A-51307, OCTOBER 20, 1933, 13 COMP. GEN. 112

A-51307: Oct 20, 1933

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WAS NOT THE DATE OF THE ACT OF MARCH 20. TO WHICH DATE PENSIONS UNDER PRIOR LAWS WERE AUTHORIZED TO CONTINUE. IS AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED AUGUST 11. WAS REPEALED BY THE ACT OF MARCH 20. THE CHECKS REFERRED TO IN YOUR LETTER ARE NOT ASSETS OF THE PENSIONER'S ESTATE AND SHOULD BE CANCELED. THERE IS ATTACHED A COPY OF THE OPINION OF THE SOLICITOR OF THIS ADMINISTRATION RELATIVE TO THE EFFECT OF THE ACT OF MARCH 20. IS AS FOLLOWS: * * * AND THE ISSUE OF A CHECK IN PAYMENT OF A PENSION FOR WHICH THE EXECUTION AND SUBMISSION OF A VOUCHER WAS NOT REQUIRED SHALL CONSTITUTE PAYMENT IN THE EVENT OF THE DEATH OF THE PENSIONER ON OR AFTER THE LAST DAY OF THE PERIOD COVERED BY SUCH CHECK.

A-51307, OCTOBER 20, 1933, 13 COMP. GEN. 112

PENSION CHECKS THE EFFECTIVE DATE OF THE REPEAL MADE BY SECTION 17, TITLE I, OF THE ACT OF MARCH 20, 1933, 48 STAT. 11, OF THE PROVISIONS OF PRIOR PENSION LAWS TO THE EFFECT THAT THE PROCEEDS OF A PENSION CHECK WOULD CONSTITUTE ASSETS OF THE ESTATE OF THE PENSIONER IF DEATH OCCURRED ON OR AFTER THE LAST DATE COVERED BY THE CHECK, WAS NOT THE DATE OF THE ACT OF MARCH 20, 1933, BUT JUNE 30, 1933, TO WHICH DATE PENSIONS UNDER PRIOR LAWS WERE AUTHORIZED TO CONTINUE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, OCTOBER 20, 1933:

THERE HAS BEEN FILED IN THIS OFFICE THE CLAIM OF JOSEPH WICKS, SPECIAL ADMINISTRATOR OF THE ESTATE OF HENRY G. CASKEY, DECEASED, FOR PROCEEDS OF PENSION CHECKS NO. 10839772, DRAWN MARCH 4, 1933, AND NO. 11659785, DRAWN MAY 4, 1933, FOR $60 EACH, BY J. B. SCHOMMER, SYMBOL 11-532, IN FAVOR OF HENRY G. CASKEY, S.C. 1673682, WHO DIED MAY 11, 1933.

THE ADMINISTRATIVE REPORT IN THE CASE UNDER DATE OF SEPTEMBER 1, 1933 (DAH-AF), BY THE DIRECTOR OF FINANCE, VETERANS' ADMINISTRATION, IS AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED AUGUST 11, 1933, RELATIVE TO CHECKS NO. 10839772 DRAWN MARCH 4, 1933, AND NO. 11659785 DRAWN MAY 4, 1933, FOR $60 EACH, BY J. B. SCHOMMER, SYMBOL NO. 11-532, IN FAVOR OF THE ABOVE CITED SPANISH-AMERICAN WAR VETERAN WHO SERVED AS A TRUMPETER, TROOP B, 3D U.S.VOL.CAV., AND WHO DIED ON MAY 11, 1933.

THE ACT OF MAY 1, 1926, WHICH PROVIDED THAT A CHECK SHALL BECOME AN ASSET OF THE ESTATE OF A DECEASED PENSIONER IN THE EVENT OF THE DEATH OF THE PENSIONER ON OR AFTER THE LAST DAY OF THE PERIOD COVERED THEREBY, WAS REPEALED BY THE ACT OF MARCH 20, 1933. AS THIS PENSIONER DIED AFTER MARCH 20, 1933, THE CHECKS REFERRED TO IN YOUR LETTER ARE NOT ASSETS OF THE PENSIONER'S ESTATE AND SHOULD BE CANCELED.

THERE IS ATTACHED A COPY OF THE OPINION OF THE SOLICITOR OF THIS ADMINISTRATION RELATIVE TO THE EFFECT OF THE ACT OF MARCH 20, 1933, UPON CHECKS INVOLVING SERVICE DURING THE SPANISH-AMERICAN WAR AND SUBSEQUENT THERETO.

