A-21036, JANUARY 31, 1928, 7 COMP. GEN. 451

A-21036: Jan 31, 1928

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VETERANS' BUREAU - DISTRIBUTION OF ESTATES - PAYMENTS OF DEBTS THE AFFIDAVIT OF THE MOTHER OF A BENEFICIARY OF THE VETERANS' BUREAU WHO CLAIMS TO HAVE FURNISHED ROOM AND BOARD OR SERVICES OF A SIMILAR CHARACTER TO HER SON. WHEREIN IS ALLEGED AN EXPRESSION BY THE DECEDENT OF AN INTENTION TO REIMBURSE HIS MOTHER FOR SUCH SERVICES WHICH HAD BEEN FURNISHED HIM PRIOR TO THE EXPRESSION OF INTENTION TO PAY. NOR WOULD AN AFFIDAVIT OF THE MOTHER SIMPLY ALLEGING "THE CONTRACT WAS ORAL BETWEEN MY SON AND MYSELF" ESTABLISH A CHARGE AGAINST THE ESTATE OF THE SON FOR NURSING SERVICES. IF THE DISTRIBUTION OF THE AMOUNT DUE THE ESTATE OF A DECEASED BENEFICIARY OF THE VETERANS' BUREAU UNDER SETTLEMENT OF THE GENERAL ACCOUNTING OFFICE APPEARS NOT TO HAVE BEEN ALTOGETHER STRICTLY IN ACCORDANCE WITH THE LAWS OF THE DOMICILE OF THE DECEDENT WITH RESPECT TO CERTAIN EXEMPTIONS ALLOWED THE WIDOW AND WITH RESPECT TO PAYMENT OF PREFERRED CLAIMS.

A-21036, JANUARY 31, 1928, 7 COMP. GEN. 451

VETERANS' BUREAU - DISTRIBUTION OF ESTATES - PAYMENTS OF DEBTS THE AFFIDAVIT OF THE MOTHER OF A BENEFICIARY OF THE VETERANS' BUREAU WHO CLAIMS TO HAVE FURNISHED ROOM AND BOARD OR SERVICES OF A SIMILAR CHARACTER TO HER SON, A BENEFICIARY OF THE VETERANS' BUREAU, PRIOR TO HIS DEATH, CORROBORATED BY THE AFFIDAVITS OF TWO DISINTERESTED PERSONS, WHEREIN IS ALLEGED AN EXPRESSION BY THE DECEDENT OF AN INTENTION TO REIMBURSE HIS MOTHER FOR SUCH SERVICES WHICH HAD BEEN FURNISHED HIM PRIOR TO THE EXPRESSION OF INTENTION TO PAY, MAY NOT BE CONSIDERED AS ESTABLISHING THE EXISTENCE OF A PREEXISTING CONTRACT BETWEEN THE MOTHER AND SON TO PAY FOR THE SERVICES RENDERED SUFFICIENT TO CREATE A CHARGE AGAINST THE AMOUNT OF WAR RISK DISABILITY COMPENSATION DUE THE ESTATE OF THE SON. NOR WOULD AN AFFIDAVIT OF THE MOTHER SIMPLY ALLEGING "THE CONTRACT WAS ORAL BETWEEN MY SON AND MYSELF" ESTABLISH A CHARGE AGAINST THE ESTATE OF THE SON FOR NURSING SERVICES. IF THE DISTRIBUTION OF THE AMOUNT DUE THE ESTATE OF A DECEASED BENEFICIARY OF THE VETERANS' BUREAU UNDER SETTLEMENT OF THE GENERAL ACCOUNTING OFFICE APPEARS NOT TO HAVE BEEN ALTOGETHER STRICTLY IN ACCORDANCE WITH THE LAWS OF THE DOMICILE OF THE DECEDENT WITH RESPECT TO CERTAIN EXEMPTIONS ALLOWED THE WIDOW AND WITH RESPECT TO PAYMENT OF PREFERRED CLAIMS, THE SETTLEMENT WILL NOT BE DISTURBED WHERE PAYMENT HAS BEEN MADE AND ACCEPTED, IN THE ABSENCE OF A PROTEST FILED AGAINST THE SETTLEMENT AND ADVERSELY TO THE CLAIMS OF THE PERSON OR PERSONS TO WHOM THE AMOUNT OF THE ESTATE WAS DISTRIBUTED UNDER THE SETTLEMENT.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JANUARY 31, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 23, 1927, AS FOLLOWS:

NOTICE HAS BEEN RECEIVED OF CERTAIN DISALLOWANCES BY YOUR OFFICE OF CLAIMS FOR ACCRUED COMPENSATION AND INSURANCE DUE ESTATES OF DECEASED PAYEES, WHICH WERE SUBMITTED BY THIS OFFICE FOR CERTIFICATION OF PAYMENT. THESE CLAIMS WERE SUBMITTED IN ACCORDANCE WITH THE REQUIREMENTS OF YOUR OFFICE AS SET FORTH IN COMPTROLLER DECISION A 17637, DATED 4-13-27, COVERING CLAIMS FOR BOARD, CARE, AND OTHER SERVICES, WHICH READS:

"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.'

