A-30124, FEBRUARY 6, 1930, 9 COMP. GEN. 344

A-30124: Feb 6, 1930

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OR A MISDESCRIPTION IN THE APPLICATION AS "WIFE" WHEN THE VETERAN WAS ONLY ENGAGED TO MARRY SUCH PERSON. THERE IS NO LEGAL PRINCIPLE OR SOUND BASIS UNDER WHICH THE RIGHT OF THE ORIGINALLY DESIGNATED BENEFICIARY OF AN ADJUSTED SERVICE CERTIFICATE CAN BE DEFEATED SOLELY ON THE BASIS OF PAROL EVIDENCE. I HAVE THE HONOR TO SOLICIT YOUR DECISION UPON THE FACT IN THE CASE OF HENRY J. WHICH IS NOW PENDING BEFORE THIS BUREAU FOR ADJUDICATION. PARTRIDGE BUT THAT HIS WIFE'S NAME WAS ANNE BRADY PARTRIDGE. TO WHOM HE WAS MARRIED ON MAY 3. PARTRIDGE AS BENEFICIARY THE VETERAN WAS ENGAGED TO MISS ELLA M. POWER AND THAT SUBSEQUENTLY THE ENGAGEMENT WAS BROKEN AND HE WAS MARRIED TO ANNE SARAH BRADY. SUBSEQUENT TO THE ISSUANCE OF THE ADJUSTED COMPENSATION CERTIFICATE AND THE CONVERTED POLICY THE VETERAN GAVE BOTH THE CERTIFICATE AND THE POLICY TO MISS POWER AND SHORTLY AFTER THEIR ENGAGEMENT WAS BROKEN BOTH THE CERTIFICATE AND THE POLICY WERE RETURNED TO THE VETERAN.

A-30124, FEBRUARY 6, 1930, 9 COMP. GEN. 344

VETERANS' BUREAU - ADJUSTED COMPENSATION - CHANGE OF BENEFICIARY IF THE WOMAN DESIGNATED AS BENEFICIARY IN THE APPLICATION FOR AN ADJUSTED SERVICE CERTIFICATE CAN BE EASILY IDENTIFIED AS THE PERSON INTENDED BY THE VETERAN, A MISSTATEMENT IN THE APPLICATION AS TO THE CORRECT NAME OF THE BENEFICIARY, OR A MISDESCRIPTION IN THE APPLICATION AS "WIFE" WHEN THE VETERAN WAS ONLY ENGAGED TO MARRY SUCH PERSON, DOES NOT DEFEAT SUCH INTENTION, AND THE SUBSEQUENT MARRIAGE OF THE VETERAN TO ANOTHER WOMAN WOULD NOT IPSO FACTO DIVEST THE DESIGNATED BENEFICIARY OF HER RIGHTS. THERE IS NO LEGAL PRINCIPLE OR SOUND BASIS UNDER WHICH THE RIGHT OF THE ORIGINALLY DESIGNATED BENEFICIARY OF AN ADJUSTED SERVICE CERTIFICATE CAN BE DEFEATED SOLELY ON THE BASIS OF PAROL EVIDENCE, ADDUCED AFTER THE DEATH OF THE VETERAN, TENDING TO SHOW HIS INTENT OR UNDERSTANDING THAT SOME ONE OTHER THAN SUCH DESIGNATED BENEFICIARY SHOULD RECEIVE THE AMOUNT. 6 COMP. GEN. 599; 9 ID. 195; ID. 285, DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, FEBRUARY 6, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JANUARY 6, 1930, SUBMITTING FOR DECISION A QUESTION PRESENTED AS FOLLOWS:

AT THE REQUEST OF HONORABLE HUBERT F. FISHER, HOUSE OF REPRESENTATIVES, I HAVE THE HONOR TO SOLICIT YOUR DECISION UPON THE FACT IN THE CASE OF HENRY J. PARTRIDGE, XC-1,341,051, WHICH IS NOW PENDING BEFORE THIS BUREAU FOR ADJUDICATION.

THE FACTS IN THE CASE MAY BE STATED AS FOLLOWS:

IN OCTOBER, 1924, HENRY J. PARTRIDGE EXECUTED AN APPLICATION FOR ADJUSTED COMPENSATION BENEFITS, DESIGNATING AS BENEFICIARY THEREOF MRS. ELLA M. PARTRIDGE, WIFE, 261 SIMPSON STREET, MEMPHIS, SHELBY COUNTY, TENNESSEE. THE EVIDENCE IN THE FILE SHOWS THAT THE VETERAN HAD NO WIFE NAMED ELLA M. PARTRIDGE BUT THAT HIS WIFE'S NAME WAS ANNE BRADY PARTRIDGE,TO WHOM HE WAS MARRIED ON MAY 3, 1926. IT APPEARS, HOWEVER, THAT AT THE TIME OF THE DESIGNATION OF MRS. ELLA M. PARTRIDGE AS BENEFICIARY THE VETERAN WAS ENGAGED TO MISS ELLA M. POWER AND THAT SUBSEQUENTLY THE ENGAGEMENT WAS BROKEN AND HE WAS MARRIED TO ANNE SARAH BRADY. THE EVIDENCE SHOWS FURTHER THAT ON JANUARY 13, 1923, THE VETERAN MADE APPLICATION FOR CONVERSION OF $2,000 TERM INSURANCE TO A TWENTY-PAYMENT LIFE POLICY AND ON THIS APPLICATION HE DESIGNATED AS BENEFICIARY WIFE, MRS. ELLA M. PARTRIDGE, 260 SIMPSON STREET, MEMPHIS, TENNESSEE. SUBSEQUENT TO THE ISSUANCE OF THE ADJUSTED COMPENSATION CERTIFICATE AND THE CONVERTED POLICY THE VETERAN GAVE BOTH THE CERTIFICATE AND THE POLICY TO MISS POWER AND SHORTLY AFTER THEIR ENGAGEMENT WAS BROKEN BOTH THE CERTIFICATE AND THE POLICY WERE RETURNED TO THE VETERAN.

ON MARCH 1, 1926, THE VETERAN ADDRESSED A COMMUNICATION TO THE BUREAU AS FOLLOWS:

"FIND ENCLOSED POLICY NO. K-384065 ISSUED TO THE UNDERSIGNED AND MADE PAYABLE TO MY FORMER WIFE, MRS. ELLA MARY PARTRIDGE.

"WILL YOU PLEASE CHANGE THE POLICY TO READ PAYABLE TO MRS. ANNE SARAH PARTRIDGE, WIFE OF THE UNDERSIGNED. * * *.'

UNDER DATE OF MARCH 10, 1926, THE BUREAU RETURNED THE INSURANCE POLICY TO THE VETERAN ENDORSED WITH THE REQUESTED CHANGE OF BENEFICIARY AND REQUESTED HIM TO EXECUTE BUREAU FORM 724 SO THAT THE RECORDS MAY BE COMPLETE. THIS FORM WAS PROPERLY EXECUTED ON MAY 4, 1926. NO CHANGE OF BENEFICIARY FOR THE ADJUSTED COMPENSATION WAS EVER EXECUTED BY THE VETERAN.

THE VETERAN DIED ON NOVEMBER 9, 1927, AND SUBSEQUENT TO HIS DEATH HIS WIFE, MRS. ANNE BRADY PARTRIDGE, REQUESTED THAT THE BENEFITS PAYABLE UNDER THE ADJUSTED SERVICE CERTIFICATE BE AWARDED TO HER ON THE GROUND THAT THE VETERAN INTENDED HIS WIFE TO RECEIVE THE BENEFITS THEREUNDER,AND FURTHER THAT MISS POWER DID NOT DESIRE TO RECEIVE THE ADJUSTED COMPENSATION BENEFITS.

ON MAY 9, 1928, THE ASSISTANT DIRECTOR, ADJUDICATION SERVICE, REQUESTED THAT THE LEGAL SERVICE OF THE BUREAU RENDER AN OPINION AS TO WHETHER THE ADJUSTED SERVICE BENEFITS COULD BE PAID TO THE WIFE IN VIEW OF THE FACT STATED ABOVE, AND ON MAY 17, 1928, THE LEGAL SERVICE HELD THAT UNDER THE PRINCIPLES LAID DOWN BY YOU IN YOUR DECISION OF FEBRUARY 23, 1926 (5 COMP. GEN. 651), THE BUREAU MUST PAY THE PROCEEDS OF THE CERTIFICATE TO THE DESIGNATED BENEFICIARY AND THAT SHE CAN NOT WAIVE HER RIGHTS TO SUCH PAYMENT IN FAVOR OF THE WIDOW OF THE VETERAN OR HIS ESTATE, BUT THAT THERE WAS NO REASON WHY THE DESIGNATED BENEFICIARY, UPON RECEIPT OF A CHECK IN PAYMENT OF THE PROCEEDS OF THE CERTIFICATE, SHOULD NOT IN TURN DELIVER THE PAYMENT TO THE WIDOW OR TO THE REPRESENTATIVE OF THE VETERAN'S ESTATE IF SHE SO DESIRED.

IN YOUR DECISION OF FEBRUARY 23, 1926, SUPRA, YOU HELD THAT A VETERAN MAY DESIGNATE ANY PERSON WHETHER A RELATIVE OR NOT AS THE BENEFICIARY UNDER HIS ADJUSTED SERVICE CERTIFICATE AND A DESIGNATED BENEFICIARY WHO IS NOT A RELATIVE MAY NOT WAIVE OR RELINQUISH RIGHT TO PAYMENT FROM THE UNITED STATES IN FAVOR OF A RELATIVE UPON THE DEATH OF THE VETERAN, AND THAT IF THE PERSON DESIGNATED AS BENEFICIARY IN THE APPLICATION FOR AN ADJUSTED SERVICE CERTIFICATE CAN BE IDENTIFIED AS THE PERSON INTENDED BY THE VETERAN, A MISSTATEMENT IN THE APPLICATION AS TO THE CORRECT NAME OF THE BENEFICIARY OR THE RELATIONSHIP TO THE VETERAN, WILL NOT DEFEAT SUCH INTENTION, IF NO FRAUD IS TO BE IMPLIED FROM SUCH MISSTATEMENT. IN THIS DECISION YOU STATED:

"* * * THERE MUST BE GIVEN EFFECT TO THE VETERAN'S INTENT AS EXPRESSED RATHER THAN AS SURMISED. HE MAY HAVE INTENDED CHANGING THE DESIGNATION IN THE EVENT THE MARRIAGE DID NOT OCCUR AS PLANNED, BUT NO SUCH CHANGE WAS IN FACT MADE OR REQUESTED BY HIM PRIOR TO HIS DEATH. THE DESCRIPTION GIVEN BY THE VETERAN AS "WIFE" WOULD NOT NECESSARILY MEAN THAT HE INTENDED NO DESIGNATION IN THE EVENT THE MARRIAGE SHOULD NOT OCCUR PRIOR TO A REQUEST FOR CHANGE BY HIM, OR PRIOR TO HIS DEATH. AS THE FACT NOW APPEAR PAYMENT COULD NOT PROPERLY BE MADE TO OTHER THAN THE DESIGNATED BENEFICIARY, HER IDENTITY HAVING BEEN ESTABLISHED, BUT THERE WOULD APPEAR NO REASON FOR OBJECTION IF, IN VIEW OF THE FACTS AS STATED BY HER, SHE SHOULD IN TURN DELIVER THE PAYMENT TO A PROPER REPRESENTATIVE OF THE VETERAN'S ESTATE TO BECOME AN ASSET THEREOF.'

THE INTERESTED PARTIES WERE ADVISED OF THE DECISION OF THE LEGAL SERVICE BY THE ADJUDICATION SERVICE.

ON JUNE 14, 1928, HONORABLE HUBERT F. FISHER REQUESTED THAT FURTHER ACTION IN THIS MATTER BE DEFERRED FOR A PERIOD OF THIRTY DAYS. ON JUNE 23, 1928, MISS POWER EXECUTED BUREAU FORM 582 (DEMAND FOR PAYMENT OF AMOUNT DUE ON ADJUSTED SERVICE CERTIFICATE). BEFORE PAYMENT ON THE DEMAND EXECUTED BY MISS POWER WAS MADE, THE WIDOW OF THE VETERAN FILED SUIT IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DIVISION OF TENNESSEE PRAYING THAT PAYMENT UNDER THE ADJUSTED SERVICE CERTIFICATE IN QUESTION BE DECREED. THIS SUIT WAS SUBSEQUENTLY DISMISSED UNDER THE PRECEDENT IN THE CASE OF FLORENCE WILLIAMS VS. UNITED STATES, WHEREIN IT WAS HELD THAT THERE IS NO RIGHT TO SUE FOR ADJUSTED COMPENSATION BENEFITS. AFTER THE DISMISSAL OF THE SUIT THE WIDOW, THROUGH HER ATTORNEY, B. J. SEMMES, MEMPHIS, TENNESSEE, AND HONORABLE HUBERT F. FISHER, AGAIN CONTENDED THAT IT WAS NOT THE INTENTION OF THE VETERAN TO HAVE MISS POWER RECEIVE THE BENEFITS OF HIS ADJUSTED COMPENSATION, AND STATED THAT IF THE BUREAU COULD NOT AWARD THE BENEFITS TO THE WIFE, AS DESIGNATED BENEFICIARY, THEN IT SHOULD BE HELD THAT NO BENEFICIARY WAS IN FACT DESIGNATED, AND THAT THE ADJUSTED COMPENSATION BENEFITS SHOULD BE PAID TO THE VETERAN'S ESTATE.

WHILE THE BUREAU AGREES THAT THE FACTS IN THIS CASE ARE, AS POINTED OUT BY THE ATTORNEY FOR THE VETERAN'S WIDOW, SOMEWHAT DIFFERENT FROM THE FACTS IN THE CASE WHICH WERE CONSIDERED BY YOU IN FEBRUARY, 1926, IT IS BELIEVED THAT THE DIFFERENCE IS NOT MATERIAL, AND THE BUREAU HAS ACTED ON THE CASE ON THIS BASIS. I HAVE NOT FINALLY DECIDED THE CASE, AND BEFORE SO DOING, PURSUANT TO THE REQUEST OF CONGRESSMAN FISHER, I AM SOLICITING YOUR DECISION.

APPARENTLY THE ADJUDICATION SERVICE OF THE BUREAU, IN ACCORDANCE WITH THE CONTENTION OF CONGRESSMAN FISHER, MADE AN AWARD IN FAVOR OF MRS. ANNE BRADY PARTRIDGE, AS ADMINISTRATRIX OF THE ESTATE OF HER DECEASED HUSBAND. PAYMENT OF THIS AWARD WAS NOT APPROVED BY THIS OFFICE, THE CASE BEING REGARDED AS CONTROLLED BY THE DECISION OF FEBRUARY 23, 1926, CITED IN YOUR SUBMISSION.

IN SO FAR AS THE DESIGNATION OF BENEFICIARIES IS CONCERNED, GENERAL PRINCIPLES APPLICABLE TO LIFE INSURANCE MAY BE APPLIED TO ADJUSTED SERVICE CERTIFICATES. AT THE TIME OF THE ORIGINAL DESIGNATION THE VETERAN WAS ENGAGED TO MARRY MISS ELLA M. POWER, AND THERE CAN BE NO DOUBT WHATEVER, BASED ON THE RECORD IN THIS CASE, THAT THE VETERAN INTENDED TO, AND DID, DESIGNATED HER AS BENEFICIARY IN HIS APPLICATION FOR THE ADJUSTED SERVICE CERTIFICATE. AS STATED IN THE PRIOR DECISION, QUOTED IN YOUR SUBMISSION, A MISDESCRIPTION IN THE NAME AND THE USE OF THE TERM "WIFE," DID NOT DEFEAT THE DESIGNATION. THERE IS AMPLE AUTHORITY FOR THIS CONCLUSION. 37 CORPUS JURIS 567 IT IS STATED,"IF THE DESIGNATION OF THE BENEFICIARY AS THE WIFE OF THE INSURED IS DESCRIPTIVE ONLY, SHE BEING NAMED, IT IS IMMATERIAL WHETHER OR NOT SHE IS HIS LAWFUL WIFE, OR EVEN THAT ANOTHER PERSON IS HIS LEGAL WIFE, OR EVEN THOUGH HE IS ONLY ENGAGED TO BE MARRIED TO THE PERSON NAMED AND DESIGNATED AS WIFE.' A NUMBER OF DECISIONS ARE CITED IN SUPPORT OF THESE PRINCIPLES. IF THE DESIGNATION HAS SIMPLY BEEN THE GENERAL TERM "WIFE," NOT COUPLED WITH A NAME THAT IDENTIFIED AN INDIVIDUAL, EVEN THROUGH THE VETERAN WAS THEN UNMARRIED, THERE MIGHT BE MERIT IN THE CONTENTION THAT THE WOMAN SUBSEQUENTLY BECOMING THE WIFE WAS THE BENEFICIARY OF THE CERTIFICATE AT THE TIME OF THE VETERAN'S DEATH. BUT WHERE A NAME HAS BEEN GIVEN FROM WHICH THE PERSON INTENDED CAN BE EASILY IDENTIFIED, THE USE OF THE SURNAME OF THE VETERAN AND THE TERM "WIFE" DOES NOT DEFEAT THE DESIGNATION. THE SUBSEQUENT MARRIAGE OF THE VETERAN TO ANOTHER WOMAN DID NOT, IPSO FACTO, DIVEST THE DESIGNATED BENEFICIARY OF HER RIGHTS. ACCORDINGLY, THERE CAN BE NO DOUBT AS TO THE IDENTITY OF THE ORIGINALLY DESIGNATED BENEFICIARY AND HER RIGHTS TO THE PROCEEDS OF THE CERTIFICATE COULD BE LOST ONLY BY A CHANGE OF BENEFICIARY MADE IN ACCORDANCE WITH REGULATIONS ISSUED BY THE VETERANS' BUREAU PURSUANT TO THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT (SECS. 501 AND 508), OR IF NO CHANGE OF BENEFICIARY WAS MADE, BY AN INTENTION BEING CLEARLY EXPRESSED IN WRITING BY THE VETERAN HIMSELF THAT THE ORIGINALLY DESIGNATED BENEFICIARY WAS NOT TO RECEIVE THE PROCEEDS OF THE CERTIFICATE IN WHICH LATTER EVENT THE PROCEEDS OF THE CERTIFICATE ARE PAYABLE TO THE ESTATE OF THE VETERAN AS THOUGH NO BENEFICIARY HAS BEEN DESIGNATED. 6 COMP. GEN. 599; 9 ID. 195). DECISION OF JANUARY 14, 1930, A-28938, 9 ID 285. NEITHER OF THESE CONDITIONS ARE DISCLOSED IN THE INSTANT CASE.

THERE HAS BEEN AN ATTEMPT, BY THE AFFIDAVITS OF BOTH INTERESTED AND DISINTERESTED PARTIES, TO SHOW AN INTENT BY THE ACTIONS AND CONVERSATIONS OF THE VETERAN SUBSEQUENT TO HIS MARRIAGE, THAT HIS WIFE AND NOT THE ORIGINALLY DESIGNATED BENEFICIARY WAS TO RECEIVE THE PROCEEDS OF THE ADJUSTED SERVICE CERTIFICATE. IN THIS CONNECTION IT IS ALLEGED THAT THE VETERAN DID NOT CHANGE THE BENEFICIARY OF HIS ADJUSTED SERVICE CERTIFICATE BECAUSE HE THOUGHT THE CHANGE IN THE BENEFICIARY OF HIS INSURANCE POLICY WOULD, ALSO, CHANGE THE BENEFICIARY OF HIS ADJUSTED SERVICE CERTIFICATE. IT IS ALLEGED, ALSO, THAT HE DID NOT CHANGE THE BENEFICIARY OF HIS ADJUSTED SERVICE CERTIFICATE BECAUSE HE THOUGHT THE USE OF THE TERM "WIFE" IN THE ORIGINAL APPLICATION WOULD BE SUFFICIENT. SIGNIFICANCE IS ATTACHED ALSO, TO THE FACT THAT THE INSURANCE POLICY AND THE ADJUSTED SERVICE CERTIFICATE WERE IN THE POSSESSION OF THE WIFE DURING THEIR ENTIRE MARRIED LIFE AND AT THE DATE OF THE DEATH OF THE VETERAN. THERE IS INDICATION THAT THESE WERE VOLUNTARILY RETURNED TO THE VETERAN BY MISS POWER, BUT WHETHER VOLUNTARILY RETURNED OR UPON REQUEST OF THE VETERAN, POSSESSION ALONE OF THE CERTIFICATE VESTED NO RIGHT IN THE WIFE TO THE PROCEEDS OF THE CERTIFICATE IF ANOTHER WAS DESIGNATED AS BENEFICIARY THEREOF. THERE IS, ALSO, AN AFFIDAVIT BY A DISINTERESTED PARTY RELATING A REQUEST BY THE VETERAN THAT MONEY BE LOANED TO HIS WIFE IN THE CASE OF HIS DEATH WHICH SHE WOULD BE ABLE TO REPAY FROM THE PROCEEDS OF HIS ADJUSTED SERVICE CERTIFICATE. IT IS NOT BELIEVED THAT ANY COURT WOULD ADMIT SUCH EVIDENCE TO DEFEAT THE RIGHTS OF THE DESIGNATED BENEFICIARY. APPARENTLY, SOME SIGNIFICANCE HAS BEEN ATTACHED ALSO, TO THE FACT THAT MISS POWER FIRST CLAIMED NO INTEREST IN THE MATTER AND DESIRED TO BE LEFT ALONE, AS POSSIBLY DEFEATING HER RIGHTS. THERE IS NO SIGNIFICANCE TO BE ATTACHED TO THIS EXPRESSION ON THE PART OF MISS POWER IF SHE IS ENTITLED AS A MATTER OF LAW TO THE PROCEEDS OF THE CERTIFICATE.

WHILE THERE IS, OF COURSE, A POSSIBILITY THAT THIS VETERAN THOUGHT HIS WIFE WOULD RECEIVE THE PROCEEDS OF HIS ADJUSTED SERVICE CERTIFICATE, THERE IS ON THE OTHER HAND, A POSSIBILITY THAT HE KNEW MISS POWER WOULD RECEIVE THE PROCEEDS AND HAD PURPOSELY REFRAINED FROM HAVING THE DESIGNATION CHANGED. WHATEVER MAY HAVE BEEN IN THE MIND OF THE VETERAN I AM CONSTRAINED TO THE VIEW THAT IN THE PAYMENT OF THE AMOUNT DUE UNDER AN ADJUSTED SERVICE THERE IS NO LEGAL PRINCIPLE OR SOUND BASIS UNDER WHICH THE RIGHT OF THE ORIGINALLY DESIGNATED BENEFICIARY CAN BE DEFEATED SOLELY ON THE BASIS OF PAROL EVIDENCE, ADDUCED AFTER THE DEATH OF THE VETERAN, TENDING TO SHOW HIS INTENT OR UNDERSTANDING THAT SOME ONE OTHER THAN SUCH DESIGNATED BENEFICIARY SHOULD RECEIVE THE AMOUNT.

THE RECORD IN THIS CASE DISCLOSES NOTHING WHATEVER IN WRITING SIGNED BY THE VETERAN WHICH INDICATES AN INTENTION THAT MISS POWER, THE ORIGINALLY DESIGNATED BENEFICIARY, SHOULD NOT RECEIVE THE PROCEEDS OF HIS ADJUSTED SERVICE CERTIFICATE, AND IN NO COMMUNICATION TO THE VETERANS' BUREAU DID HE EVER INDICATE AN INTENT TO CHANGE THE ORIGINALLY DESIGNATED BENEFICIARY OF THE CERTIFICATE. YOU ARE ADVISED, THEREFORE, THAT PAYMENT UNDER THE ADJUSTED SERVICE CERTIFICATE IN THIS CASE MAY BE MADE BY THE GOVERNMENT ONLY TO THE ORIGINALLY DESIGNATED BENEFICIARY, ELLA M. POWER.