A-20658, FEBRUARY 16, 1928, 7 COMP. GEN. 486

A-20658: Feb 16, 1928

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IS USED IN ITS TECHNICAL AND RESTRICTED SENSE AND INCLUDES ONLY EXECUTORS OR ADMINISTRATORS. UPON PROOF OF THE EXISTENCE OF BLOOD RELATIONS TO WHOM THE FUND WILL BE DISTRIBUTED. 1928: THERE IS FOR CONSIDERATION THE PROPRIETY OF PAYMENT TO A BLOOD RELATIVE OF THOMAS S. THAT NO CLAIM HEREUNDER SHALL BE ALLOWED IF MADE BY ANY PERSON WHO IS AN ASSIGNEE OF SUCH CLAIM. THERE ARE THREE CLASSES OF PERSONS WHOSE CLAIMS MAY BE CONSIDERED AND ALLOWED. HERE HEIRS OF THE BLOOD HAVE BEEN CONSIDERED AND PAYMENT FOR THEIR BENEFIT HAS BEEN SPECIFICALLY PROVIDED TO THE LEGAL REPRESENTATIVE OF THE ORIGINAL CLAIMANT. NOTWITHSTANDING THIS CLARITY OF EXPRESSION IT IS CONTENDED THE TERM "LEGAL REPRESENTATIVES" HAS A BROADER MEANING.

A-20658, FEBRUARY 16, 1928, 7 COMP. GEN. 486

PAY, LONGEVITY - SETTLEMENTS UNDER ACT OF JANUARY 29, 1927 - "LEGAL REPRESENTATIVE" THE TERM "LEGAL REPRESENTATIVE" USED IN THE ACT OF JANUARY 29, 1927, 44 STAT. 1054, DIRECTING THAT CLAIMS THEREUNDER SHALL BE PAYABLE TO THE CLAIMANT, HIS WIDOW, OR HIS LEGAL REPRESENTATIVE, IS USED IN ITS TECHNICAL AND RESTRICTED SENSE AND INCLUDES ONLY EXECUTORS OR ADMINISTRATORS. SETTLEMENTS THEREUNDER ACCORDINGLY MAY BE MADE TO BUT THREE CLASSES: THE CLAIMANT HIMSELF, HIS WIDOW, OR HIS EXECUTOR OR ADMINISTRATOR, UPON PROOF OF THE EXISTENCE OF BLOOD RELATIONS TO WHOM THE FUND WILL BE DISTRIBUTED.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 16, 1928:

THERE IS FOR CONSIDERATION THE PROPRIETY OF PAYMENT TO A BLOOD RELATIVE OF THOMAS S. DOEBLER, LATE LIEUTENANT, UNITED STATES ARMY, OF $116.89, FOUND DUE AS LONGEVITY PAY AUTHORIZED TO BE COUNTED BY THE ACT OF JANUARY 29, 1927, 44 STAT. 1054, 1055.

THE STATUTE AUTHORIZING THE PAYMENT OF SUCH CLAIM CONTAINS THE SPECIFIC DIRECTION THAT:

* * * EVERY SUCH CLAIM SHALL BE PAYABLE TO THE CLAIMANT OR TO HIS WIDOW OR TO HIS LEGAL REPRESENTATIVE: PROVIDED, THAT NO CLAIM HEREUNDER SHALL BE ALLOWED IF MADE BY ANY PERSON WHO IS AN ASSIGNEE OF SUCH CLAIM, NOR TO A LEGAL REPRESENTATIVE WITHOUT PROOF OF THE EXISTENCE OF BLOOD RELATIONS TO WHOM THE FUND WOULD BE DISTRIBUTED. * * *

THE LANGUAGE SEEMS CLEAR. THERE ARE THREE CLASSES OF PERSONS WHOSE CLAIMS MAY BE CONSIDERED AND ALLOWED--- THE CLAIMANT, HIS WIDOW, OR HIS LEGAL REPRESENTATIVE, TO THE LATTER, HOWEVER, ONLY ON PROOF OF THE EXISTENCE OF BLOOD RELATIONS TO WHOM THE FUND WOULD BE DISTRIBUTED. THE LANGUAGE NEGATIVES PAYMENT TO AN HEIR AS SUCH. HERE HEIRS OF THE BLOOD HAVE BEEN CONSIDERED AND PAYMENT FOR THEIR BENEFIT HAS BEEN SPECIFICALLY PROVIDED TO THE LEGAL REPRESENTATIVE OF THE ORIGINAL CLAIMANT.

