A-49915, SEPTEMBER 5, 1933, 13 COMP. GEN. 72

A-49915: Sep 5, 1933

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VETERANS' ADMINISTRATION - ADJUSTED-SERVICE CERTIFICATES - BENEFICIARIES - MURDER A PERSON NAMED IN AN ADJUSTED-SERVICE CERTIFICATE AS BENEFICIARY IS NOT ENTITLED TO PAYMENT OF THE AMOUNT OF THE ADJUSTED-SERVICE CERTIFICATE WHEN THE DEATH OF THE VETERAN RESULTS FROM THE ACTS OF THE BENEFICIARY AND THE BENEFICIARY IS CONVICTED BY A COURT OF COMPETENT JURISDICTION ON ACCOUNT THEREOF. 1933: THERE IS BEFORE THIS OFFICE FOR PREAUDIT APPROVAL A PROPOSED PAYMENT OF $149.19 TO ANNA LEE TURNER OR ANNA LEE MOSS. WHO WAS REPORTED APRIL 24. BY THE ADJUTANT GENERAL OF THE ARMY TO HAVE BEEN INDUCTED INTO THE MILITARY SERVICE ON OCTOBER 29. WHO WAS AGAIN INDUCTED AUGUST 22. WHO WAS TRIED IN THE CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT OF ALABAMA.

A-49915, SEPTEMBER 5, 1933, 13 COMP. GEN. 72

VETERANS' ADMINISTRATION - ADJUSTED-SERVICE CERTIFICATES - BENEFICIARIES - MURDER A PERSON NAMED IN AN ADJUSTED-SERVICE CERTIFICATE AS BENEFICIARY IS NOT ENTITLED TO PAYMENT OF THE AMOUNT OF THE ADJUSTED-SERVICE CERTIFICATE WHEN THE DEATH OF THE VETERAN RESULTS FROM THE ACTS OF THE BENEFICIARY AND THE BENEFICIARY IS CONVICTED BY A COURT OF COMPETENT JURISDICTION ON ACCOUNT THEREOF. NO DISTINCTION MAY BE MADE IN SUCH CASES BETWEEN A CONVICTION FOR MURDER AND MANSLAUGHTER.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, SEPTEMBER 5, 1933:

THERE IS BEFORE THIS OFFICE FOR PREAUDIT APPROVAL A PROPOSED PAYMENT OF $149.19 TO ANNA LEE TURNER OR ANNA LEE MOSS, AS THE WIDOW AND DESIGNATED BENEFICIARY, AS PROVIDED IN SECTION 501 OF THE ACT OF MAY 19, 1924, 43 STAT. 125, OF TURNER MOSS, FORMERLY PRIVATE, COMPANY G, THREE HUNDRED AND SIXTY-SIXTH INFANTRY, COLORED, WHO WAS REPORTED APRIL 24, 1930, BY THE ADJUTANT GENERAL OF THE ARMY TO HAVE BEEN INDUCTED INTO THE MILITARY SERVICE ON OCTOBER 29, 1917, AT BIRMINGHAM, ALA; AND HONORABLY DISCHARGED FEBRUARY 26, 1918, AND WHO WAS AGAIN INDUCTED AUGUST 22, 1918, AND DISCHARGED FROM THE DRAFT ON AUGUST 26, 1918, ON A SURGEON'S CERTIFICATE OF PHYSICAL DEFICIENCY, PERFORMING 127 DAYS OF ACTIVE HOME MILITARY SERVICE. THE VETERAN DIED ON JULY 18, 1929, AS THE RESULT OF A GUNSHOT WOUND INFLICTED BY THE WIDOW, WHO WAS TRIED IN THE CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT OF ALABAMA, CRIMINAL DIVISION, ON AN INDICTMENT RETURNED BY THE GRAND JURY OF JEFFERSON COUNTY, ALA; CHARGING MURDER IN THE FIRST DEGREE, RESULTING IN CONVICTION BY THE JURY OF THE WIDOW AS GUILTY OF MANSLAUGHTER IN THE SECOND DEGREE AND HER PUNISHMENT FIXED AT A FINE OF $100 AND A SUSPENDED SENTENCE OF 6 MONTHS, WHICH WAS ENTERED BY THE COURT AND DULY EXECUTED.

