A-25274, JANUARY 5, 1929, 8 COMP. GEN. 337

A-25274: Jan 5, 1929

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THERE WILL HEREAFTER BE ACCEPTED THE VIEW THAT WHERE THERE WERE MORE THAN ONE BENEFICIARY OR DISTRIBUTEE AS OF MARCH 4. THE STATUS OF THE AWARD TO EACH BENEFICIARY OR DISTRIBUTEE WILL BE CONSIDERED SEPARATE AND DISTINCT IN DETERMINING WHETHER THE SAME WAS IN COURSE OF PAYMENT ON THE DATE OF THE ACT. 5 COMP. AS FOLLOWS: I HAVE THE HONOR TO REQUEST YOUR DECISION IN THE CASE OF MAURICE E. WHICH IS PENDING BEFORE THE BUREAU. THE VETERAN APPLIED FOR AND WAS GRANTED $10. THE MONTHLY INSTALLMENTS ACCRUING THEREON WERE REGULARLY PAID TO HER TO THE DATE OF HER DEATH. AT THAT TIME THE EVIDENCE SHOWED THE VETERAN TO HAVE BEEN A RESIDENT OF MISSOURI AND THAT HE WAS SURVIVED BY HIS FATHER (ALTHOUGH IT WAS STATED THAT HE HAD NOT BEEN HEARD FROM FOR SIXTEEN YEARS).

A-25274, JANUARY 5, 1929, 8 COMP. GEN. 337

VETERANS' BUREAU - INSURANCE - AWARDS IN COURSE OF PAYMENT IN APPLYING THE PHRASE "AWARDS * * * IN COURSE OF PAYMENT" APPEARING IN SECTION 303 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1310, EXCEPTING AWARDS IN COURSE OF PAYMENT FROM THE REQUIREMENT THAT LUMP-SUM AWARDS OF THE REMAINING VALUE OF THE INSURANCE BE MADE TO THE ESTATE OF THE INSURED IN CERTAIN CLASSES OF CASES, THERE WILL HEREAFTER BE ACCEPTED THE VIEW THAT WHERE THERE WERE MORE THAN ONE BENEFICIARY OR DISTRIBUTEE AS OF MARCH 4, 1925, THE STATUS OF THE AWARD TO EACH BENEFICIARY OR DISTRIBUTEE WILL BE CONSIDERED SEPARATE AND DISTINCT IN DETERMINING WHETHER THE SAME WAS IN COURSE OF PAYMENT ON THE DATE OF THE ACT. 5 COMP. GEN. 924 AND 6 ID. 152 MODIFIED.

ACTING COMPTROLLER GENERAL GINN TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JANUARY 5, 929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 1, 1928, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST YOUR DECISION IN THE CASE OF MAURICE E. PETTY (XC-9,390), WHICH IS PENDING BEFORE THE BUREAU.

THE FACTS OF THE CASE MAY BE STATED AS FOLLOWS:

WHILE IN THE MILITARY SERVICE, THE VETERAN APPLIED FOR AND WAS GRANTED $10,000 WAR RISK TERM INSURANCE. HE NAMED HIS MOTHER, EMMA HORSTMAN, 1918, AND THEREAFTER THE BUREAU AWARDED THE INSURANCE TO THE MOTHER AS THE DESIGNATED BENEFICIARY, AND THE MONTHLY INSTALLMENTS ACCRUING THEREON WERE REGULARLY PAID TO HER TO THE DATE OF HER DEATH, WHICH OCCURRED AUGUST 30, 1921.

UPON THE DEATH OF THE MOTHER, THE REMAINDER OF THE TWO HUNDRED AND FORTY INSTALLMENTS ON SAID INSURANCE BECAME PAYABLE UNDER THE PROVISIONS OF THEN EXISTING LAW "TO SUCH PERSON OR PERSONS, WITHIN THE PERMITTED CLASS OF BENEFICIARIES, AS WOULD UNDER THE LAWS OF THE STATE OF THE RESIDENCE OF THE INSURED BE ENTITLED TO HIS PERSONAL PROPERTY IN CASE OF INTESTACY" (40 STAT. 410).