NOTWITHSTANDING THIS CLARITY OF EXPRESSION IT IS CONTENDED THE TERM "LEGAL REPRESENTATIVES" HAS A BROADER MEANING, THAT IT INCLUDES HEIRS OF THE BLOOD, CITING, AMONG OTHERS, EMERSON V. HALL, 13 PET. 409, WHERE THE SUPREME COURT, IN VIEW OF THE TITLE AND PURPOSE OF THE ACT THERE CONSIDERED, HELD THE TERM "LEGAL REPRESENTATIVE" IN THAT ACT AUTHORIZED PAYMENT TO THE HEIRS, AND REFUSED TO REQUIRE AN ACCOUNTING TO THE EXECUTOR FOR THE BENEFIT OF CREDITORS OF THE ANCESTOR WHOSE SERVICES WERE REWARDED BY THE ACT CONSIDERED; THAT APPLYING THAT MEANING TO THE PHRASE, UNDER THE ACT OF JUNE 30, 1906, 34 STAT. 750, THERE IS AUTHORITY TO CONSIDER AND PAY A CLASS OF CLAIMS WHICH PRIOR TO THE ACT OF 1927 WERE BARRED IN THE ACCOUNTING OFFICE BY REASON OF FORMER ADJUDICATIONS BY THE ACCOUNTING OFFICERS AND IN THE COURT OF CLAIMS BY THE STATUTE OF LIMITATIONS, WHERE THE AMOUNT INVOLVED IS LESS THAN $500 TO BLOOD RELATIVES WITHOUT ADMINISTRATION OF THE ESTATE, NOTWITHSTANDING THAT IN PROVIDING FOR THE FURTHER CONSIDERATION AND ADJUSTMENT OF THE CLAIMS THE CONGRESS HAS RESTRICTED PAYMENT IN THE MANNER QUOTED ABOVE. EXTENDED REPRESENTATIONS ARE MADE THAT WHERE THE AMOUNT PAYABLE IS SMALL THE COST OF ADMINISTRATION WOULD LARGELY DISSIPATE THE FUND, THE ACT THUS PROVIDING SUBSTANTIALLY NO RELIEF IN THE CASE OF SMALL CLAIMS. TAKING UP THE LAST CONTENTION FIRST, IT MAY BE SAID IF, BECAUSE OF THE RESTRICTION, THE NET PROCEEDS IN A GIVEN CASE ARE GREATLY REDUCED, SUCH A RESULT MUST HAVE BEEN CONTEMPLATED BY THE STATUTE. CERTAINLY THERE IS NO AUTHORITY IN ANY OFFICER OF THE GOVERNMENT TO IGNORE THE PLAIN TERMS OF THE STATUTE TO AVOID SUCH A RESULT.