THE PROVISION IN QUESTION IN THE PRIOR PENSION LAW OF MAY 1, 1926, 44 STAT. 383, IS AS FOLLOWS:

* * * AND THE ISSUE OF A CHECK IN PAYMENT OF A PENSION FOR WHICH THE EXECUTION AND SUBMISSION OF A VOUCHER WAS NOT REQUIRED SHALL CONSTITUTE PAYMENT IN THE EVENT OF THE DEATH OF THE PENSIONER ON OR AFTER THE LAST DAY OF THE PERIOD COVERED BY SUCH CHECK, AND IT SHALL NOT BE CANCELED, BUT SHALL BECOME AN ASSET OF THE ESTATE OF THE DECEASED PENSIONER.

SECTION 17, TITLE I, OF THE ACT OF MARCH 20, 1933, 48 STAT. 11, PROVIDES, IN PART, AS FOLLOWS:

ALL PUBLIC LAWS GRANTING MEDICAL OR HOSPITAL TREATMENT, DOMICILIARY CARE, COMPENSATION AND OTHER ALLOWANCES, PENSION, DISABILITY ALLOWANCE, OR RETIREMENT PAY TO VETERANS AND THE DEPENDENTS OF VETERANS OF THE SPANISH- AMERICAN WAR, INCLUDING THE BOXER-REBELLION AND THE PHILIPPINE INSURRECTION, AND THE WORLD WAR, OR TO FORMER MEMBERS OF THE MILITARY OR NAVAL SERVICE FOR INJURY OR DISEASE INCURRED OR AGGRAVATED IN THE LINE OF DUTY IN THE MILITARY OR NAVAL SERVICE (EXCEPT SO FAR AS THEY RELATE TO PERSONS WHO SERVED PRIOR TO THE SPANISH-AMERICAN WAR AND TO THE DEPENDENTS OF SUCH PERSONS, AND THE RETIREMENT OF OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, NAVY, MARINE CORPS, OR COAST GUARD) ARE HEREBY REPEALED, AND ALL LAWS GRANTING OR PERTAINING TO YEARLY RENEWABLE TERM INSURANCE ARE HEREBY REPEALED, BUT PAYMENTS IN ACCORDANCE WITH SUCH LAWS SHALL CONTINUE TO THE LAST DAY OF THE THIRD CALENDAR MONTH FOLLOWING THE MONTH DURING WHICH THIS ACT IS ENACTED. THE ADMINISTRATOR OF VETERANS' AFFAIRS UNDER THE GENERAL DIRECTION OF THE PRESIDENT SHALL IMMEDIATELY CAUSE TO BE REVIEWED ALL ALLOWED CLAIMS UNDER THIS ACT, AUTHORIZE PAYMENT OR ALLOWANCE OF BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT COMMENCING WITH THE FIRST DAY OF THE FOURTH CALENDAR MONTH FOLLOWING THE MONTH DURING WHICH THIS ACT IS ENACTED AND NOTWITHSTANDING THE PROVISIONS OF SECTION 9 OF THIS ACT, NO FURTHER CLAIM IN SUCH CASES SHALL BE REQUIRED: * * *

IN AN OPINION OF AUGUST 23, 1933, COPY OF WHICH WAS FORWARDED TO THIS OFFICE WITH THE ADMINISTRATIVE REPORT, THE SOLICITOR OF THE VETERANS' ADMINISTRATION, AFTER QUOTING AND CITING PROVISIONS IN OTHER PRIOR PENSION LAWS SIMILAR TO THE PROVISIONS QUOTED ABOVE FROM THE ACT OF MAY 1, 1926, CONCLUDED AS FOLLOWS:

THEY ARE NOT LAWS "GRANTING PENSIONS" IN THE FULL SENSE OF THE TERM AS USED IN SECTION 17 OF PUBLIC, NO. 2, 73D CONGRESS. THEY ARE, HOWEVER, STATUTES DEFINING A RIGHT IN THE PROCEEDS OF THE PENSION CHECK AFTER ITS ISSUE. (THE ORDINARY RULE IS THAT A CHECK IS NOT PAYMENT, AND THEREFORE NOT REDUCED TO POSSESSION OF THE PENSIONER, UNTIL IT IS COLLECTED BY THE PAYEE.) THEY ARE, HOWEVER, SO CLOSELY RELATED TO THE LAWS GRANTING PENSIONS WHICH WERE REPEALED AS TO PARTAKE OF THEIR NATURE AND GO WITH THEM IN THE REPEAL.

ALL RIGHTS TO WHICH PENSIONERS ARE ENTITLED SUBSEQUENT TO MARCH 20, 1933 (EXCEPT THOSE WHOSE PENSIONS ARE BASED ON SERVICE PRIOR TO THE SPANISH- AMERICAN WAR), ARE ENCOMPASSED BY PUBLIC, NO. 2, AND THE REGULATIONS ISSUED THEREUNDER. THEY DO NOT CONTAIN PROVISIONS LIKE THOSE IN QUESTION AND I AM CONSTRAINED TO THE OPINION THAT THE LATTER HAVE NO EFFECT SUBSEQUENT TO MARCH 20, 1933, EXCEPT IN CASES INVOLVING SERVICE PRIOR TO THE SPANISH-AMERICAN WAR. CHECKS ISSUED TO PENSIONERS WHOSE DEATH OCCURRED PRIOR TO MARCH 20, 1933, ARE NOT AFFECTED BY THE REPEAL.