AT THAT TIME THE EVIDENCE SHOWED THE VETERAN TO HAVE BEEN A RESIDENT OF MISSOURI AND THAT HE WAS SURVIVED BY HIS FATHER (ALTHOUGH IT WAS STATED THAT HE HAD NOT BEEN HEARD FROM FOR SIXTEEN YEARS), TWO SISTERS, AND A HALF BROTHER. THEREFORE, THE REMAINING INSTALLMENTS OF SAID INSURANCE WERE AWARDED TWO-SEVENTHS TO THE FATHER, TWO-SEVENTHS TO EACH OF THE SISTERS, AND ONE-SEVENTH TO THE HALF BROTHER OF THE VETERAN, FROM SEPTEMBER 15, 1921, THE ANNIVERSARY DATE OF THE LAST INSTALLMENT DUE THE MOTHER. THAT PORTION OF THE INSURANCE DUE THE FATHER OF THE VETERAN HAS NOT BEEN PAID FOR THE REASON THAT HE COULD NOT BE LOCATED. THIS ACTION WAS IN ACCORD WITH THE BUREAU PRACTICE.

IT APPEARS THAT FRANCIS W. HORSTMAN, THE HALF BROTHER OF THE VETERAN, WAS KILLED IN AN ACCIDENT ON JULY 22, 1928.

HON. GEORGE R. FARNUM, ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES, HAS RECENTLY FORWARDED TO THE BUREAU A COPY OF A LETTER RECEIVED BY THE ATTORNEY GENERAL FROM THE UNITED STATES ATTORNEY AT ST. LOUIS, MO., RELATIVE TO THE TWO-SEVENTHS OF THE INSURANCE AWARDED THE FATHER OF THE VETERAN, PAYMENT OF WHICH HAS BEEN HELD IN ABEYANCE BY THE BUREAU FOR THE REASON BEFORE STATED. A COPY OF THE LETTER FROM THE UNITED STATES ATTORNEY TO THE ATTORNEY GENERAL IS INCLOSED.

THE EVIDENCE BEFORE THE BUREAU IN REFERENCE TO THE FATHER'S DISAPPEARANCE, TOGETHER WITH THE CORRESPONDENCE IN REFERENCE THERETO, IS THE FOLLOWING:

THE JOINT AFFIDAVIT, DATED SEPTEMBER 29, 1921, BY HORTENSE PETTY HORSTMAN AND GLADYS PETTY HORSTMAN, DAUGHTER OF JOHN PETTY, THE FATHER OF THE VETERAN (WHO UPON THE REMARRIAGE OF THEIR MOTHER TOOK THE SURNAME OF HORSTMAN), WHEREIN THEY AVER THAT THEY DO NOT KNOW WHETHER THEIR FATHER, JOHN PETTY, IS ALIVE OR DEAD; THAT THEY HAVE NOT SEEN OR HEARD FROM HIM FOR 16 YEARS; THAT AT THAT TIME HE DESERTED THEIR MOTHER, EMMA HORSTMAN, AND NONE OF THE FAMILY HAS EVER HEARD OF HIM SINCE; THAT LATER THEIR MOTHER OBTAINED A DIVORCE FROM THEIR FATHER, JOHN PETTY; THAT HE DID NOT APPEAR AT THE DIVORCE CASE OR PUT IN ANY DEFENSE; THAT THEY DO NOT KNOW OF ANY ONE WHO HAS SEEN OR HEARD OF JOHN PETTY, THEIR FATHER, FOR THE LAST 16 YEARS; THAT AT THE TIME HE DESERTED HIS FAMILY, THEY WERE LIVING AT IRONTON, MO.

THE LETTER OF DECEMBER 23, 1921, G FRANK J. HORSTMAN, WHO MARRIED THE VETERAN'S MOTHER AFTER HER DIVORCE FROM JOHN PETTY, ADVISED THE BUREAU THAT THE FAMILY WAS TAKING STEPS TO ESTABLISH THE LEGAL PRESUMPTION OF JOHN PETTY'S DEATH IN ORDER THAT THE TWO-SEVENTHS PART OF THE INSURANCE RESERVED FOR JOHN PETTY COULD BE PAID TO THE OTHER BENEFICIARIES.

ON NOVEMBER 13, 1924, THE BUREAU WROTE FRANK J. HORSTMAN, ADVISING HIM THAT BEFORE THE TWO-SEVENTHS OF THE INSURANCE RESERVED FOR THE FATHER COULD BE DISTRIBUTED TO THE REMAINING BENEFICIARIES PROOF OF DEATH OF JOHN PETTY WOULD HAVE TO BE FURNISHED OR HIS DEATH WOULD HAVE TO BE ESTABLISHED UNDER THE LEGAL PRESUMPTION OF ABSENCE.