THE ACT OF JUNE 30, 1906, PROVIDES WHEN THE AMOUNT DUE THE ESTATE OF A DECEASED OFFICER OR ENLISTED MAN OF THE ARMY IS LESS THAN $500 AND NO DEMAND IS PRESENTED BY A LEGALLY APPOINTED REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE WIDOW OR LEGAL HEIRS IN THE ORDER OF PRECEDENCE STATED IN THE ACT. THE LAW WAS IN EFFECT A LEGALIZATION OF THE LONG PRACTICE OF THE ACCOUNTING OFFICERS IN MAKING PAYMENTS OF SMALL AMOUNTS TO WIDOWS OR OTHER HEIRS WITHOUT ADMINISTRATION IN ORDER TO SAVE EXPENSES. THE STATUTE IS A PERMISSIVE AND NOT A MANDATORY ONE. 23 COMP. DEC. 95. IT DOES NOT REQUIRE THAT PAYMENT SHALL BE MADE TO ANYONE OTHER THAN A LEGALLY APPOINTED REPRESENTATIVE WHEN THERE IS CONTEST AS TO HEIRS NOR IN CASES WHERE THERE ARE CREDITORS WHO, PRIOR TO THE SETTLEMENT, HAVE PRESENTED ACCOUNTS SHOWING INDEBTEDNESS TO THEM. 20 COMP. DEC. 740; 24 ID. 437.

IF THE ACT OF JUNE 30, 1906, WERE APPLICABLE TO PAYMENTS MADE UNDER THE JANUARY 29, 1927, LAW, IT IS NOT MANDATORY BUT DISCRETIONARY WITH ACCOUNTING OFFICERS, AS THE INTERESTS OF THE GOVERNMENT REQUIRE, TO MAKE SETTLEMENT WITH THE HEIR OR TO REQUIRE ADMINISTRATION. THE ACT HAS BEEN SO CONSTRUED AND IN ANY CASE WHERE THE INTERESTS OF THE GOVERNMENT JUSTIFIED THE ACCOUNTING OFFICERS HAVE REQUIRED ADMINISTRATION EVEN THOUGH THE AMOUNT INVOLVED WAS LESS THAN $500. BUT THIS ACT IS NOT APPLICABLE TO CLAIMS PRESENTED UNDER THE ACT OF 1927; THERE SPECIAL PROVISION IS MADE AS TO PAYMENT AND TO THAT EXTENT SUPERSEDE THE GENERAL LAW. HAD IT BEEN INTENDED THE CLAIMS PROVIDED FOR IN THE ACT OF 1927 SHOULD BE PAID UNDER THE GENERAL LAW APPLICABLE TO SETTLEMENT OF CLAIMS FOR ARREARS OF PAY APT WORDS TO ACCOMPLISH SUCH PURPOSE SHOULD AND COULD HAVE BEEN USED; INSTEAD A LIMITATION NOT CONTAINED IN THE GENERAL LAW WAS INSERTED IN THE ACT.

THE CLEAR AND SPECIFIC LANGUAGE USED IN THE 1927 LAW THAT CLAIMS THEREUNDER SHALL BE PAYABLE TO THE CLAIMANT OR TO HIS WIDOW OR LEGAL REPRESENTATIVE AND THAT IT SHALL NOT BE PAYABLE TO A LEGAL REPRESENTATIVE WITHOUT PROOF OF THE EXISTENCE OF BLOOD RELATIONS TO WHOM THE FUND WOULD BE DISTRIBUTED LEAVES LITTLE ROOM FOR DOUBT OR CONJECTURE AS TO THE LEGISLATIVE INTENT. IF THE ACT OF 1906 WERE APPLICABLE, THE PROVISION IN THE 1927 LAW FOR PAYMENT TO THE WIDOW IS ENTIRELY SURPLUS. WHERE THE WORDS OF THE LAW ARE CLEAR AND PRECISE AND THE TRUE MEANING EVIDENT ON THE FACE OF THE ENACTMENT, THERE IS NO ROOM FOR CONSTRUCTION. STUDEBAKER V. PERRY, 184 U.S. 258.

IT WILL BE NOTED THAT PAYMENTS TO A LEGAL REPRESENTATIVE ARE CONDITIONED ON THE EXISTENCE OF BLOOD RELATIONS TO WHOM THE FUND WOULD BE DISTRIBUTED. THE DUTY OF AN ADMINISTRATOR IS TO SETTLE AND DISTRIBUTE THE ESTATE UNDER THE SUPERVISION OF THE COURTS, WHILE ACCOUNTING OFFICERS MAKE SETTLEMENT TO THE HEIRS. BY THE USE OF THE WORD "DISTRIBUTED" IT IS CLEAR THAT CONGRESS HAD IN MIND THE DIVISION OF THE ESTATE BY AN EXECUTOR OR ADMINISTRATOR.

