A-35118, FEBRUARY 7, 1931, 10 COMP. GEN. 348

A-35118: Feb 7, 1931

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IS NOT A POWER "COUPLED WITH AN INTEREST. " AS THE RIGHT TO SHARE IN THE OSAGE TRUST FUNDS IS NOT ASSIGNABLE. AS FOLLOWS: THERE ARE ENCLOSED COPIES OF VARIOUS LETTERS IN REGARD TO THE CASE OF MARK S. WHOSE FUNDS ARE BEING HELD AT THE OSAGE AGENCY OFFICE ON ACCOUNT OF BANKRUPTCY PROCEEDINGS. IN WHICH YOU STATED THERE WOULD BE NO OBJECTION SHOULD WE CONCLUDE IT DESIRABLE TO SUSPEND FURTHER PAYMENTS TO BANKRUPT INDIANS OR BANKRUPT HOLDERS OF INDIAN HEAD-RIGHTS UNTIL THE DENNISON CASE THEN ON APPEAL WAS FINALLY DETERMINED. IN EACH CASE THE APPEAL WAS DISMISSED AND THE ORDERS OF THE UNITED STATES DISTRICT COURTS THEREFORE BECAME FINAL. SUPERINTENDENT WRIGHT WAS ADVISED UNDER DATE OF DECEMBER 19.

A-35118, FEBRUARY 7, 1931, 10 COMP. GEN. 348

POWERS OF ATTORNEY - INDIAN - OSAGE TRUST FUNDS A POWER OF ATTORNEY GIVEN BY A COMPETENT OSAGE INDIAN PURPORTING TO AUTHORIZE THE AGENT OR ATTORNEY TO RECEIVE THE INDIAN'S SHARE IN THE DISTRIBUTION OF THE OSAGE TRUST FUNDS, IN CONSIDERATION OF ADVANCES TO THE INDIAN TO PAY OFF OTHER DEBTS, IS NOT A POWER "COUPLED WITH AN INTEREST," AS THE RIGHT TO SHARE IN THE OSAGE TRUST FUNDS IS NOT ASSIGNABLE, NOR AN ASSET TO BE ADMINISTERED BY A TRUSTEE IN BANKRUPTCY. UPON REVOCATION OF THE POWER OF ATTORNEY BY THE INDIAN ALL PAYMENTS SHOULD BE MADE TO THE INDIAN IN PERSON AND NOT TO THE ATTORNEY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 7, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 27, 1931, AS FOLLOWS:

THERE ARE ENCLOSED COPIES OF VARIOUS LETTERS IN REGARD TO THE CASE OF MARK S. REVARD, WHOSE FUNDS ARE BEING HELD AT THE OSAGE AGENCY OFFICE ON ACCOUNT OF BANKRUPTCY PROCEEDINGS.

YOU RENDERED A DECISION UNDER DATE OF SEPTEMBER 9, 1930, IN WHICH YOU STATED THERE WOULD BE NO OBJECTION SHOULD WE CONCLUDE IT DESIRABLE TO SUSPEND FURTHER PAYMENTS TO BANKRUPT INDIANS OR BANKRUPT HOLDERS OF INDIAN HEAD-RIGHTS UNTIL THE DENNISON CASE THEN ON APPEAL WAS FINALLY DETERMINED. ON OCTOBER 21, 1930, AT WICHITA, KANSAS, THE UNITED STATES CIRCUIT COURT OF APPEALS HEARD THE CASES AFFECTING BERT DENNISON AND GOLDIE JULIA PURVIS, BOTH OSAGE BANKRUPTS. IN EACH CASE THE APPEAL WAS DISMISSED AND THE ORDERS OF THE UNITED STATES DISTRICT COURTS THEREFORE BECAME FINAL, THUS ENTITLING THE BANKRUPTS TO RECEIVE THEIR QUARTERLY ANNUITY CHECKS. AS A RESULT OF SAID DECISION, SUPERINTENDENT WRIGHT WAS ADVISED UNDER DATE OF DECEMBER 19, 1930, TO PAY ALL CHECKS TO INDIAN BANKRUPTS EXCEPT FAY REVARD, MARY PLOMONDON JONES, AND BERT DENNISON, AS THERE WERE CASES PENDING IN THE DISTRICT OF COLUMBIA COURT INVOLVING FAY REVARD AND BERT DENNISON AND INFORMAL NOTICE HAD BEEN RECEIVED THAT SUIT WOULD BE BROUGHT IN THE CASE OF MARY PLOMONDON JONES. WE ARE NOW IN RECEIPT OF A TELEGRAM FROM SUPERINTENDENT WRIGHT WHICH READS AS FOLLOWS:

"YOUR WIRE NINETEENTH REFERENCE TO BANKRUPTS. MARK S. REVARD POWER TO CHAS. F. STUART FOR BENEFIT CERTAIN CREDITORS DATED SEPTEMBER 20, 1929. LATER, BECAUSE THEREOF, COURT ADJUDICATES HIM BANKRUPT INVOLUNTARY PROCEEDINGS, CREDITORS REPRESENTED BY STUART LISTED WITH OTHER CREDITORS. REVOCATION OF ABOVE MENTIONED POWER FILED WITH ME DECEMBER 11. STUART OBJECTS TO REVOCATION, REVARD INSISTS ADJUDICATION IN BANKRUPTCY TOGETHER WITH REVOCATION VACATES POWER OF ATTORNEY AND REQUESTS DELIVERY OF CHECKS. PLEASE WIRE.'

THE RECORDS SHOW THAT MARK REVARD GOT INTO FINANCIAL DIFFICULTIES AND WANTED TO OBTAIN $6,000 FOR THE PURPOSE OF PAYING OFF INDEBTEDNESS IN CONNECTION WITH HIS DRY-CLEANING BUSINESS. HE THEREFORE EXECUTED A POWER OF ATTORNEY APPOINTING MR. CHAS. F. STUART OF PAWHUSKA, OKLAHOMA, HIS ATTORNEY IN FACT. PENDING APPROVAL OF THIS INSTRUMENT, IT WAS SUGGESTED THAT MR. REVARD INCLUDE ALL OF HIS INDEBTEDNESS IN THE POWER OF ATTORNEY. HE AGREED TO DO THIS AND THE POWER OF ATTORNEY WAS APPROVED BY THE DEPARTMENT OCTOBER 11, 1929. THE FOLLOWING MAY (1930) HE ATTEMPTED TO REVOKE THE SAID POWER OF ATTORNEY BECAUSE HE HAD BEEN ADJUDGED A BANKRUPT AND ALL HIS DEBTS HAD BEEN LISTED IN THE BANKRUPTCY COURT. HOWEVER, WE REFUSED TO APPROVE THE REVOCATION BECAUSE MR. STUART HAD ADVANCED A LARGE SUM OF MONEY TO MR. REVARD AND HAD ASSUMED OBLIGATIONS FOR HIM WHICH HAD NOT BEEN PAID.

IN ORDER THAT PROPER INSTRUCTIONS MAY BE ISSUED TO THE DISBURSING AGENT AT THE OSAGE AGENCY IN THE MATTER OF MAKING PAYMENT OF FUNDS UNDER THESE CIRCUMSTANCES, A RULING FROM YOU IS REQUESTED AS TO WHETHER PAYMENT SHOULD BE MADE TO THE ALLOTTEE OR TO HIS ATTORNEY IN FACT.

IT APPEARS FROM THE RECORD THAT THE CREDITORS FOR WHOSE BENEFIT THE POWER OF ATTORNEY WAS EXECUTED HAVE FILED THEIR CLAIMS WITH THE REFEREE IN BANKRUPTCY. HAD THE SUBJECT MATTER OF THE POWER OF ATTORNEY IN THIS CASE CONSISTED OF REAL OR PERSONAL PROPERTY OF THE INDIAN, OVER WHICH HE HAD THE POWER OF DISPOSITION, THE POWER GIVEN TO THE AGENT IN CONSIDERATION OF ADVANCES TO PAY OFF OTHER INDEBTEDNESS OF THE INDIAN MIGHT HAVE BEEN CONSIDERED A POWER COUPLED WITH AN INTEREST, SUCH AS IS ORDINARILY IRREVOCABLE. HOWEVER, THE SUBJECT MATTER OF THE POWER IN THIS CASE WAS THE INDIAN'S RIGHT TO SHARE IN THE DISTRIBUTION OF THE OSAGE TRUST FUNDS, AND IT HAS BEEN HELD THAT SUCH RIGHT IS NOT ASSIGNABLE, NOR DOES IT CONSTITUTE AN ASSET TO BE ADMINISTERED BY A TRUSTEE IN BANKRUPTCY. IN RE DENNISON, 38 FED. REP. (2D), 662. THE SUBJECT MATTER OF THE POWER NOT BEING ASSIGNABLE, THE AGENT OR ATTORNEY ACQUIRED NO INTEREST THEREIN UNDER THE POWER OF ATTORNEY WHICH WAS, THEREFORE, REVOCABLE AT THE WILL OF THE INDIAN. THE INDIAN HAVING REVOKED THE POWER OF ATTORNEY, NO FURTHER PAYMENTS SHOULD BE DELIVERED TO THE ATTORNEY BUT SHOULD BE MADE TO THE INDIAN IN PERSON UNLESS AN ORDER OF A PROPER COURT SHOULD DIRECT OTHERWISE.