THE RECORD DISCLOSES AN ALLEGATION THAT ON A NUMBER OF OCCASIONS TURNER MOSS, THE VETERAN, THREATENED THE LIFE OF ANNA LEE MOSS, HIS WIFE AND DESIGNATED BENEFICIARY OF HIS ADJUSTED-SERVICE CERTIFICATE; THAT SHE EVENTUALLY LEFT HER HOME AND REFUSED TO LIVE WITH HIM; THAT ON OR ABOUT JULY 18, 1929, HE WAS REFUSED ADMISSION TO THE HOUSE WHERE SHE LIVED; THAT HE FORCED HIS ENTRY INTO THE HOUSE, AND A STRUGGLE ENSUED FOR THE POSSESSION OF A REVOLVER WITH WHICH HE WAS ARMED; THAT ONE BULLET WAS DISCHARGED, WOUNDING THE WIDOW IN THE HAND, AND THAT THE NEXT BULLET DISCHARGED ENTERED THE STOMACH OF TURNER MOSS, CAUSING HIS DEATH. THE BENEFICIARY WAS INDICTED FOR MURDER IN THE FIRST DEGREE, TRIED AND CONVICTED OF MANSLAUGHTER IN THE SECOND DEGREE, THE JURY'S VERDICT BEING AS FOLLOWS:

WE THE JURY FIND THE DEFENDANT GUILTY OF MANSLAUGHTER IN THE 2ND DEGREE AS CHARGED IN THE INDICTMENT AND FIX HER PUNISHMENT AT A FINE OF $100. THE JURY FURTHER RECOMMEND THAT A SUSPENDED SENTENCE OF SIX MONTHS BE GIVEN THE DEFENDANT.

THE SENTENCE WAS EXECUTED, AND CLAIM HAS BEEN MADE BY THE WIDOW FOR $149.19 AS THE PROCEEDS OF THE ADJUSTED-SERVICE CERTIFICATE OF TURNER MOSS, IN WHICH SHE HAD BEEN NAMED THE BENEFICIARY. THE QUESTION INVOLVED IS WHETHER, UNDER THE ABOVE SUMMARY OF RECORD FACTS, THE WIDOW IS ENTITLED TO THE PROCEEDS OF THE ADJUSTED-SERVICE CERTIFICATE OF HER FORMER HUSBAND.

THE CLAIM DOES NOT ARISE UNDER THE ACT OF MARCH 20, 1933, 48 STAT. 8, "TO MAINTAIN THE CREDIT OF THE UNITED STATES GOVERNMENT," BUT UNDER SECTION 501 OF THE ACT OF MAY 19, 1924, 43 STAT. 125, WHICH PROVIDED THAT THERE SHOULD BE ISSUED TO VETERANS OF THE WORLD WAR A NONPARTICIPATING ADJUSTED- SERVICE CERTIFICATE OF A FACE VALUE EQUAL TO THE AMOUNT IN DOLLARS OF 20- YEAR ENDOWMENT INSURANCE THAT THE AMOUNT OF HIS ADJUSTED-SERVICE CREDIT INCREASED BY 25 PERCENT WOULD PURCHASE AT HIS AGE ON HIS BIRTHDAY NEAREST THE DATE OF THE CERTIFICATE IF APPLIED AS A SINGLE NET PREMIUM, WITH INTEREST AT 4 PERCENT PER ANNUM, COMPOUNDED ANNUALLY. IT WAS FURTHER PROVIDED THAT---

* * * THE VETERAN SHALL NAME THE BENEFICIARY OF THE CERTIFICATE AND MAY FROM TIME TO TIME, WITH THE APPROVAL OF THE DIRECTOR CHANGE SUCH BENEFICIARY. THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE * * * SHALL BE PAYABLE OUT OF THE FUND CREATED BY SECTION 505 (1) TO THE VETERAN TWENTY YEARS AFTER THE DATE OF THE CERTIFICATE, OR (2) UPON THE DEATH OF THE VETERAN PRIOR TO THE EXPIRATION OF SUCH TWENTY-YEAR PERIOD, TO THE BENEFICIARY NAMED; EXCEPT THAT IF SUCH BENEFICIARY DIES BEFORE THE VETERAN AND NO NEW BENEFICIARY IS NAMED, OR IF THE BENEFICIARY IN THE FIRST INSTANCE HAS NOT YET BEEN NAMED, THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE SHALL BE PAID TO THE ESTATE OF THE VETERAN. * * *