THE LETTER OF AUGUST 27, 1928, FROM FRANK J. HORSTMAN, STATED THAT THE VETERAN'S FATHER, JOHN PETTY, DESERTED THE DECEASED VETERAN'S MOTHER ABOUT THE YEAR 1905 OR 1906; THAT HE HAS NEVER BEEN HEARD OF SINCE, AND IT IS NOT KNOWN WHETHER HE IS STILL LIVING OR NOT; THAT THE WRITER (FRANK J. HORSTMAN) MARRIED THE DECEASED VETERAN'S MOTHER AND RAISED HER THREE CHILDREN BY JOHN PETTY.

ON THE EVIDENCE PRESENTED, THE BUREAU DECLINED TO MAKE A FINDING OF THE DEATH OF THE FATHER OF THE VETERAN, AND ON OCTOBER 23, 1928, IN REPLY TO HIS INQUIRY, ADVISED THE ATTORNEY FOR THE CLAIMANTS AS FOLLOWS:

"YOU ARE INFORMED THAT IT WILL BE NECESSARY FOR A CERTIFIED COPY OF THE PUBLIC RECORD OF DEATH OF THE FATHER TO BE SUBMITTED IF THIS CERTIFICATE CAN BE OBTAINED. OTHERWISE, A DECREE OF THE COURT SHOULD BE FURNISHED SHOWING THAT HE HAS BEEN UNHEARD OF FOR SO MANY YEARS AND THAT HE IS PRESUMED TO BE DEAD.'

THIS CASE INVOLVES THE APPLICATION OF SECTION 303 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED MARCH 4, 1925, THE PERTINENT PART OF WHICH READS AS FOLLOWS:

"IF NO PERSON WITHIN THE PERMITTED CLASS BE DESIGNATED BENEFICIARY FOR YEARLY RENEWABLE TERM INSURANCE BY THE INSURED EITHER IN HIS LIFETIME OR BY HIS LAST WILL AND TESTAMENT OR IF THE DESIGNATED BENEFICIARY DOES NOT SURVIVE THE INSURED OR SURVIVES THE INSURED AND DIES PRIOR TO RECEIVING ALL OF THE TWO HUNDRED AND FORTY INSTALLMENTS OR ALL SUCH AS ARE PAYABLE AND APPLICABLE, THERE SHALL BE PAID TO THE ESTATE OF THE INSURED THE PRESENT VALUE OF THE MONTHLY INSTALLMENTS THEREAFTER PAYABLE, SAID VALUE TO BE COMPUTED AS OF DATE OF LAST PAYMENT MADE UNDER ANY EXISTING AWARD: PROVIDED, THAT ALL AWARDS OF YEARLY RENEWABLE TERM INSURANCE WHICH ARE IN COURSE OF PAYMENT ON THE DATE OF THE APPROVAL OF THIS ACT SHALL CONTINUE UNTIL THE DEATH OF THE PERSON RECEIVING SUCH PAYMENTS, OR UNTIL HE FORFEITS SAME UNDER THE PROVISIONS OF THIS ACT. * * * " (43 STAT. 1310).

IN VIEW OF THE SEVERAL DECISIONS WHICH YOU HAVE RENDERED CONSTRUING AND APPLYING SAID SECTION 303, AMONG WHICH ARE THE CASES OF WILLIAM R. MATCHETT (5 COMP. GEN. 924), DECISION OF AUGUST 23, 1926, ON CERTAIN QUESTIONS IN VIEW OF THE DECISION OF THE COMPTROLLER GENERAL IN THE MATCHETT CASE (6 COMP. GEN. 152-154), AND THE CASE OF IGNOS A. DUMBLAUSKAS (7 COMP. GEN. 57-59), BEFORE ADVISING THE ATTORNEY GENERAL IN REFERENCE TO THE PRESENT CASE, YOUR VIEWS ARE REQUESTED ON THE FOLLOWING QUESTIONS:

WHETHER, IF THE PROPER COURT SHOULD FIND AS A MATTER OF PRESUMPTION THAT THE FATHER OF THE VETERAN IS DEAD AND THAT HE PREDECEASED THE VETERAN, THE ENTIRE AWARD MAY BE CONSIDERED IN COURSE OF PAYMENT, AND THE TWO-SEVENTHS SHARE OF THE INSURANCE RESERVED AS THE FATHER'S PORTION CAN NOW BE PAID DIRECTLY TO THE VETERAN'S SISTER, AND TO THE ESTATE OF THE DECEASED HALF BROTHER UP TO THE DATE OF HIS DEATH, IN PROPER PROPORTIONS, AS AN INCREMENT TO THE MONTHLY INSTALLMENTS AS ORIGINALLY AWARDED; OR WHETHER THE PRESENT VALUE OF SUCH TWO-SEVENTHS, TOGETHER WITH THE PRESENT VALUE OF THE REMAINDER OF THE ONE-SEVENTH OF SAID INSURANCE AWARDED THE HALF BROTHER OF THE VETERAN WHO WAS ACCIDENTALLY KILLED ON JULY 22, 1928, SHOULD BE PAID IN A LUMP SUM TO THE ESTATE OF THE VETERAN UNDER SECTION 303 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED; OR WHETHER THE ENTIRE AWARD SHOULD NOW BE CONSIDERED AS ERRONEOUS AND THE INSURANCE BE PAID UNDER SECTION 303 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED, LESS PAYMENTS HERETOFORE MADE TO THE TWO SISTERS AND THE HALF BROTHER.

YOUR ATTENTION IS INVITED TO THE RECENT DECISION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK IN THE CASE OF EDWARD HATCH ET AL. V. UNITED STATES, A PHOTOSTAT OF WHICH IS FORWARDED FOR YOUR CONVENIENCE.

THE LIABILITY OF THE UNITED STATES, WHETHER OR NOT AWARDS WERE IN COURSE OF PAYMENT ON MARCH 4, 1925, DOES NOT EXCEED THE AMOUNT OF THE PARTICULAR POLICY OF INSURANCE, AND THE QUESTION WHETHER THE AWARDS WERE IN COURSE OF PAYMENT ON THAT DATE MUST BE DETERMINED ON THE FACTS OF EACH PARTICULAR CASE. THERE HAVE BEEN BEFORE THIS OFFICE IN 5 COMP. GEN. 924, 6 ID. 152, AND 7 ID. 57, QUESTIONS WHETHER THE PARTICULAR AWARDS WERE IN COURSE OF PAYMENT ON MARCH 4, 1925, SO AS TO REQUIRE PAYMENT OF THE REMAINING INSTALLMENTS IN A LUMP SUM TO THE ESTATE OF THE INSURED. THE DECISION IN 5 COMP. GEN. 924 HAD UNDER CONSIDERATION THE FACTS OF A CASE WHERE THE INSURED DESIGNATED AS HIS BENEFICIARIES HIS FATHER AND MOTHER. AWARDS HAD BEEN MADE TO BOTH OF THE BENEFICIARIES AND THE MOTHER HAD DIED IN 1920 BEFORE RECEIVING ALL OF THE INSTALLMENTS OF HER SHARE OF THE AWARD. THE REMAINING INSTALLMENTS OF THE MOTHER WERE REAWARDED AND DISTRIBUTION MADE TO THE HEIRS OF THE INSURED IN ACCORDANCE WITH THE LAWS OF DISTRIBUTION IN EFFECT AT THE DOMICILE OF THE INSURED. HOWEVER, PAYMENT TO ONE OF THE DISTRIBUTEES WAS WITHHELD BECAUSE OF MINORITY AND THERE BEING NO GUARDIAN AND THE QUESTION WAS WHETHER THE AWARD WAS IN COURSE OF PAYMENT WHEN PAYMENT TO ONE OF THE DISTRIBUTEES WAS NOT BEING MADE ON MARCH 4, 1925. IT WAS HELD THAT THE AWARDS WERE IN COURSE OF PAYMENT FOR THE REASON THAT THE AWARD TO ALL OF THE DISTRIBUTEES WAS ,CONSIDERED AS AN ENTIRETY.' THE CASE OF OGDEN STEVENS, ADMINISTRATOR V. UNITED STATES ET AL. IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, THE COURT HAD UNDER CONSIDERATION A CASE WHERE THE DESIGNATED BENEFICIARY PREDECEASED THE INSURED, BUT APPARENTLY NO FURTHER BENEFICIARIES WERE DESIGNATED BY THE INSURED PRIOR TO HIS DEATH. IN ACCORDANCE WITH THE LAWS THEN IN FORCE, THE PERSONS COMPETENT TO RECEIVE THE INSURANCE WERE DETERMINED TO BE SIX IN NUMBER, BUT THREE OF THESE PERSONS COULD NOT BE LOCATED AND THEIR SHARE OF THE INSURANCE INSTALLMENTS WAS NOT PAID TO ANYONE PENDING THEIR APPLICATION THEREFOR. IN A SUIT BY THE ADMINISTRATOR OF THE ESTATE OF THE INSURED FOR THE INSTALLMENTS THAT MIGHT HAVE BEEN PAID TO THESE THREE PERSONS HAD THEY BEEN LOCATED,THE DEFENSE WAS INTERPOSED THAT THE AWARDS WERE AN ENTIRETY, THAT THE INSURANCE WAS IN COURSE OF PAYMENT ON MARCH 4, 1925, AND THAT CONSEQUENTLY THE ADMINISTRATOR OF THE ESTATE OF THE INSURED WAS NOT ENTITLED THERETO. THE COURT REJECTED THIS DEFENSE, SAYING:

IT IS OBVIOUS THAT IN THIS CASE THERE HAS BEEN NO SUCH COURSE OF PAYMENT TO SAID THREE CODEFENDANTS AS CONTEMPLATED BY SAID ACT. MERE RESERVATION IN THE TREASURY OF THE UNITED STATES OF THE $5,000 FOR THE CODEFENDANTS, IF AND WHEN THEY SHOULD BE FOUND, IS NOT PLACING MONEY IN THE COURSE OF PAYMENT. NO GOVERNMENT WARRANTS OR CHECKS HAD BEEN ISSUED OR EXECUTED OR PLACED IN THE HANDS OF SAID CODEFENDANTS OR CASHED BY THEM. IT IS SIGNIFICANT TO NOTE THAT SAID ACT OF MARCH 4, 1925, PROVIDES THAT ALL AWARDS WHICH ARE IN THE COURSE OF PAYMENT ON THE DATE OF THE APPROVAL OF THIS ACT SHALL CONTINUE UNTIL THE DEATH OF THE PERSON RECEIVING THE SAME, THEREBY CLEARLY INDICATING THAT BY THE COURSE OF PAYMENT CONGRESS MEANT ACTUAL AND PHYSICAL RECEIPT OF THE MONEY BY THE HEIR IN QUESTION. THERE CERTAINLY HAS BEEN NONE SUCH HEREIN. THE SIX AWARDS WERE SEPARATE AND DISTINCT, AND THE FACT THAT THREE OF THE AWARDS IN QUESTION MAY HAVE BEEN IN THE COURSE OF PAYMENT ON THE DATE IN QUESTION CAN NOT SERVE TO IMPART THAT QUALITY TO THE REMAINING THREE AWARDS. * * *

THE FACTS IN 6 COMP. GEN. 152 CONCERNED TWO TYPES OF CASES--- ONE WHERE AWARDS HAD BEEN MADE BUT PAYMENT TO ONE OF THE DISTRIBUTEES WAS NOT BEING EFFECTED ON MARCH 4, 1925, PENDING COMPLIANCE WITH CERTAIN PROCEDURE OF THE VETERANS' BUREAU, AND THE OTHER WHERE, IN MAKING AWARDS OF INSURANCE, A RIGHTFUL DISTRIBUTEE HAD BEEN OVERLOOKED AND INSTALLMENT PAYMENTS OF ALL OF THE INSURANCE WERE BEING MADE TO THE OTHER DISTRIBUTEES. THE FIRST TYPE OF CASE WAS SIMILAR TO 5 COMP. GEN. 924, AND THAT DECISION WAS APPLIED TO HOLD THE AWARD IN COURSE OF PAYMENT SO AS NOT TO REQUIRE PAYMENT TO THE ESTATE OF THE INSURED, WHILE IN THE SECOND TYPE OF CASE IT WAS HELD THAT THE AWARD WAS NOT IN COURSE OF PAYMENT BECAUSE OF THE ERROR AND THAT THE REMAINING INSTALLMENTS OF INSURANCE SHOULD BE PAID TO THE ESTATE OF THE INSURED. IN 7 COMP. GEN. 57 THE FACTS WERE THAT AWARDS HAD BEEN MADE TO BENEFICIARIES AND INSTALLMENTS PAID, BUT THEY HAD DIED BEFORE MARCH 4, 1925, AND NO FURTHER AWARDS HAD BEEN MADE. IT WAS HELD IN SAID CASE THAT THE AWARDS WERE NOT IN COURSE OF PAYMENT AND THAT THE INSURANCE SHOULD BE PAID TO THE ESTATE OF THE INSURED.

