AUTHORIZED AND DIRECTED TO PAY TO KATHERINE IMBRIE, WIDOW OF VICE CONSUL ROBERT WHITNEY IMBRIE, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, THE SOME OF $30,000 AS COMPENSATION TO HER FOR THE PHYSICAL AND MENTAL SUFFERING RESULTING FROM AN ATTACK UPON HER AT TEHERAN, PERSIA, ON JULY 2, 1924. THE ACCEPTANCE OF THIS SUM BY KATHERINE IMBRIE SHALL BE IN FULL SETTLEMENT OF ALL CLAIMS OR DEMANDS FOR PERSONAL INJURIES SUFFERED BY HER AND FOR THE DEATH OF HER HUSBAND.

MRS. IMBRIE'S CLAIM FOR PAYMENT OF THE AMOUNT THUS APPROPRIATED IS NOW BEFORE THIS OFFICE FOR ADJUSTMENT AND SETTLEMENT. SEE SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24.

THE COURT OF CLAIMS STATED IN TAGGART V. UNITED STATES, 17 CT.CLS. 322, THAT---

WHERE A PERSON IS BOTH DEBTOR AND CREDITOR OF THE UNITED STATES, IN ANY FORM, THE OFFICERS OF THE TREASURY DEPARTMENT (NOW THE GENERAL ACCOUNTING OFFICE), IN SETTLING THE ACCOUNTS, NOT ONLY HAVE THE POWER BUT ARE REQUIRED IN THE PROPER DISCHARGE OF THEIR DUTIES, TO SET OFF THE ONE INDEBTEDNESS AGAINST THE OTHER, AND TO ALLOW AND CERTIFY FOR PAYMENT ONLY THE BALANCE FOUND DUE ON ONE SIDE OR THE OTHER. * * *

ACCORDINGLY, THIS OFFICE HAS NO CHOICE BUT TO DEDUCT FROM THE $30,000 OTHERWISE DUE MRS. IMBRIE, UNDER THE ABOVE-QUOTED JOINT RESOLUTION, THE INDEBTEDNESS OF $1,325.86 DUE THE UNITED STATES FROM THE ESTATE OF HER DECEASED HUSBAND, AND FOR WHICH, AS INDICATED IN THE ABOVE REFERRED TO SUGGESTIONS OF THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA AND THE SOLICITOR OF THE TREASURY, SHE HAS BECOME PERSONALLY LIABLE UNDER SECTION 3476, REVISED STATUTES, AND SECTION 103, TITLE 29, OF THE DISTRICT OF COLUMBIA CODE.

A COPY OF THIS DECISION WILL BE TRANSMITTED TO MRS. IMBRIE, AND, IN DUE COURSE, A CHECK FOR THE BALANCE OF $28,674.14 WILL BE FORWARDED TO HER.