THE CLAIMS UNDER THE ACT OF JANUARY 29, 1927, RELATE TO SERVICE BETWEEN 1838 AND 1882. MOST OF THE PERSONS ENTITLED THEREUNDER ARE LONG SINCE DECEASED; ASCERTAINMENT OF ALL HEIRS EQUALLY ENTITLED TO TAKE WOULD BE A DIFFICULT AND IMPRACTICABLE MATTER FOR THE GOVERNMENT TO UNDERTAKE AND OBVIOUSLY, FOR THIS REASON PAYMENTS WERE RESTRICTED TO THE ORIGINAL CLAIMANT, OR HIS WIDOW, PERSONS EASY OF IDENTIFICATION, OR TO THE LEGAL REPRESENTATIVE OF THE ORIGINAL CLAIMANT.

THE MEANING OF THE WORDS "REPRESENTATIVE," "LEGAL REPRESENTATIVE," "PERSONAL REPRESENTATIVE" IN THEIR PROPER LEGAL SENSE IS THAT THEY REFER TO THE PERSON CONSTITUTED REPRESENTATIVE BY THE PROPER COURT. THOMPSON, ADM-R. V. UNITED STATES, 20 CT.CLS. 276.

IN BRIGGS V. WALKER, 171 U.S. 466, 471, THE SUPREME COURT SAID:

THE PRIMARY AND ORDINARY MEANING OF THE WORDS "REPRESENTATIVES," OR "LEGAL REPRESENTATIVE," OR ,PERSONAL REPRESENTATIVES," WHEN THERE IS NOTHING IN THE CONTEXT TO CONTROL THEIR MEANING, IS ,EXECUTORS OR ADMINISTRATORS," THEY BEING THE REPRESENTATIVES CONSTITUTED BY THE PROPER COURTS. IN RE CRAWFORD'S TRUST, 2 DREWRY, 230; IN RE WYNDHAM'S TRUSTS, L.R. 1, EQ. 290; 2 JARMAN ON WILLS, C. 29, SEC. 5 (5TH ED.) 957, 966; WILLIAMS ON EXECUTORS, PT. 3, BK. 3, C. 2, SEC. 2 (7), (9TH ED.) 992; COX V. CURWEN, 118 MASS. 198; HALSEY V. PATTERSON, 10 STEW. (37 N.J.EQ.) 445.

IN THAT CASE THE COURT DISCUSSED ITS FORMER HOLDING IN THE CASE OF EMERSON V. HALL, CITED AND RELIED UPON IN THE CONTENTION NOW BEING MADE TO THIS OFFICE UNDER THE ACT OF 1927, AS FOLLOWS:

IN EMERSON V. HALL, 13 PET. 409, CITED BY THE PLAINTIFF IN ERROR, IN WHICH MONEY PAID BY THE UNITED STATES TO THE HEIRS AT LAW, AS "THE LEGAL REPRESENTATIVES OF WILLIAM EMERSON," UNDER THE ACT OF MARCH 3, 1831, C. 102, 6 STAT. 464, WAS HELD NOT TO BE ASSETS IN THEIR HANDS FOR THE PAYMENT OF HIS CREDITORS, THE ACT, IN ITS TITLE, WAS EXPRESSED TO BE "FOR THE RELIEF OF THE HEIRS OF WILLIAM EMERSON, DECEASED; " AND IT GRANTED THE MONEY AS A REWARD FOR SERVICES, MERITORIOUS INDEED, BUT VOLUNTARILY RENDERED BY EMERSON, NOT UNDER ANY LAW OR CONTRACT, AND IMPOSING NO OBLIGATION, LEGAL OR EQUITABLE, UPON THE GOVERNMENT TO COMPENSATE HIM THEREFOR, AND THE MONEY WAS THEREFORE HELD TO HAVE BEEN RECEIVED BY HIS HEIRS AS A GIFT OR PURE DONATION.