IT IS UNNECESSARY FOR PRESENT PURPOSES TO DETERMINE WHETHER THE AMOUNT OF THE ADJUSTED-SERVICE CERTIFICATE REPRESENTS GRATUITY INSURANCE OR AN INCREASE OVER THE RATE OF PAY ESTABLISHED BY LAW FOR MEMBERS OF THE MILITARY SERVICE DURING THE PERIOD OF THE WORLD WAR AND THUS PROPERTY OF THE VETERAN WHICH WOULD ORDINARILY BE DISTRIBUTED IN ACCORDANCE WITH ANY APPLICABLE STATUTE OF DESCENT AND DISTRIBUTION. IF THE FACT VALUE OF THE CERTIFICATE REPRESENTS INSURANCE, THERE ARE FOR CONSIDERATION THE PRINCIPLES STATED BY THE SUPREME COURT OF THE UNITED STATES IN NEW YORK MUTUAL LIFE INSURANCE CO. V. ARMSTRONG, 117 U.S. 591, 600. THERE THE BENEFICIARY NAMED IN THE LIFE-INSURANCE POLICY HAD MURDERED THE INSURED, AND THE DEFENSE WAS MADE BY THE INSURANCE COMPANY THAT THE BENEFICIARY HAD INDUCED THE INSURED TO TAKE OUT THE POLICY WITH THE INTENT OF MURDERING HIM. THE COURT DISCUSSED THIS FEATURE OF THE MATTER, BUT STATED:

* * * INDEPENDENTLY OF ANY PROOF OF THE MOTIVES OF HUNTER IN OBTAINING THE POLICY, AND EVEN ASSUMING THAT THEY WERE JUST AND PROPER, HE FORFEITED ALL RIGHTS UNDER IT WHEN, TO SECURE ITS IMMEDIATE PAYMENT, HE MURDERED THE ASSURED. IT WOULD BE A REPROACH TO THE JURISPRUDENCE OF THE COUNTRY IF ONE COULD RECOVER INSURANCE MONEY PAYABLE ON THE DEATH OF A PARTY WHOSE LIFE HE HAD FELONIOUSLY TAKEN. AS WELL MIGHT HE RECOVER INSURANCE MONEY UPON A BUILDING THAT HE HAD WILFULLY FIRED.

IT HAS BEEN URGED THAT ANNA LEE MOSS DID NOT FELONIOUSLY TAKE THE LIFE OF TURNER MOSS; THAT THE STATUTES OF ALABAMA, WHERE THE SLAYING OCCURRED, PROVIDED THAT MANSLAUGHTER BY VOLUNTARILY DEPRIVING A HUMAN BEING OF LIFE WAS MURDER IN THE FIRST DEGREE AND THAT MANSLAUGHTER COMMITTED UNDER ANY OTHER CIRCUMSTANCES WAS MURDER IN THE SECOND DEGREE AND THAT MURDER IN THE SECOND DEGREE HAD BEEN DEFINED IN THE CASE OF JOHNSON V. STATE, 94 ALA. 35, AS THE UNLAWFUL KILLING OF A HUMAN BEING WITHOUT MALICE, EITHER EXPRESS OR IMPLIED, AND WITHOUT INTENT TO KILL OR INFLICT THE INJURY CAUSING DEATH, COMMITTED ACCIDENTALLY IN THE COMMISSION OF SOME UNLAWFUL ACT NOT FELONIOUS OR IN THE IMPROPER OR NEGLIGENT PERFORMANCE OF AN ACT LAWFUL IN ITSELF; AND THAT UNDER THE ALABAMA STATUTES PUNISHMENT FOR MANSLAUGHTER IN THE SECOND DEGREE MUST, AT THE DISCRETION OF THE JURY, BE IMPRISONMENT IN THE COUNTY JAIL OR SENTENCE TO HARD LABOR FOR THE COUNTY FOR NOT MORE THAN A YEAR, WITH A FINE OF NOT MORE THAN $500. THIS CASE WAS CONCERNED WITH THE TECHNICAL RULE OF CRIMINAL LAW AND WAS NOT CONCERNED WITH THE BROAD GENERAL PRINCIPLES STATED BY THE SUPREME COURT OF THE UNITED STATES IN THE ABOVE-CITED ARMSTRONG CASE. UNQUESTIONABLY, ANNA LEE MOSS COMMITTED A WRONG AGAINST TURNER MOSS AND THE DIGNITY OF THE STATE OF ALABAMA ELSE THE JURY WOULD HAVE FOUND HER NOT GUILTY INSTEAD OF CONVICTING HER OF MANSLAUGHTER IN THE SECOND DEGREE WITH A FINE OF $100 AND RECOMMENDATION OF A SUSPENDED SENTENCE OF 6 MONTHS. THE DEGREE OF GUILT IN TAKING THE LIFE OF ANOTHER IS NOT DETERMINATIVE OF THE RIGHT OF THE MURDERER TO THE ADJUSTED-SERVICE CREDIT WHICH MAY BE FOR PAYMENT BY THE UNITED STATES.

THIS PRINCIPLE IS ILLUSTRATED BY THE CASE OF PERRY V. STRAWBRIDGE, 209 MO. 621, 16 L.R.A. (N.S.) 244, WHICH CONCERNED THE RIGHT OF INHERITANCE OF PROPERTY OF A STEPMOTHER THROUGH THE FATHER OF CLAIMANTS AND HUSBAND OF THE STEPMOTHER WHO HAD MURDERED HER. THE FATHER OF THE CLAIMANTS AND THE HUSBAND OF THE MURDERED WOMAN WAS NEVER TRIED AND CONVICTED, AS HERE, BUT COMMITTED SUICIDE. THE COURT IN THAT CASE APPEARS TO HAVE CAREFULLY CONSIDERED THE SUBJECT WHERE THE STATUTE OF DESCENT AND DISTRIBUTION PROVIDED THAT THE SPOUSE SHOULD BE ENTITLED TO A CERTAIN SHARE OF THE ESTATE OF THE DECEASED SPOUSE. THE COURT DENIED ANY RIGHT OF THE MURDERER TO A SHARE IN THE ESTATE OF HIS VICTIM AND SAID THAT THE REASON OF THE LAW PREVAILED OVER ITS LETTER, AND GENERAL TERMS ARE SO LIMITED IN THEIR APPLICATION AS NOT TO LEAD TO INJUSTICE, OPPRESSION, OR AN ABSURD CONSEQUENCE, THE PRESUMPTION BEING INDULGED THAT THE LEGISLATURE INTENDED NO SUCH ANOMALOUS RESULTS, AND THAT---

IN FACT, THE PATHWAY OF JUDICIAL LITERATURE FROM THE EARLIEST PERIOD DOWN TO THE PRESENT IS LITERALLY STREWN WITH CASES WHICH, LIKE BEACON LIGHTS, HAVE GUIDED THE HAND OF JUSTICE IN PREVENTING UNJUST, UNRIGHTEOUS, ABSURD, UNREASONABLE, AND ABHORRENT RESULTS FROM THE USE OF GENERAL WORDS AND EXPRESSIONS IN STATUTES. TO CITE AND QUOTE MORE WOULD BE BUT TO BECOME TEDIOUS. WE HAVE GONE THUS FAR ON ACCOUNT OF THE NEWNESS OF THE PARTICULAR QUESTION OF THIS CASE. UNDER THESE AUTHORITIES WE SHOULD NOT, AND WILL NOT, HOLD THAT "WIDOWER," AS USED IN SEC. 2938, SUPRA, MEANS ONE WHO HAS CREATED A CONDITION BY MURDEROUS HANDS AND HEART. THIS CASE IS WITHOUT THE STATUTE. "WIDOWER," AS THERE USED, MEANS ONE WHO HAS BEEN REDUCED TO THAT CONDITION BY THE ORDINARY AND USUAL VICISSITUDES OF LIFE, AND NOT ONE WHO, BY FELONIOUS ACT, HAS HIMSELF CREATED THAT CONDITION.

THE SUPREME COURT OF MISSOURI IN THAT CASE REFERRED TO THE COMMON LAW RULE STATED BY WHARTON ON HOMICIDE, TO THE EFFECT THAT TO PERMIT A PERSON WHO COMMITS A MURDER OR ANY PERSON CLAIMING UNDER HIM TO BENEFIT BY HIS CRIMINAL ACT WOULD BE CONTRARY TO PUBLIC POLICY; THAT NO DEVISEE CAN TAKE UNDER THE WILL OF A TESTATOR WHOSE DEATH HAS BEEN CAUSED BY THE CRIMINAL AND FELONIOUS ACT OF THE DEVISEE HIMSELF, AND THAT "IN APPLYING THIS RULE, NO DISTINCTION CAN BE MADE BETWEEN A DEATH CAUSED BY MURDER AND ONE CAUSED BY MANSLAUGHTER.'

SEE, ALSO, SECTION 250, PAGE 365, CODE OF THE DISTRICT OF COLUMBIA, WHICH PROVIDES:

PARTY COMMITTING MURDER OR MANSLAUGHTER TAKES NO INTEREST IN ESTATE OF DECEASED.--- NO PERSON WHO SHALL BE CONVICTED OF THE FELONIOUS HOMICIDE OF ANOTHER, EITHER BY WAY OF MURDER OR MANSLAUGHTER, SHALL TAKE ANY ESTATE OR INTEREST OF ANY KIND WHATSOEVER IN ANY KIND OF PROPERTY WHATSOEVER FROM THAT OTHER BY WAY OF INHERITANCE, DISTRIBUTION, DEVISE, OR BEQUEST, OR SHALL TAKE ANY REMAINDER, REVERSION, OR EXECUTORY INTEREST DEPENDENT TO WHICH THE PERSON SO CONVICTED WOULD HAVE SUCCEEDED OR WOULD HAVE TAKEN IN ANY WAY FROM OR AFTER THE DEATH OF THE PERSON SO KILLED BY HIM SHALL GO AS IF THE PERSON SO CONVICTED HAD DIED BEFORE THE PERSON WHOM HE SHALL BE CONVICTED OF KILLING. AND EVERY POLICY OF INSURANCE PROCURED, DIRECTLY OR INDIRECTLY, BY THE PERSON SO CONVICTED FOR HIS OWN BENEFIT OR PAYABLE TO HIM UPON THE LIFE OF THE PERSON SO KILLED SHALL BE VOID. THIS SECTION SHALL NOT AFFECT THE RIGHTS OF BONA FIDE PURCHASERS OF ANY SUCH PROPERTY FOR VALUE WITHOUT NOTICE. (MAR. 3, 1901, 31 STAT. 1344, C. 854, SEC. 961.)

THIS STATUTE IS NOT CONCLUSIVE IN THIS CASE, BEING LIMITED TO THE DISTRICT OF COLUMBIA, BUT IT SHOWS THE VIEWS OF CONGRESS ON THE QUESTION.

AS INDICATED IN THE STRAWBRIDGE CASE, THERE IS A DIFFERENCE OF OPINION AMONG THE STATE COURTS AS TO WHETHER A MURDERER MAY INHERIT THE PROPERTY OF THE PERSON WHOM HE HAS MURDERED; SOME OF THE COURTS HOLDING THAT UNDER THE APPLICABLE STATE STATUTES OF DESCENT AND DISTRIBUTION THE RIGHT TO TAKE THE PROPERTY IS NOT AFFECTED BY THE FACT THAT THE DEATH OF THE FORMER OWNER WAS DUE TO THE ACTS OF THE CLAIMANT, WHILE OTHER STATE COURTS TAKE THE OPPOSITE VIEW. SECTION 501 OF THE ACT OF MAY 19, 1924, DOES NOT STATE WHICH RULE SHALL BE FOLLOWED, BUT IN THE LIGHT OF THE PRINCIPLES STATED IN THE ABOVE-CITED ARMSTRONG AND STRAWBRIDGE CASES, AS WELL AS THE COMMON LAW PRINCIPLE STATED IN WHARTON ON HOMICIDE, THIS OFFICE IS CONSTRAINED TO ADOPT THE VIEW, UNLESS AND UNTIL THE CONGRESS SHALL OTHERWISE PROVIDE, THAT A PERSON WHO TAKES THE LIFE OF ANOTHER--- WHETHER THE CRIME BE PUNISHED BY THE STATE CONCERNED AS MURDER IN THE FIRST OR SECOND DEGREE--- CANNOT BE PAID THE AMOUNT OF ANY ADJUSTED SERVICE CERTIFICATE WHICH MAY HAVE BEEN ISSUED TO THE MURDERED INDIVIDUAL.