WHILE THE CONCLUSION OF THE FIRST PARAGRAPH LAST ABOVE QUOTED TO THE EFFECT THAT SECTION 17, TITLE I, OF THE ACT OF MARCH 20, 1933, REPEALED THE PROVISIONS IN PRIOR LAWS GRANTING PENSIONS TO THE VETERANS OF THE SPECIFIED WARS REGARDING THE DISPOSITION OF UNPAID PENSIONS AFTER THE DEATH OF THE PENSIONER WOULD APPEAR TO BE JUSTIFIED, I CANNOT AGREE WITH THE CONCLUSIONS IN THE SECOND PARAGRAPH AS TO THE EFFECTIVE DATE OF REPEAL.

IT IS SPECIFICALLY PROVIDED IN SECTION 17, TITLE I, OF THE ACT OF MARCH 20, 1933, THAT ,PAYMENTS IN ACCORDANCE WITH SUCH LAWS SHALL CONTINUE TO THE LAST DAY OF THE THIRD CALENDAR MONTH FOLLOWING THE MONTH DURING WHICH THIS ACT IS ENACTED," AND FURTHER PROVIDES FOR THE REVIEW OF ALL PENSIONS CLAIMS UNDER THE NEW ACT AND, IF ALLOWED TO COMMENCE "WITH THE FIRST DAY OF THE FOURTH CALENDAR MONTH FOLLOWING THE MONTH DURING WHICH THIS ACT IS ENACTED.' THEREFORE, THE EFFECTIVE DATE OF THE REPEAL OF THE PRIOR LAWS GRANTING PENSIONS TO THE VETERANS OF THE SPECIFIED WARS WAS NOT MARCH 20, 1933, BUT THE LAST DAY ON WHICH THE PENSIONS WERE PAYABLE UNDER THE PRIOR LAWS, VIZ, JUNE 30, 1933. IT WOULD BE UNREASONABLE TO CONCLUDE THAT SECTION 17, TITLE I, OF THE ACT OF MARCH 20, 1933, AUTHORIZED CONTINUANCE OF THE ISSUANCE OF PENSION CHECKS UNDER PRIOR LAWS, BUT THAT ALL THE OTHER PROVISIONS OF THE PRIOR LAWS RELATIVE THERETO WERE REPEALED EFFECTIVE MARCH 20, 1933.

YOU ARE ADVISED, THEREFORE, THAT THE PROCEEDS OF ANY PENSION CHECK ISSUED ON OR PRIOR TO JUNE 30, 1933, UNDER THE ACT OF MAY 1, 1926, SUPRA, OR OTHER PRIOR LAWS GRANTING PENSIONS TO THE VETERANS OF THE SPECIFIED WARS, CONTAINING A PROVISION SIMILAR TO THE ONE HERE UNDER CONSIDERATION, WHICH WERE REPEALED UNDER THE ACT OF MARCH 20, 1933, CONSTITUTE AN ASSET OF THE ESTATE OF THE PENSIONER IF DEATH OCCURRED, EITHER PRIOR OR SUBSEQUENT TO JUNE 30, 1933, BUT ON OR AFTER THE LAST DATE OF THE PERIOD COVERED BY SUCH CHECK, WHICH PERIOD EXPIRED ON OR PRIOR TO JUNE 30, 1933. IN OTHER WORDS, IF A PENSION CHECK WAS ISSUED PURSUANT TO A PRIOR PENSION LAW CONTAINING A PROVISION SIMILAR TO THE ONE HERE UNDER CONSIDERATION WHICH WAS REPEALED BY THE ACT OF MARCH 20, 1933, COVERING PENSION FOR A PERIOD EXPIRING ON OR PRIOR TO JUNE 30, 1933, AND DEATH OF THE PENSIONER OCCURRED ON OR AFTER THE LAST DATE OF THE PERIOD COVERED BY THE CHECK EITHER PRIOR OR SUBSEQUENT TO JUNE 30, 1933, THE PROCEEDS CONSTITUTE AN ASSET OF THE ESTATE OF THE PENSIONER.

ACCORDINGLY, PAYMENT OF THE TWO PENSION CHECKS ABOVE DESCRIBED WILL BE AUTHORIZED BY THIS OFFICE ON THE ENDORSEMENT OF JOSEPH WICKS AS SPECIAL ADMINISTRATOR OF THE ESTATE OF HENRY G. CASKEY, DECEASED.