THE FILES OF THIS OFFICE INDICATE THAT IN EACH CASE DISALLOWED EVIDENCE OF A CONTRACT WAS SUBMITTED WITH THE CLAIM. IT WOULD APPEAR THAT A DIFFERENT INTERPRETATION IS PLACED ON THE DECISION BY THE TWO OFFICES INVOLVED AND THAT MORE DEFINITE INSTRUCTIONS SHOULD BE GIVEN. THE EVIDENCE SECURED BY THIS OFFICE IS AN AFFIDAVIT OF THE CLAIMANT, WHICH SETS FORTH THE FACTS THAT THE DECEDENT HAD AGREED TO PAY A CERTAIN GIVEN SUM AT A CERTAIN GIVEN RATE FOR THE SERVICES PERFORMED OR FURNISHED, SUPPORTED BY THE AFFIDAVITS OF TWO DISINTERESTED PERSONS CORROBORATING THE FACTS AS SET FORTH IN THE CLAIMANT'S AFFIDAVIT.

IN THE CASE OF THE CLAIM OF LUCAS LOPEZ, CERT. NO. 0165176, PRE 0200118- LAW. FOR REIMBURSEMENT OF A GROCERY BILL INCURRED DURING THE LAST ILLNESS OF CRISTOBAL OQUENDO, C-654462, IT IS NOT UNDERSTOOD WHY PAYMENT WAS DISALLOWED TO MR. LOPEZ AND THE AMOUNT DUE PAID TO THE WIDOW, SINCE, ACCORDING TO THE INTESTACY LAWS OF PORTO RICO, THERE IS NO EXEMPTION OR ALLOWANCE TO THE WIDOW, AND THE BILL FOR GROCERIES IS A DEBT AGAINST THE ESTATE OF THE DECEDENT.

THE CLAIM OF EDNA G. WESTERFIELD, CERT. NO. 0146955, CLAIM NO. 0176227 FOR ROOM AND CARE FURNISHED ARTHUR M. WESTERFIELD, C-542,419, WAS DISALLOWED AND SETTLEMENT MADE ONE-HALF TO MRS. WESTERFIELD (WIDOW) AND ONE-HALF TO THE MOTHER AND FATHER OF THE DECEDENT. THIS DISTRIBUTION IS NOT UNDERSTOOD IN THAT UNDER THE CIVIL CODE OF THE STATE OF CALIFORNIA, SECTION 690, COMPENSATION IS EXEMPT FROM EXECUTION AND PAYABLE TO THE WIDOW. THE CODE FURTHER PROVIDES THAT ANY SUM DUE A DECEDENT'S ESTATE NOT IN EXCESS OF $2,500.00 MAY BE PAID TO THE WIDOW AFTER PAYMENT OF FUNERAL EXPENSES AND EXPENSES OF LAST ILLNESS.

THESE QUESTIONS ARE SUBMITTED WITH A VIEW TO OBTAINING AN EXPRESSION FROM YOUR OFFICE ON THE PROBLEMS INVOLVED IN THE DISTRIBUTION OF THESE AMOUNTS, SO THAT THE PERSONS ENTITLED MAY RECEIVE THE AMOUNTS DUE THEM WITH THE LEAST POSSIBLE DELAY AND PERSONS NOT ENTITLED WILL NOT BE CALLED UPON TO SUBMIT WORTHLESS EVIDENCE PROCURED AT CONSIDERABLE TROUBLE AND EXPENSE TO THEM.

YOUR LETTER REFERS TO FOUR SETTLEMENTS MADE BY THIS OFFICE WHICH WILL BE GIVEN CONSIDERATION SEPARATELY AS FOLLOWS:

1. ADELAIDE C. PRETZEL FILED CLAIM FOR $276.55, THE BALANCE OF DISABILITY COMPENSATION DUE THE ESTATE OF HER SON, ALFRED H. PRETZEL, WORLD WAR VETERAN WHO DIED AUGUST 13, 1926, $53.90 OF THE AMOUNT BEING CLAIMED AS REIMBURSEMENT OF EXPENSES OF LAST SICKNESS AND THE BALANCE ON ACCOUNT OF AN UNPAID BILL OF $250 FOR ROOM AND BOARD FURNISHED DURING THE YEARS 1924, 1925, AND 1926. IN SETTLEMENT NO. 0163485, DATED SEPTEMBER 23, 1927, THIS OFFICE ALLOWED THE AMOUNT OF $53.90 AS REIMBURSEMENT FOR EXPENSES OF LAST SICKNESS, WHICH AMOUNT WAS PAID BY THE DISBURSING OFFICER OF THE VETERANS' BUREAU, OCTOBER 3, 1927, PER CHECK NO. 109918. THE REMAINDER OF THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE EVIDENCE FILED WITH THE RECORD WAS NOT DEEMED SUFFICIENT, UNDER THE DECISION OF THIS OFFICE DATED APRIL 13, 1927, 6 COMP. GEN. 667, 669, FROM WHICH YOU QUOTED, TO ESTABLISH THE EXISTENCE OF A PREEXISTING CONTRACT BETWEEN THE MOTHER AND THE VETERAN FOR FURNISHING THE ROOM AND BOARD, THE EVIDENCE CONSISTING OF AN AFFIDAVIT OF THE MOTHER CORROBORATED BY THE AFFIDAVITS OF TWO DISINTERESTED PERSONS WHO APPARENTLY WERE INTIMATELY ACQUAINTED WITH THE FAMILY LIFE AND SAID TO BE IN A POSITION TO KNOW THE FACTS. THE AFFIDAVIT OF THE MOTHER THE FOLLOWING STATEMENT IS MADE:

AND, FURTHER, DEPONENT STATES THAT DURING THE YEARS 1924, 1925, AND 1926, PRIOR TO HIS DEATH IN AUGUST, 1926, HE WAS ALLOWED AT HIS OWN REQUEST DURING PERIODS OF APPARENTLY IMPROVED CONDITION IN HIS HEALTH TO GO TO HER HOME IN ORDER TO HAVE THE COMFORT AND SOLACE OF DEPONENT'S COMPANY AND CARE; THAT AFTER HIS FINAL RETURN TO THE UNITED STATES HOSPITAL AT MAYWOOD, ILLINOIS, AND NOT LONG BEFORE HIS DEATH, SAID ALFRED HENRY PRETZEL SAID TO SAID DEPONENT THAT NOW THAT HE WAS RECEIVING COMPENSATION FROM THE GOVERNMENT HE FELT THAT HE OUGHT TO REIMBURSE HER FOR EXPENSE SHE HAD BEEN UNDER IN TAKING CARE OF HIM DURING THE TIMES HE HAD BEEN AT HOME DURING HIS ILLNESS AND THAT HE HAD FIGURED HE HAD BEEN THERE ABOUT FIFTY WEEKS ALL TOLD AND THAT AT THE RATE OF FIVE DOLLARS PER WEEK THIS WOULD AMOUNT TO TWO HUNDRED AND FIFTY DOLLARS ($250.00) WHICH SUM HE FELT HE OWED HER AND THAT IT WAS HIS INTENTION TO PAY THIS AMOUNT OUT OF HIS COMPENSATION AS HE RECEIVED SAME FROM TIME TO TIME TO SAID DEPONENT, BUT THAT SAID ALFRED HENRY PRETZEL DIED BEFORE HE WAS ABLE TO CARRY OUT SAID AGREEMENT.

THE FACTS IN THIS AFFIDAVIT DO NOT SHOW THE EXISTENCE OF A PREEXISTING CONTRACT BETWEEN THE MOTHER AND SON. AT BEST, THERE IS SHOWN TO HAVE BEEN ONLY AN EXPRESSION OF AN INTENTION OR PROMISE BY THE SON TO REIMBURSE HIS MOTHER AFTER THE SERVICES HAD BEEN PERFORMED BY THE MOTHER FOR LOVE AND AFFECTION WITHOUT ANY EXPECTATION OF RECEIVING REIMBURSEMENT IN MONEY. THE ESSENTIAL ELEMENTS OF THE CONTRACT ARE NOT DISCLOSED. THE EXPRESSION BY THE DECEDENT OF AN INTENTION TO PAY FOR THE SERVICES WHICH THE MOTHER HAD RENDERED WOULD NOT CREATE A CHARGE AGAINST HIS ESTATE. 24 CORPUS JURIS, 279, 280, CITING, AMONG OTHER AUTHORITIES, TWO CASES DECIDED BY THE COURTS OF ILLINOIS, WHICH STATE WAS THE DOMICILE OF THE DECEDENT, TO WIT, SMITH V. BIRDSALL, 106 ILL.A. 264; CLAWSON V. MOORE, 29 ILL.A. 296. IT IS ALSO SETTLED THAT CLAIMS AGAINST THE ESTATE OF A DECEDENT MADE BY NEAR RELATIVES FOR PERSONAL SERVICES REQUIRE STRONGER PROOF TO ESTABLISH THEM THAN SIMILAR CLAIMS BY STRANGERS. 24 CORPUS JURIS, 282, 283, CITING SMITH V. BIRDSALL, SUPRA, INVOLVING A CLAIM BY ONE STANDING IN LOCO PARENTIS AGAINST THE ESTATE OF A CHILD. IT THUS APPEARS THAT THE DISALLOWANCE OF THE MOTHER'S CLAIM FOR BOARD AND ROOM IN THIS CASE WAS CORRECT. ACCORDINGLY, THE SETTLEMENT MUST BE AND IS SUSTAINED, AND PAYMENT OF THE BALANCE DUE THE ESTATE OF THE DECEASED BENEFICIARY WILL REMAIN SUSPENDED PENDING RECEIPT OF A CLAIM SUPPORTED BY EVIDENCE SUFFICIENT TO ESTABLISH THE LEGAL RIGHT OF THE CLAIMANT TO THE AMOUNT CLAIMED.

2. EDNA G. WESTERFIELD FILED CLAIM IN THE AMOUNT OF $56, THE BALANCE OF DISABILITY COMPENSATION DUE THE ESTATE OF HER HUSBAND, ARTHUR M. WESTERFIELD, BENEFICIARY OF THE VETERANS' BUREAU, WHO DIED JANUARY 17, 1925, AS FOR ROOM AND CARE FURNISHED FROM JANUARY 1 TO 17, 1925. IN THE SETTLEMENT OF THE CLAIM NO ALLOWANCE WAS MADE ON THE BASIS OF THE ROOM AND CARE FURNISHED BUT THE AMOUNT DUE THE ESTATE OF THE VETERAN WAS DISTRIBUTED, ONE-HALF TO THE WIFE (SETTLEMENT NO. 0146955, DATED MARCH 4, 1927, PAID BY THE DISBURSING OFFICER OF THE VETERANS' BUREAU, MARCH 21, 1927, CHECK NO. 56568), AND ONE-HALF TO THE FATHER AND MOTHER (SETTLEMENT NO. 0164376, DATED OCTOBER 7, 1927, AND PAID BY THE DISBURSING OFFICER OF THE VETERANS' BUREAU OCTOBER 21, 1927, BY CHECKS NOS. 11590 AND 11591). WHILE THERE MAY BE SOME QUESTION AS TO WHETHER THE DISTRIBUTION AS THUS MADE WAS STRICTLY IN ACCORDANCE WITH THE STATUTES OF THE STATE IN WHICH THE VETERAN DIED, PAYMENT UNDER THE SETTLEMENTS HAVING BEEN MADE AND ACCEPTED THE SETTLEMENTS WILL NOT NOW BE DISTURBED.

3. EDWARD VERYL HERRING, BENEFICIARY OF THE VETERANS' BUREAU, DIED DECEMBER 24, 1926. THERE WAS DUE HIS ESTATE IN UNPAID DISABILITY COMPENSATION THE AMOUNT $181.93, AND AN UNPAID CHECK FOR $100, A TOTAL OF $281.93. THE WIDOW, MRS. MARJORIE HARTLEY HERRING, FIELD CLAIM FOR THE ENTIRE AMOUNT DUE THE ESTATE, SHOWING BY RECEIPTED UNDERTAKER'S BILL THAT SHE HAD PAID $185 FOR FUNERAL EXPENSES OVER AND ABOVE THE AMOUNT OF $100 AUTHORIZED AND PAID BY THE VETERANS' BUREAU UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' ACT. IT APPEARED ALSO THAT SHE WAS THE NATURAL GUARDIAN OF TWO MINOR CHILDREN OF THE DECEASED VETERAN. THE PROOF APPEARING SUFFICIENT, THIS OFFICE AUTHORIZED PAYMENT OF THE CHECK FOR $100 TO THE WIDOW AND ISSUED SETTLEMENT NO. 0164279 OF OCTOBER 6, 1927, IN HER FAVOR, FOR $181.93, THE BALANCE DUE THE ESTATE. PAYMENT WAS MADE BY THE DISBURSING OFFICER OF THE VETERANS' BUREAU, OCTOBER 21, 1927, PER CHECK NO. 115900.

