A-41574, MAY 9, 1932, 11 COMP. GEN. 418

A-41574: May 9, 1932

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PAY - NAVAL SERVICE - INCOMPETENTS WHERE THERE ARE TWO GUARDIANS APPOINTED BY COURTS OF DIFFERENT JURISDICTIONS. SUCH PAY ILL NOT BE PAID TO EITHER GUARDIAN UNTIL ONE OF THE CONFLICTING GUARDIANSHIPS IS SET ASIDE OR CLOSED BY THE COURT MAKING THE APPOINTMENT. THE ABOVE-NAMED MAN WAS TRANSFERRED TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' NAVAL SERVICE ON 8 JANUARY. THE BUREAU OF SUPPLIES AND ACCOUNTS WAS INFORMED BY ONE ATTORNEY WESLEY C. THAT HE REPRESENTED GRAHAM WHO WAS THEN CONFINED IN THAT STATE AWAITING TRIAL FOR THE MURDER OF HIS WIFE IN NORFOLK COUNTY. THE SECRETARY OF THE NAVY ADDRESSED A LETTER TO THE MEDICAL DIRECTOR OF THE INSTITUTION WHERE GRAHAM WAS CONFINED CONCERNING THE APPOINTMENT OF A GUARDIAN.

A-41574, MAY 9, 1932, 11 COMP. GEN. 418

PAY - NAVAL SERVICE - INCOMPETENTS WHERE THERE ARE TWO GUARDIANS APPOINTED BY COURTS OF DIFFERENT JURISDICTIONS, EACH CLAIMING RETAINER PAY DUE AN INCOMPETENT, SUCH PAY ILL NOT BE PAID TO EITHER GUARDIAN UNTIL ONE OF THE CONFLICTING GUARDIANSHIPS IS SET ASIDE OR CLOSED BY THE COURT MAKING THE APPOINTMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 9, 1932:

THE JUDGE ADVOCATE GENERAL OF THE NAVY BY SECOND INDORSEMENT OF MARCH 24, 1932, FORWARDED FOR ADVANCE DECISION THE QUESTION PRESENTED IN LETTER DATED MARCH 8, 1932, ADDRESSED TO YOU FROM THE OFFICER IN CHARGE, RETAINER PAY DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, IN PERTINENT PART, AS FOLLOWS:

1. THE ABOVE-NAMED MAN WAS TRANSFERRED TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' NAVAL SERVICE ON 8 JANUARY, 1927, AND TO THE RETIRED LIST ON 1 MARCH, 1932. ON 14 SEPTEMBER, 1928, THE BUREAU OF SUPPLIES AND ACCOUNTS WAS INFORMED BY ONE ATTORNEY WESLEY C. HALEY OF QUINCY, MASSACHUSETTS, THAT HE REPRESENTED GRAHAM WHO WAS THEN CONFINED IN THAT STATE AWAITING TRIAL FOR THE MURDER OF HIS WIFE IN NORFOLK COUNTY, MASSACHUSETTS.

2. ON 9 SEPTEMBER, 1929, MR. HALEY INFORMED THE BUREAU OF SUPPLIES AND ACCOUNTS THAT GRAHAM, WITHOUT BEING BROUGHT TO TRIAL HAD BEEN SENT TO THE HOSPITAL FOR THE CRIMINAL INSANE AT BRIDGEWATER, MASSACHUSETTS.

3. ON 21 MAY, 1930, THE SECRETARY OF THE NAVY ADDRESSED A LETTER TO THE MEDICAL DIRECTOR OF THE INSTITUTION WHERE GRAHAM WAS CONFINED CONCERNING THE APPOINTMENT OF A GUARDIAN, AND ON THE SAME DATE DIRECTED THE DISBURSING OFFICER TO MAKE NO FURTHER PAYMENTS TO GRAHAM PENDING THE RECEIPT OF FURTHER INSTRUCTIONS.

