A-25518, JANUARY 7, 1929, 8 COMP. GEN. 342

A-25518: Jan 7, 1929

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THE UNITED STATES VETERANS' BUREAU IS HEREBY AUTHORIZED AND DIRECTED TO PAY TO HIS BENEFICIARIES UNDER SAID POLICY THE AMOUNT OF SAID INSURANCE LESS THE PREMIUMS AND INTEREST THEREON AT 5 PERCENTUM PER ANNUM. THE FACTS IN THE CASE ARE STATED AS FOLLOWS: IT IS STATED THAT JOHN BERNSTEIN ENTERED SERVICE JUNE 12. WAS DISCHARGED DECEMBER 30. FOR WHICH HIS WIFE WAS DESIGNATED BENEFICIARY. THIS INSURANCE IS REPORTED TO HAVE LAPSED ON JANUARY 31. THE PREMIUM ON THE INSURANCE WAS $7.10 MONTHLY. THE CONTENTIONS AND ARGUMENTS GIVEN IN SUPPORT OF THE OPINION APPROVED BY YOU HAVE BEEN GIVEN CONSIDERATION IN ARRIVING AT THE CONCLUSIONS OF THIS DECISION. (1) THERE CAN BE NO DOUBT AS TO THE USUAL AND ORDINARY MEANING OF THE PHRASE "DIED AFTER FEBRUARY 24.

A-25518, JANUARY 7, 1929, 8 COMP. GEN. 342

VETERANS' BUREAU - INSURANCE - REVIVAL BY APPLICATION OF $60 BONUS A PERSON WHO DIED ON FEBRUARY 24, 1919, DOES NOT COME WITHIN THE TERMS OF SECTION 309 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 800, AUTHORIZING APPLICATION OF THE $60 BONUS TO REVIVE LAPSED WAR RISK INSURANCE OF ANY PERSON WHO "DIED AFTER FEBRUARY 24, 1919.' THE FACT THAT THE INSURANCE LAPSED PRIOR TO FEBRUARY 24, 1919, DOES NOT PRECLUDE APPLICATION OF THE STATUTE IF THE INSURED DIED AFTER THAT DATE WITHOUT HAVING COLLECTED THE $60 BONUS.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JANUARY 7, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 17, 1928, AND SUPPLEMENTAL LETTER OF JANUARY 3, 1929, SUBMITTING THE WAR RISK INSURANCE CASE OF JOHN BERNSTEIN, C-148845, INVOLVING THE QUESTION WHETHER TERM INSURANCE ISSUED TO HIM DURING HIS MILITARY SERVICE MAY BE CONSIDERED AS REVIVED UNDER THE PROVISIONS OF SECTION 309 OF THE WORLD WAR VETERANS' ACT, ADDED BY THE ACT OF JULY 2, 1926, 44 STAT. 800, PROVIDING AS FOLLOWS:

WHERE ANY PERSON ALLOWED HIS INSURANCE TO LAPSE AND DIED AFTER FEBRUARY 24, 1919, AND PRIOR TO COLLECTING THE $60 BONUS PROVIDED BY THE ACT OF FEBRUARY 24, 1919 (FORTIETH STATUTES AT LARGE, P. 1151), THEN IN THAT EVENT HIS INSURANCE SHALL NOT BE CONSIDERED AS LAPSED DURING SUCH PERIOD AS SAID UNCOLLECTED BONUS WOULD, IF APPLIED TO THE PAYMENT OF PREMIUMS WHEN DUE, EQUAL OR EXCEED THE SAME, AND THE UNITED STATES VETERANS' BUREAU IS HEREBY AUTHORIZED AND DIRECTED TO PAY TO HIS BENEFICIARIES UNDER SAID POLICY THE AMOUNT OF SAID INSURANCE LESS THE PREMIUMS AND INTEREST THEREON AT 5 PERCENTUM PER ANNUM, COMPOUNDED ANNUALLY, IN INSTALLMENTS, AS PROVIDED BY LAW.

THE FACTS IN THE CASE ARE STATED AS FOLLOWS:

IT IS STATED THAT JOHN BERNSTEIN ENTERED SERVICE JUNE 12, 1917, AND WAS DISCHARGED DECEMBER 30, 1918. HE DIED ON FEBRUARY 24, 1919, ABOUT 4 P.M. WHILE IN SERVICE HE HAD APPLIED FOR $10,000 TERM INSURANCE, FOR WHICH HIS WIFE WAS DESIGNATED BENEFICIARY. THIS INSURANCE IS REPORTED TO HAVE LAPSED ON JANUARY 31, 1919. THE PREMIUM ON THE INSURANCE WAS $7.10 MONTHLY.

THE CASE PRESENTS TWO LEGAL QUESTIONS UNDER THE STATUTE, (1) WHETHER THE FACT THAT DEATH OCCURRED ON FEBRUARY 24, 1919, PRECLUDES APPLICATION OF THE AMOUNT OF THE $60 BONUS FOR INSURANCE PREMIUMS, IN ACCORDANCE WITH THE PROVISIONS OF THE SECTION; AND (2) WHETHER THE FACT THAT THE INSURANCE LAPSED PRIOR TO FEBRUARY 24, 1919, PRECLUDES SUCH APPLICATION.

YOU QUOTE IN FULL AN OPINION OF THE GENERAL COUNSEL OF THE VETERANS' BUREAU WHICH, YOU STATE, HAS HAD YOUR APPROVAL, EXPRESSING A NEGATIVE VIEW AS TO EACH OF THE TWO QUESTIONS AS ABOVE STATED. THE CONTENTIONS AND ARGUMENTS GIVEN IN SUPPORT OF THE OPINION APPROVED BY YOU HAVE BEEN GIVEN CONSIDERATION IN ARRIVING AT THE CONCLUSIONS OF THIS DECISION.

(1) THERE CAN BE NO DOUBT AS TO THE USUAL AND ORDINARY MEANING OF THE PHRASE "DIED AFTER FEBRUARY 24, 1919," WHICH WOULD INCLUDE PERSONS WHO DIED ON FEBRUARY 25, 1919, OR THEREAFTER, BUT WOULD NOT INCLUDE PERSONS WHO DIED ON FEBRUARY 24, 1919. THERE HAS BEEN QUOTED IN YOUR SUBMISSION THE FOLLOWING FROM 2 CORPUS JURIS, 395:

IN COMPUTATION OF TIME THE WORD "AFTER" IS GENERALLY UNDERSTOOD IN THE SENSE OF EXCLUDING THE DAY OF THE DATE MENTIONED. BUT THIS IS NOT NECESSARILY THE CONSTRUCTION OF THE WORD UNDER ALL CIRCUMSTANCES; IT HAS NO ABSOLUTE AND INVARIABLE SENSE, BUT IS TO BE TAKEN TO BE EXCLUSIVE OR INCLUSIVE ACCORDING AS IT WILL, IN THE PARTICULAR CASE, EFFECTUATE THE INTENTION OF THE PARTIES, * * *.

THERE WOULD APPEAR TO BE NO DOUBT AS TO THE CORRECTNESS OF THIS STATEMENT OF THE RULE.

FEBRUARY 24, 1919, WAS USED IN THE STATUTE, OF COURSE, BECAUSE IT WAS THE DATE OF PASSAGE OF THE ACT GRANTING THE $60 BONUS. THE INTENT OF SECTION 309 OF THE WORLD WAR VETERANS' ACT REASONABLY MAY BE TAKEN TO HAVE BEEN TO APPLY THE AMOUNT OF THE BONUS AS PREMIUMS ON LAPSED INSURANCE IN ALL CASES WHERE THE VETERAN COULD HAVE HIMSELF COLLECTED THE BONUS UNDER THE PROCEDURE PROVIDED IN THE STATUTE. THERE WERE EXPRESSLY EXCEPTED FROM THE BENEFITS OF THE BONUS ACT FOUR CLASSES OF PERSONS, THE FOURTH OF WHICH WAS DESCRIBED AS FOLLOWS:

* * * (4) TO THE HEIRS OR LEGAL REPRESENTATIVES OF ANY PERSON ENTITLED TO ANY PAYMENT UNDER THIS SECTION WHO HAS DIED OR MAY DIE BEFORE RECEIVING SUCH PAYMENT. * * *

IN VIEW OF THIS PROVISION, IT IS NECESSARY TO CONCLUDE THAT THE VETERAN MUST HAVE BEEN ALIVE AT A TIME WHEN HE COULD HAVE COLLECTED THE BONUS UNDER THE PROCEDURE PROVIDED IN THE STATUTE, WHICH APPEARS IN THE FOLLOWING PARAGRAPH THEREOF:

THE ABOVE AMOUNT, IN THE CASE OF SEPARATION FROM THE SERVICE ON OR PRIOR TO THE PASSAGE OF THIS ACT, SHALL BE PAID AS SOON AS PRACTICABLE AFTER THE PASSAGE OF THIS ACT, AND IN THE CASE OF SEPARATION FROM THE SERVICE AFTER THE PASSAGE OF THIS ACT SHALL BE PAID AT THE TIME OF SUCH SEPARATION.

THIS PARAGRAPH PROVIDES A PROCEDURE IN TWO CLASSES OF CASES--- (1) VETERANS SEPARATED FROM THE SERVICE ON OR PRIOR TO THE PASSAGE OF THE ACT, FEBRUARY 24, 1919, AND (2) VETERANS SEPARATED FROM THE SERVICE AFTER THE PASSAGE OF THE ACT FEBRUARY 24, 1919. THE FIRST CLASS OF CASES REQUIRED AN APPLICATION, AND PAYMENT WAS NOT TO BE MADE UNTIL AFTER THE PASSAGE OF THE ACT. IN THIS CLASS FALLS THE INSTANT CASE. THEREFORE, IF THE INSURED DIED ON FEBRUARY 24, 1919, HE COULD NOT POSSIBLY, UNDER ANY CIRCUMSTANCES, HAVE COLLECTED THE BONUS.

FURTHERMORE, SECTION 1409 OF THE BONUS ACT, 40 STAT. 1152, PROVIDES AS FOLLOWS:

THAT UNLESS OTHERWISE HEREIN SPECIFICALLY PROVIDED, THIS ACT SHALL TAKE EFFECT ON THE DATE FOLLOWING ITS PASSAGE.

IT IS CONTENDED THAT THIS WAS INTENDED TO APPLY ONLY TO THE INTERNAL REVENUE PROVISIONS OF THE STATUTE AND NOT TO THE PROVISIONS AUTHORIZING THE PAYMENT OF THE $60 BONUS, WHICH WERE INCLUDED IN THE ACT IN THE NATURE OF A RIDER. SUCH A VIEW MAY NOT BE ACCEPTED. THERE IS NO RULE OF STATUTORY CONSTRUCTION THAT EXCEPTS PROVISIONS PLACED IN A STATUTE IN THE NATURE OF A RIDER FROM OTHER GENERAL PROVISIONS OF THE STATUTE NOT INCONSISTENT WITH THE PROVISIONS IN THE RIDER. NO CLEAR INCONSISTENCY APPEARS BETWEEN THE ABOVE-QUOTED SECTION 1409 AND THE PROVISIONS OF SECTION 1406, AUTHORIZING THE BONUS. IT WOULD APPEAR, THEREFORE, THAT THAT PORTION OF THE STATUTE AUTHORIZING THE BONUS WAS NOT ACTUALLY OPERATIVE UNTIL FEBRUARY 25, 1924, SUBSEQUENT TO THE DEATH OF THE INSURED IN THIS CASE.

ACCORDINGLY, IT IS ONLY REASONABLE TO CONCLUDE THAT THE PHRASE "AFTER FEBRUARY 24, 1919," WAS USED IN THE STATUTE ADVISEDLY, WITH THE INTENT OF EXCLUDING THAT DAY, WHICH COULD EASILY HAVE BEEN INCLUDED, IF SO INTENDED, BY THE USE OF THE WORD "ON.'

QUESTION (1), AS ABOVE STATED, MUST BE AND IS ANSWERED IN THE AFFIRMATIVE. 8 COMP. GEN. 104. SEE, ALSO, THE CONGRESSIONAL RECORD, VOL. 67, PAGES 12090-12091, QUOTED IN YOUR LETTER OF JANUARY 3, 1929. ACCORDINGLY, INSURANCE PAYMENTS SHOULD NOT BE MADE IN THE CASE OF JOHN BERNSTEIN, C-148845.

(2) THE ANSWER TO QUESTION (1) PRACTICALLY MAKES IT UNNECESSARY TO ANSWER QUESTION (2) IN SO FAR AS THE PARTICULAR CASE OF JOHN BERNSTEIN IS CONCERNED, BUT THERE HAS BEEN BEFORE THIS OFFICE IN THE PREAUDIT OF ACCOUNTS CASES INVOLVING QUESTION (2), FOR INSTANCE, THE CASE OF JOSEPH G. ADAMS, C-724909, IN WHICH THE FACTS SHOW THAT THE INSURANCE LAPSED PRIOR TO FEBRUARY 24, 1919, AND THE INSURED DIED AFTER THAT DATE, AND IT IS UNDERSTOOD THAT SEVERAL CASES HAVE BEEN SUSPENDED AWAITING A DECISION OF THE QUESTION WHETHER THE LAPSE OF THE INSURANCE, AS WELL AS THE DEATH OF THE INSURED, MUST BE SHOWN TO HAVE BEEN SUBSEQUENT TO FEBRUARY 24, 1919.

THE PORTION OF SECTION 309 OF THE WORLD WAR VETERANS' ACT FOR CONSIDERATION PROVIDES "WHERE ANY PERSON ALLOWED HIS INSURANCE TO LAPSE AND DIED AFTER FEBRUARY 24, 1919.' I AM IMPRESSED WITH THE VIEW THAT THE PHRASE "AFTER FEBRUARY 24, 1919," WAS INTENDED TO MODIFY ONLY THE VERB "DIED" AND NOT THE PRECEDING VERB "ALLOWED.' THERE WOULD APPEAR TO BE NO SOUND REASON FOR REQUIRING THAT THE LAPSE MUST HAVE OCCURRED AFTER FEBRUARY 24, 1919. IF THE LAPSE WAS PRIOR THERETO, AND THE INSURANCE REMAINED IN A STATE OF LAPSE SUBSEQUENT TO THE STATUTE, THE MONEY REPRESENTED BY THE $60 BONUS WOULD THEN HAVE BEEN AVAILABLE TO THE INSURED TO REINSTATE HIS INSURANCE. WITH RESPECT TO REVIVAL OF INSURANCE UNDER SECTION 305 OF THE STATUTE BY THE APPLICATION OF UNCOLLECTED DISABILITY COMPENSATION, IT HAS BEEN HELD AS UNNECESSARY THAT THE PARTICULAR COMPENSATION DUE AT DATE OF LAPSE BE APPLIED AS INSURANCE PREMIUMS, BUT THAT ANY COMPENSATION UNCOLLECTED AT DATE OF MATURITY OF THE INSURANCE BY DEATH OR HAPPENING OF PERMANENT TOTAL DISABILITY WAS AVAILABLE. 6 COMP. GEN. 800. THE EVIDENT PURPOSE OF SECTION 309 WAS TO MAKE THE AMOUNT OF THE $60 BONUS THAT THE INSURED COULD HAVE COLLECTED AFTER FEBRUARY 24, 1919, AVAILABLE AS INSURANCE PREMIUMS ON ANY INSURANCE IN A STATE OF LAPSE IRRESPECTIVE OF THE DATE OF LAPSE. QUESTION (2), AS ABOVE STATED, IS ANSWERED IN THE NEGATIVE.

THUS, IN THE CASE OF JOSEPH G. ADAMS AND ANY OTHER SIMILAR CASE IN WHICH THE ONLY QUESTION IS THE DATE OF LAPSE, INSURANCE MAY BE CONSIDERED AS REVIVED UNDER SECTION 309 AND LAWFUL PAYMENTS MADE THEREUNDER.