IN THOMPSON, ADM-R. V. UNITED STATES, 20 CT.CLS. 276, 278, THE COURT SAID:

THE ORDINARY MEANING OF THE WORDS "REPRESENTATIVE," "LEGAL REPRESENTATIVE," "PERSONAL REPRESENTATIVE," IS, THAT THEY REFER TO THE PERSON CONSTITUTED REPRESENTATIVE BY THE PROPER COURT, AND THE ONUS IS UPON THOSE ATTEMPTING TO MAINTAIN A DIFFERENT CONSTRUCTION TO SHOW A DIFFERENT MEANING. 2 JARMAN ON WILLS, 120; HALLOWAY V. CLARKSON, 2 HARE, 523, 118 MASS. 198, BOUVIER LAW DICTIONARY, VOL. 2, 410-576.

THE MEANING OF THE WORDS "LEGAL REPRESENTATIVES," AS USED IN A STATUTE OF THE UNITED STATES WITH NO QUALIFYING EXPRESSIONS, HAS BEEN CONSTRUED AND INTERPRETED BY THIS COURT IN TWO CASES--- CHAPLIN ET AL. V. UNITED STATES, AND SWAN ET AL. V. THE UNITED STATES (19 C.CLS.R. 424, 50.)

THE LOCAL PROBATE COURTS HAVING JURISDICTION OF ESTATES ARE MUCH BETTER QUALIFIED TO DETERMINE QUESTIONS OF INHERITANCE THAN THE OFFICERS OF THE TREASURY DEPARTMENT, WHO ARE NOT PRESUMED TO KNOW THE LAWS OF INHERITANCE AS THEY ARE CHANGED AND MODIFIED BY THE LOCAL LAWS OF THE DIFFERENT STATES.

IT MUST BE TAKEN AS ESTABLISHED THAT THE PRIMARY AND ORDINARY MEANING OF THE TERM "LEGAL REPRESENTATIVE" IS EXECUTOR OR ADMINISTRATOR. "IN CONSTRUING STATUTES WORDS ARE TAKEN IN THEIR ORDINARY SENSE," WATER POWER CO. V. STREET RY. CO., 172 U.S. 475, 491, UNLESS THE CONTEXT OTHERWISE REQUIRES. THE STATUTE HERE IN QUESTION IS BARE OF A WORD, A PHRASE, OR A SENTENCE QUALIFYING IN ANY FORM OR MANNER THE TERM "LEGAL REPRESENTATIVE; " NEITHER THE TITLE OF THE ACT NOR ITS LANGUAGE DISCLOSES ANY PURPOSE THAT IT WAS DESIGNED TO PROVIDE FOR HEIRS, OR THAT WOULD JUSTIFY OR PERMIT AN INTERPRETATION OF THE TERM "LEGAL REPRESENTATIVE" OTHER THAN IN ANY BUT ITS PRIMARY AND ORDINARY SENSE. WHATEVER OF HARDSHIP APPEARS IS ENTIRELY DUE TO THE PRECISE AND PLAIN TERMS OF THE STATUTE. IT MUST THEREFORE BE HELD THAT ANY AND ALL CLAIMS UNDER THE ACT OF JANUARY 29, 1927, WITHOUT REGARD TO THE AMOUNT, ARE PAYABLE ONLY (1) TO THE ORIGINAL CLAIMANT, (2) TO HIS WIDOW, AND (3) TO THE LEGAL REPRESENTATIVE OF THE ORIGINAL CLAIMANT UPON PROOF OF THE EXISTENCE OF BLOOD RELATIONS TO WHOM THE FUND WILL BE DISTRIBUTED. SETTLEMENT IN THE PRESENT CASE WILL BE WITHHELD PENDING SUBMISSION OF THE NECESSARY EVIDENCE OF THE APPOINTMENT AND QUALIFICATION OF AN ADMINISTRATOR.