4. SINCE IT APPEARED AFTER CONSIDERABLE CORRESPONDENCE WITH ATTORNEYS AND OFFICIALS IN MASSACHUSETTS EXTENDING FROM 1929 THAT NO ACTION WAS BEING TAKEN IN MASSACHUSETTS TO HAVE A GUARDIAN APPOINTED, THE SUPERINTENDENT OF THE MASONIC HOME AT FORT WORTH, TEXAS, OF WHICH TWO MINOR CHILDREN OF GRAHAM WERE INMATES WAS INFORMED ON 15 MAY, 1931, OF THE CIRCUMSTANCES AND THAT NO RETAINER PAY COULD BE PAID UNTIL A GUARDIAN HAD BEEN APPOINTED FOR GRAHAM. THE SUPERINTENDENT THEN MADE INQUIRIES IN TEXAS AND GRAHAM HAVING BEEN A RESIDENT OF FORT WORTH, TEXAS, PRIOR TO HIS ALLEGED COMMISSION OF THE CRIME IN MASSACHUSETTS, THE COURT OF TARRANT COUNTY, TEXAS, ENTERTAINED PETITION OF AN ALLEGED SISTER OF GRAHAM FOR APPOINTMENT AS GUARDIAN.

5. IN THE MEANWHILE, ON 30 DECEMBER 1931, THE PROBATE COURT OF NORFOLK COUNTY, MASSACHUSETTS, APPOINTED WESLEY C. HALEY AND MAURICE P. SPILLANE GUARDIANS OF ALLEN GRAHAM. CERTIFIED COPIES OF THIS APPOINTMENT (ENCLOSURE A) WERE RECEIVED ON 11 FEBRUARY 1932, BY ENDORSEMENT FROM THE SECRETARY OF THE NAVY WITHOUT ANY STATEMENT REVOKING THE PREVIOUS INSTRUCTIONS WITHHOLDING GRAHAM'S PAY.

THERE ARE THUS CONFLICTING GUARDIANSHIPS IN THIS CASE--- THE ONE OF MASSACHUSETTS BEING PRIOR IN POINT OF TIME WHERE THERE WAS UNQUESTIONABLY JURISDICTION OVER THE NON COMPOS MENTIS WARD WHILE THE ONE IN TEXAS WAS NOT ONLY SUBSEQUENT IN POINT OF TIME AND WHERE THERE WAS NO JURISDICTION OVER THE PERSON OF THE NON COMPOS MENTIS WARD BUT EXTENDED TO THE ESTATE, ONLY, OF THE WARD. IT DOES NOT APPEAR WHAT, IF ANY, ESTATE THE WARD MAY HAVE HAD IN TEXAS BUT A CLAIM AGAINST THE UNITED STATES FOR RETAINER PAY HAS NO SITUS, EITHER IN TEXAS OR IN MASSACHUSETTS. SEE BORCHERLING V. UNITED STATES, 185 U.S. 223, AND LINDBERG V. HUMPHREY, 53 APP.D.C. 243. IN VIEW OF THE CONFLICTING GUARDIANSHIPS, THE UNITED STATES MAY NOT SAFELY UNDER THE PRINCIPLES STATED IN THE BORCHERLING CASE PAY EITHER GUARDIAN UNLESS THE OTHER SURRENDERS THEIR OR HER GUARDIANSHIP.

ANSWERING YOUR QUESTION SPECIFICALLY YOU ARE ADVISED THAT NO PAYMENTS OF RETAINER PAY MAY BE MADE AT THIS TIME TO EITHER THE MASSACHUSETTS OR TEXAS GUARDIANS AND THEY SHOULD BE INFORMED THAT UNLESS AND UNTIL AN AGREEMENT IS REACHED BY SUCH GUARDIANS AS TO WHICH ONE IS TO FUNCTION AND THE OTHER GUARDIANSHIP IS SET ASIDE OR CLOSED BY THE APPOINTING COURT, THE UNITED STATES MUST CONTINUE TO REFUSE TO MAKE SUCH PAYMENTS UNTIL IN AN APPROPRIATE LEGAL PROCEEDING IT BE JUDICIALLY ESTABLISHED WHICH OF THE GUARDIANS IS ENTITLED TO THE PAYMENTS ON BEHALF OF THE WARD. WHEN THE GUARDIANS HAVE COMPOSED THEIR CONFLICTING CLAIMS AS SUGGESTED OR THEIR RIGHTS HAVE BEEN ESTABLISHED IN AN APPROPRIATE LEGAL PROCEEDING, THE MATTER SHOULD BE RESUBMITTED HERE BEFORE PAYMENTS OF THE RETAINER PAY ARE MADE.

ALL UNDELIVERED RETIRED PAY CHECKS IN FAVOR OF ALLEN GRAHAM NOW IN POSSESSION OF THE NAVY DEPARTMENT SHOULD BE FORWARDED TO THIS OFFICE PURSUANT TO THE REQUIREMENTS OF THIS OFFICE, BULLETIN NO. 3, MAY, 1923, AND SUPPLEMENT NO. 1, AUGUST 16, 1927.