ASIDE FROM CERTAIN PRELIMINARY QUESTIONS NOT HERE MATERIAL, THE HATCH CASE, TO WHICH YOU REFER, CONSIDERED BY THE COURT, WAS OF THE SECOND TYPE IN 6 COMP. GEN. 152, WITH THE EXCEPTION THAT THE DISTRIBUTEE WHO HAD BEEN OVERLOOKED HAD FILED WITH THE VETERANS' BUREAU A RELEASE OF THE UNITED STATES FROM ALL LIABILITY BECAUSE OF HER SHARE OF THE INSURANCE WHICH HAD BEEN ERRONEOUSLY PAID TO THE OTHER DISTRIBUTEES. IN A SUIT BY ALL OF THE DISTRIBUTEES FOR PAYMENT OF THEIR RIGHTFUL SHARES OF THE UNPAID INSTALLMENTS OF THE INSURANCE READJUSTED TO INCLUDE THE OVERLOOKED DISTRIBUTEE AS OF THE DATE OF THE LAST PAYMENT IT WAS HELD THAT THEY, RATHER THAN THE ESTATE OF THE INSURED, WERE ENTITLED TO THE UNPAID INSTALLMENTS AS AND WHEN THEY ACCRUE. THE COURT SAID:

THERE IS, OF COURSE, NO CONTENTION THAT THE AWARDS WERE NOT ACTUALLY IN COURSE OF PAYMENT OF MARCH 4, 1925. BUT THE ESSENCE OF THE ARGUMENT OF GOVERNMENT'S COUNSEL IS THAT WHEN CONGRESS IN CHANGING THE LAW BY THE AMENDMENT OF SAID SECTION 303 IN 1925 PROVIDED THAT THE SECTION SHOULD NOT APPLY TO AWARDS IN COURSE OF PAYMENT, IT MEANT IN COURSE OF LEGAL PAYMENT, AND THAT THEREFORE AWARDS NOT IN COURSE OF WHAT THE DEFENDANT CALLS LEGAL PAYMENTS WERE NOT WITHIN THE TERMS OF THE PROVISO. THIS SEEMS WITHOUT SUPPORT IN REASON OR JUDICIAL AUTHORITY. PUBLIC OFFICERS ARE PRESUMED TO KNOW THEIR DUTY. CONGRESS CAN NOT BE SAID TO HAVE CONTEMPLATED THAT THERE WOULD BE SUCH A THING AS FAILURE OF PUBLIC OFFICERS TO DO THEIR DUTY RESULTING IN ILLEGAL PAYMENTS, UNLESS SUCH CONTEMPLATION IS CLEARLY SHOWN IN THE STATUTE. IT DOES NOT APPEAR ANYWHERE THAT PRIOR TO MARCH 4, 1925, THERE WERE ANY ILLEGAL AWARDS OTHER THAN THIS SINGLE ONE IN THE CASE AT BAR, AND THE ILLEGALITY OF THIS AWARD WAS NOT KNOWN TO THE DEPARTMENT, MUCH LESS TO CONGRESS, UNTIL EIGHT MONTHS AFTER THE PASSAGE OF THE AMENDATORY ACT OF MARCH 4, 1925.

THE LANGUAGE CHOSEN BY CONGRESS WAS TERSE AND CLEAR. CONGRESS COULD HAVE SAID, BUT DID NOT ,"IN COURSE OF DUE PAYMENT" OR "IN DUE COURSE OF PAYMENT," AND DID NOT USE ANY OTHER WORDS OF LIMITATION OR QUALIFICATION. IT MERELY USED THE WORDS "IN COURSE OF PAYMENT," AND THESE WORDS MUST BE TAKEN AT THEIR NATURAL AND NORMAL MEANING, VIZ, CASES IN WHICH AWARDS WERE ACTUALLY BEING PAID, WITHOUT REFERENCE TO ANY POTENTIAL OR POSSIBLE DISCOVERY AT A LATER DATE, BUT THE GOVERNMENT HAD MADE SOME KIND OF ERROR IN ITS AWARD OF YEARS BEFORE.