THE MOTHER OF THE DECEDENT, MRS. OLLIE LANGE, ALSO HAD FILED CLAIM IN THIS CASE FOR $200 ON ACCOUNT OF SERVICES ALLEGED TO HAVE BEEN RENDERED BY HER IN ATTENDANCE ON HER SON, THE DECEASED BENEFICIARY, FROM AUGUST 24, 1926, TO DECEMBER 24, 1926. THIS CLAIM WAS NOT RECOGNIZED BY THIS OFFICE FOR THE REASON THAT THE EVIDENCE SUBMITTED WAS NOT DEEMED SUFFICIENT UNDER THE ABOVE-CITED DECISION TO ESTABLISH THE EXISTENCE OF A PREEXISTING CONTRACT BETWEEN THE MOTHER AND SON FOR FURNISHING ATTENDANCE OR NURSING. THE ONLY STATEMENT MADE BY THE MOTHER IS THAT "THE CONTRACT WAS ORAL BETWEEN MY SON AND MYSELF.' THE AFFIDAVIT OF THE OTHER TWO PERSONS WAS MERELY TO THE EFFECT THAT THE MOTHER ATTENDED HER SON DURING HIS LAST ILLNESS AND THAT HER STATEMENT WAS TRUE TO THE BEST OF THEIR KNOWLEDGE AND BELIEF. THIS EVIDENCE COULD NOT BE REGARDED AS SUFFICIENT TO ESTABLISH THE EXISTENCE OF A PRIOR CONTRACT BETWEEN THE MOTHER AND SON FOR FURNISHING NURSING OR ATTENDANCE. FOR ADDITIONAL REASONS SEE ANSWER TO QUESTION 1, SUPRA. ACCORDINGLY, THE SETTLEMENT IN THIS CASE MUST BE AND IS SUSTAINED.

4. CRISTOBAL OQUENDO, A BENEFICIARY OF THE VETERANS' BUREAU, DIED NOVEMBER 17, 1926. THERE WAS DUE HIS ESTATE UNPAID DISABILITY COMPENSATION IN THE AMOUNT OF $56.66 AND UNPAID CHECK FOR $149, A TOTAL OF $205.66. THE WIDOW OF THE VETERAN, MAXIMINA RODRIQUEZ VDA DE OQUENDO, FILED CLAIM FOR THE ENTIRE AMOUNT, AND IN HER AFFIDAVIT SHE ALLEGED THAT THE DECEDENT LEFT A MINOR CHILD DEPENDENT ON HER FOR SUPPORT, AND THAT THERE WERE DEBTS AGAINST THE ESTATE IN THE AMOUNT OF $454, CONSISTING OF FUNERAL EXPENSE AND GROCERY BILLS WHICH HAD BEEN PAID BY LUCAS LOPEZ, A COUSIN OF THE DECEDENT. THE VETERANS' BUREAU PAID LUCAS LOPEZ THE AMOUNT OF $100 AS FUNERAL EXPENSES, UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' ACT. THE UNPAID CHECK FOR $149 WAS AUTHORIZED BY THIS OFFICE TO BE PAID TO THE WIDOW OF THE VETERAN, AND SETTLEMENT NO. 0165176 ISSUED OCTOBER 18, 1927, IN FAVOR OF THE WIDOW, FOR $56.66, THE REMAINDER DUE THE ESTATE, AND PAYMENT THEREOF WAS MADE BY THE DISBURSING OFFICER OF THE VETERANS' BUREAU, OCTOBER 28, 1927, PER CHECK NO. 118650. THERE MAY BE A QUESTION WHETHER THE PAYMENT TO THE WIDOW FOR HERSELF AND THE MINOR CHILD OF THE FULL AMOUNT DUE THE ESTATE WAS STRICTLY IN ACCORDANCE WITH THE LAWS OF DISTRIBUTION IN PORTO RICO, WHERE THE VETERAN DIED, BUT IN THE ABSENCE OF ANY FORMAL PROTEST BY PARTIES CLAIMING ADVERSELY TO THE WIDOW, THE SETTLEMENT WILL NOT NOW BE DISTURBED.