THE CONCLUSION REACHED BY THE TWO COURTS APPEARS TO BE BASED ON VIEWING THE AWARDS OF INSURANCE WHERE THERE ARE MORE THAN ONE BENEFICIARY OR DISTRIBUTEE AS BEING SEPARABLE AND NOT AS AN ENTIRETY, AND THAT WHERE SOME OF THE AWARDS WERE BEING PAID ON MARCH 4, 1925, TO SOME OF THE BENEFICIARIES OR DISTRIBUTEES, THE AWARDS WERE IN COURSE OF PAYMENT AS TO THESE DISTRIBUTEES, BUT NOT IN COURSE OF PAYMENT AS TO THE DISTRIBUTEES TO WHOM PAYMENTS WERE NOT BEING MADE OF THEIR SHARE OF THE INSURANCE. VIEW OF THE FACT THAT THE LIABILITY OF THE UNITED STATES IS NOT INCREASED BY THIS VIEW OF THE MATTER, SAME MAY BE ACCEPTED, BUT THE PRINCIPLE OF THE HATCH CASE IS NOT TO BE EXTENDED BEYOND THE FACTS OF THAT CASE. WHERE A BENEFICIARY OR DISTRIBUTEE OF INSURANCE HAD BEEN OVERLOOKED AND PAYMENTS ON MARCH 4, 1925, WERE NOT BEING MADE TO SUCH DISTRIBUTEE AND THE DISTRIBUTEE HAS NOT FILED WITH THE UNITED STATES A RELEASE FROM LIABILITY FOR THE SHARE ERRONEOUSLY INCLUDED IN THE AWARDS TO THE OTHER DISTRIBUTEES, THERE SHOULD BE COLLECTED FROM THE OTHER DISTRIBUTEES THE ERRONEOUS AMOUNT RECEIVED BY THEM UNLESS WAIVED FOR GOOD CAUSE AS PROVIDED FOR UNDER SECTION 28 OF THE WORLD WAR VETERANS' ACT.

IN THE INSTANT CASE, THEREFORE, THE AWARDS OF TWO-SEVENTHS TO THE FATHER, TWO-SEVENTHS TO EACH OF THE SISTERS, AND ONE-SEVENTH TO THE HALF-BROTHER OF THE VETERAN AS OF SEPTEMBER 15, 1921, SHOULD BE CONSIDERED AS SEPARATE AND DISTINCT AND THE APPLICATION OF SECTION 303 OF THE STATUTE MADE AS TO EACH INDEPENDENTLY OF THE OTHER. THE AWARD OF TWO-SEVENTHS TO THE FATHER WAS NOT IN COURSE OF PAYMENT ON MARCH 4, 1925, UNDER THE PRINCIPLES ANNOUNCED BY THE COURTS AND ADOPTED BY THIS OFFICE, AND SHOULD BE PAID, IN THE EVENT HIS DEATH IS ESTABLISHED BY COURT PROCEEDINGS OR OTHERWISE, IN A LUMP SUM TO THE ESTATE OF THE VETERAN. EVEN IF A COURT SHOULD NOW DETERMINE THAT THE FATHER PREDECEASED THE VETERAN, THAT DECREE SHOULD NOT BE CONSIDERED AS AFFECTING THE LEGALITY OF THE SEVERAL AWARDS PREVIOUSLY MADE DISTRIBUTING THE INSURANCE ON THE BASIS THAT THE FATHER WAS LIVING.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT, ASSUMING THAT THE DEATH OF THE FATHER WILL BE ESTABLISHED, THE PRESENT VALUE OF THE TWO- SEVENTHS AWARD TO THE FATHER OF THE VETERAN, TOGETHER WITH THE PRESENT VALUE OF THE REMAINDER OF THE ONE-SEVENTH OF SAID INSURANCE AWARDED TO THE HALF BROTHER OF THE VETERAN WHO WAS ACCIDENTALLY KILLED ON JULY 22, 1928, SHOULD BE PAID IN A LUMP SUM TO THE ESTATE OF THE VETERAN UNDER SECTION 303 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED.