A-57649, OCTOBER 23, 1934, 14 COMP. GEN. 328

A-57649: Oct 23, 1934

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO MAKE A POST-MORTEM LEGAL FINDING AS TO TESTAMENTARY CAPACITY OR COMPETENCY OF A VETERAN AS OF THE DATE OF A PURPORTED DESIGNATION OF BENEFICIARY OF AN ADJUSTED SERVICE CERTIFICATE IN ANY CASE IN WHICH PAYMENT TO A DESIGNATED BENEFICIARY IS CONTESTED ON THE GROUND THAT THE VETERAN WAS NOT COMPETENT TO DESIGNATE A BENEFICIARY. SUCH ACTION MAY NOT BE ARBITRARY OR CAPRICIOUS AND MUST BE BASED ON EVIDENCE OTHER THAN THAT BEFORE THE VETERANS' ADMINISTRATION WHEN THE DESIGNATION OR CHANGE OF BENEFICIARY WAS ORIGINALLY APPROVED AND THE COMPARATIVE EQUITIES IN FAVOR OF THE CONTESTING CLAIMANTS ARE NOT FOR CONSIDERATION. 11 COMP. THERE IS NO AUTHORITY UNDER THE QUOTED PROVISION. NOW BEFORE ME FOR DETERMINATION FOR THE REASON THAT THERE IS INVOLVED IN THE MCCARTT CASE THE QUESTION OF DETERMINING.

A-57649, OCTOBER 23, 1934, 14 COMP. GEN. 328

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - CHANGE OF BENEFICIARY THE ADMINISTRATOR OF VETERANS' AFFAIRS HAS AUTHORITY UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT, TO MAKE A POST-MORTEM LEGAL FINDING AS TO TESTAMENTARY CAPACITY OR COMPETENCY OF A VETERAN AS OF THE DATE OF A PURPORTED DESIGNATION OF BENEFICIARY OF AN ADJUSTED SERVICE CERTIFICATE IN ANY CASE IN WHICH PAYMENT TO A DESIGNATED BENEFICIARY IS CONTESTED ON THE GROUND THAT THE VETERAN WAS NOT COMPETENT TO DESIGNATE A BENEFICIARY. SUCH ACTION MAY NOT BE ARBITRARY OR CAPRICIOUS AND MUST BE BASED ON EVIDENCE OTHER THAN THAT BEFORE THE VETERANS' ADMINISTRATION WHEN THE DESIGNATION OR CHANGE OF BENEFICIARY WAS ORIGINALLY APPROVED AND THE COMPARATIVE EQUITIES IN FAVOR OF THE CONTESTING CLAIMANTS ARE NOT FOR CONSIDERATION. 11 COMP. GEN. 33, AMPLIFIED.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, OCTOBER 23, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 10, 1934, AS FOLLOWS:

ON JULY 24, 1931, YOU ADDRESSED TO ME A DECISION, YOUR IDENTIFICATION NUMBER A-37515, BASED UPON THE WORLD WAR ADJUSTED COMPENSATION CASE OF RANDOLPH COCKRELL, A-3,299,096, XC-1,426,068, IN WHICH YOU STATED:

"SECTION 501 OF THE WORLD WAR ADJUSTED COMPENSATION ACT OF MAY 19, 1924, 43 STAT. 125, PROVIDES 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. * * *"

SEE, ALSO, SECTION 508 TO THE SAME EFFECT ADDED TO THE STATUTE BY THE AMENDATORY ACT OF MAY 29, 1928, 45 STAT. 948.

"WHATEVER AUTHORITY THERE EXISTS FOR RETROACTIVE MEDICAL RATINGS OF INCOMPETENCY UNDER THE TERMS OF THE WORLD WAR VETERANS' ACT FOR THE PURPOSES OF COMPENSATION OR INSURANCE, THERE IS NO AUTHORITY UNDER THE QUOTED PROVISION, OR ANY OTHER PROVISION OF THE WORLD WAR ADJUSTED COMPENSATION ACT, OR ANY OTHER STATUTE, VESTING IN THE DIRECTOR OF THE VETERANS' BUREAU, OR HIS SUCCESSOR, THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUTHORITY TO MAKE A POST MORTEM LEGAL FINDING OF INCOMPETENCY OF A VETERAN SO AS TO INVALIDATE A CHANGE OF BENEFICIARY OF AN ADJUSTED SERVICE CERTIFICATE WHICH HAD BEEN APPROVED BY THE DIRECTOR OVER TWO YEARS PRIOR TO THE DEATH OF THE VETERAN, PARTICULARLY IN A CASE SUCH AS THIS WHERE A DECREE OF COURT HAD DETERMINED THE COMPETENCY OF THE VETERAN JUST PRIOR TO THE TIME HE MADE THE CHANGE OF BENEFICIARY.'

I DESIRE TO ASK YOUR ATTENTION AT THIS TIME TO THE CASE OF JOHN R. MCCARTT, XC-1,423,818, NOW BEFORE ME FOR DETERMINATION FOR THE REASON THAT THERE IS INVOLVED IN THE MCCARTT CASE THE QUESTION OF DETERMINING, UPON THE EVIDENCE WHICH IS NOW IN THE FILE, WHETHER THE DECEASED VETERAN'S CONDITION AT THE TIME OF MAKING THE ORIGINAL DESIGNATION OF BENEFICIARY FOR THE BENEFITS OF WORLD WAR ADJUSTED COMPENSATION WAS SUCH THAT HE MAY BE SAID THEN TO HAVE POSSESSED TESTAMENTARY CAPACITY, THAT IS, IN GENERAL TERMS, TO HAVE HAD SUFFICIENT MENTALITY AT THE DATE IN QUESTION TO HAVE UNDERSTOOD THE NATURE OF HIS ACT AND THE PROBABLE CONSEQUENCES THEREOF.

IT APPEARS THAT THIS VETERAN ON AUGUST 19, 1927, EXECUTED AN APPLICATION FOR WORLD WAR ADJUSTED COMPENSATION, THE DESIGNATED BENEFICIARY BEING THE VETERANS' WIFE. IN NOVEMBER 1930 THE VETERAN'S GUARDIAN, WHO HAD APPOINTED IN FEBRUARY 1930, ATTEMPTED TO CHANGE THE BENEFICIARY TO THE VETERAN'S TWO CHILDREN, LOIS FRANCES AND FLORA ROSE MCCARTT, WHICH REQUEST FOR CHANGE OF BENEFICIARY WAS DISAPPROVED. THE VETERAN DIED ON AUGUST 28, 1933, FROM GENERAL PARALYSIS OF THE INSANE.

AFTER THE DEATH OF THE VETERAN, HIS FATHER, AND HIS GUARDIAN, PROTESTED THE PAYMENT OF THE ADJUSTED-SERVICE BENEFITS TO FANNIE MCCARTT, THE BENEFICIARY OF RECORD, ON THE GROUND THAT THE VETERAN LACKED TESTAMENTARY CAPACITY WHEN HE NAMED HER BENEFICIARY. REPRESENTATIVE EUGENE B. CROWE, WHO IS INTERESTED ON BEHALF OF THE VETERAN'S CHILDREN, WHO ARE SAID TO BE IN NECESSITOUS CIRCUMSTANCES, HAS FILED NUMEROUS AFFIDAVITS IN SUPPORT OF THE GUARDIAN'S CONTENTION THAT THE VETERAN DID NOT POSSESS TESTAMENTARY CAPACITY AT THE TIME OF THE DESIGNATION OF THE WIFE. WHILE MANY OF THESE AFFIDAVITS ARE FROM LAYMEN AND OFFICIALS OF THE TOWN IN WHICH THE VETERAN FORMERLY LIVED, THERE IS ALSO CONSIDERABLE MEDICAL EVIDENCE, TOGETHER WITH A PETITION SIGNED BY MEMBERS OF AN AMERICAN LEGION POST, SETTING OUT THAT THE VETERAN'S WIFE WAS DIVORCED, REMARRIED, HAD BEEN CONVICTED OF SERIOUS CHARGES AND GIVEN A SENTENCE OF FROM TWO TO FOURTEEN YEARS; THAT SHE WAS PAROLED, VIOLATED THE PAROLE, AND IS NOW A FUGITIVE FROM JUSTICE, LEAVING HER TWO CHILDREN IN A PITIABLE CONDITION. A SIMILAR PETITION WAS FILED BY SEVERAL MEMBERS OF THE LOCAL CHAPTER OF THE AMERICAN WAR MOTHERS.

WITHOUT RESTATING IN DETAIL ALL OF THE AFFIDAVITS WHICH HAVE BEEN FILED IN THE CASE AS TO THE VETERAN'S MENTAL CONDITION WHEN HE DESIGNATED THE WIFE AS BENEFICIARY, I WOULD SAY THAT UPON REFERENCE TO THE ACTING MEDICAL DIRECTOR OF THE VETERANS' ADMINISTRATION, THE LATTER OFFICIAL HAS FORMULATED THE FOLLOWING SUMMARY AND OPINION:

"RESPECTFULLY RETURNED. THIS IS A CASE FOR OPINION AS TO THE TESTAMENTARY CAPACITY OF THE ABOVE-CAPTIONED CLAIMANT AS OF AUGUST 19 AND AUGUST 22, 1927, AND SUBSEQUENTLY. THE CLAIMANT IS NOW DEAD.

"THE OUTSTANDING FACTS IN THE CASE ARE THAT UNDER DATE OF JULY 22, 1929, THE MAN WAS EXAMINED AT THE NATIONAL SOLDIERS HOME, DAYTON, OHIO,AND A DIAGNOSIS GIVEN OF SYPHILIS, CENTRAL NERVOUS SYSTEM. THE REPORT STATES IN PART: "KNEE JERKS SLUGGISH, ARGYL ROBERTSON PUPILS AND ROMBERG POSITIVE.' THE MAN WAS EXAMINED BY A DOCTOR WYNNE, PENSION EXAMINER AT BEDFORD, IND., WHO GAVE A DIAGNOSIS OF GENERAL PARESIS. THERE IS A REPORT IN THE FILE FROM THE MADISON STATE HOSPITAL, MADISON, IND., MADE BY A DOCTOR MOORE OF THAT INSTITUTION UNDER DATE OF MAY 11, 1931. DOCTOR MOORE GAVE THE DIAGNOSIS OF GENERAL PARALYSIS OF THE INSANE WITH MENTAL DILAPIDATION AND INTELLECTUAL DETERIORATION. IN THE EXAMINATION REPORT HE STATES THAT THIS IS THE MAN'S SECOND COMMITMENT. THE MAN'S FIRST COMMITMENT IN THIS STATE HOSPITAL WAS UNDER DATE OF NOVEMBER 1929 AS MADE IN THE STATEMENT OF DOCTOR J. C. DUSARD IN A LETTER IN THE FILE DATED OCTOBER 5, 1931. UNDER THE SECOND COMMITMENT THE FILE SHOWS THAT THE FATHER OF THE MAN WAS VERY ANXIOUS TO HAVE THE MAN HOSPITALIZED IN A VETERANS' ADMINISTRATION HOSPITAL AND HE WAS SO HOSPITALIZED AT THE VETERANS' ADMINISTRATION FACILITY, CAMP CUSTER, MICH. THERE IS AN EXAMINATION REPORT IN THE FILE FROM THAT FACILITY MADE BY DOCTOR SALISBURY, WHICH SHOWS THE MAN WAS ADMITTED TO THAT HOSPITAL OCTOBER 26, 1931. THE HISTORY OF THE ONSET AS OBTAINED BY DOCTOR SALISBURY STATES IN PART AS FOLLOWS: ,PATIENT STATES THAT IN 1926 HE HAD THE "FLU" FOLLOWED BY A "NERVOUS BREAKDOWN.'" HE WENT TO THE SOLDIERS' HOME IN DAYTON, WHERE THEY TOLD HIM HE HAD SYPHILIS * * *. IN THE LATTER PART OF 1927 HE BECAME "WILD AND INSANE," HEARD VOICES, STATED THAT PEOPLE WERE ATTEMPTING TO POISON HIM, REFUSED TO EAT HIS FOOD AND HAD THE DELUSION THAT PEOPLE WERE PERSECUTING HIM, TALKING ABOUT HIM AND FOLLOWING HIM. HE WAS ADMITTED TO THE MADISON INDIANA STATE HOSPITAL WHERE HE WAS TREATED FOR THREE YEARS "OFF AND ON.'

"IT IS, HOWEVER, WELL KNOWN THAT CASES OF PARESIS ARE NOT WELL ORIENTED AS TO TIME, ESPECIALLY IN MEMORY OF PAST EVENTS. THERE IS NO RECORD IN THE FILE TO SHOW WHEN THIS MAN WAS AT THE MADISON STATE HOSPITAL THE FIRST TIME, EXCEPT THE STATEMENT OF DOCTOR DUSARD AS QUOTED ABOVE.

"THE AFFIDAVIT STATEMENTS MUST BE CONSIDERED IN AN ATTEMPT TO ARRIVE AT A CONCLUSION AS TO THE MAN'S MENTAL CONDITION IN AUGUST 1927. THERE ARE NUMEROUS AFFIDAVITS IN THE FILE BEARING UPON THIS QUESTION. THERE ARE AFFIDAVITS OF ALFRED E. UNDERWOOD AND JOHN A. MCVEY, TWO MEN WHO WERE EMPLOYED WITH THIS CLAIMANT PREVIOUS TO THE DATES OF THE MEDICAL EXAMINATIONS REFERRED TO ABOVE. THE AFFIDAVIT OF MR. UNDERWOOD STATES IN PART: "HAVE KNOWN THE SAID JOHN R. MCCARTT FOR THE LAST TWENTY YEARS AND WORKED WITH HIM AT THE SHEA MILL IN BEDFORD, IND., DURING THE YEARS 1923 AND 1929, * * * THAT DURING SUCH PERIOD THE SAID JOHN R. MCCARTT WAS EXCEPTIONALLY NERVOUS AND HAD SPELLS ON THE AVERAGE OF ONE EACH DAY, DURING WHICH HE COULD NOT TALK, WOULD WAVE HIS HANDS AROUND AS IF TRYING TO TALK, WOULD LAY DOWN ON THE GROUND BEHIND HIS PLANER, WOULD HANDLE AND OPERATE HIS PLANER IN THE WRONG WAY, * * * AND HE WOULD HAVE TO BE TAKEN HOME BY HIS FELLOW WORKMEN * * *. IT IS MY OPINION THAT DURING THE PERIOD FROM 1922 TO 1929, THE SAID JOHN R. MCCARTT WAS MENTALLY UNBALANCED.' THE STATEMENT OF MR. MCVEY IS TO THE SAME EFFECT. THERE IS ALSO A STATEMENT FROM KENNETH MITCHELL, WHO WORKED WITH HIM AT THE SAME PLACE, TO THE SAME EFFECT. THERE IS A STATEMENT FROM TOM DIXON, A MEMBER OF THE FIRE DEPARTMENT OF THE CITY OF BEDFORD. THE GIST OF HIS STATEMENT IS TO THE EFFECT THAT THE FIRE STATION JOINS THE POLICE STATION AND FROM HIS KNOWLEDGE MCCARTT WAS CONTINUALLY IN TROUBLE WITH THE CIVIL OFFICERS AND THAT HE BELIEVED HIM TO BE OF UNSOUND MIND IN 1927. THERE IS A STATEMENT FROM JOHN SCHADE, OWNER AND OPERATOR OF A RESTAURANT IN BEDFORD, WHICH STATES THAT HE HAD KNOWN THIS MAN FOR THE LAST TEN YEARS AND IN HIS OPINION DURING THAT TIME HE WAS OF UNSOUND MIND AND UNBALANCED AND WAS NOT CAPABLE OF CONDUCTING HIS OWN BUSINESS. THERE IS A STATEMENT FROM A NANCY FERRIS, A DOMESTIC IN THE HOME OF THE FATHER AND MOTHER OF THIS MAN, TO THE EFFECT THAT IN HER OPINION FOR THE LAST EIGHT YEARS THIS MAN HAS BEEN UNBALANCED. THERE IS A STATEMENT FROM THE JANITOR OF THE CITY HALL IN BEDFORD TO ESSENTIALLY THE SAME EFFECT. THERE IS A STATEMENT FROM HENRY LOVE OF BEDFORD TO THE EFFECT THAT HE HAD KNOWN MCCARTT FOR THE PAST FIFTEEN YEARS, THAT MCCARTT AND HIS WIFE LIVED IN THE SAME HOUSE WITH HIM IN 1925 AND THAT IN HIS OPINION MCCARTT WAS MENTALLY UNBALANCED AT THAT TIME AND THAT HIS MENTAL CONDITION WAS VERY NOTICEABLE. STATEMENT BY A GEORGE SUMMERS TO THE EFFECT THAT MCCARTT AND HIS WIFE LIVED IN HIS APARTMENT IN 1926 AND THAT IN HIS OPINION AT THAT TIME MCCARTT WAS MENTALLY UNBALANCED. THERE IS A STATEMENT IN THE FILE FROM HENRY S. MURRAY, MAYOR OF THE CITY OF BEDFORD DATED NOVEMBER 10, 1933, THE GIST OF WHICH IS TO THE EFFECT THAT HE SAW AND TALKED WITH MCCARTT SEVERAL TIMES DURING THE PERIOD FROM 1926 TO 1930 AND NOTICED HIS ACTION AND THAT HE FELT THAT HIS MIND WAS NOT RIGHT IN THAT PERIOD. THERE IS A STATEMENT FROM THE EX-MAYOR OF BEDFORD, CHARLES H. ALLEN, IN THE FILE TO THE EFFECT THAT IN HIS OPINION MCCARTT WAS MENTALLY UNBALANCED IN THE YEAR 1927. THERE IS A STATEMENT FROM JOHN PEYTON, A POLICE OFFICER OF THE CITY OF BEDFORD, TO THE SAME GENERAL EFFECT. STATEMENT FROM DOCTOR MORRELL SIMPSON TO THE EFFECT THAT MCCARTT WAS A PATIENT UNDER HIS CARE FROM DECEMBER 17, 1928, TO NOVEMBER 25, 1929, WHEN HE BECAME VIOLENTLY INSANE. THE PHYSICIAN STATES THAT DURING THIS PERIOD HE WAS TREATING HIM FOR SYPHILIS. STATEMENT FROM DOCTOR JOSEPH C. DUSARD OF BEDFORD, WHO WAS APPARENTLY THE PHYSICIAN WHO WAS CALLED IN WHEN THE MAN HAD HIS VIOLENT OUTBREAK IN NOVEMBER 1929, LEADING TO HIS HOSPITALIZATION IN THE STATE HOSPITAL. HE STATES THAT MCCARTT WAS INSANE FOR SEVERAL YEARS PRIOR TO HIS COMMITMENT TO THE STATE HOSPITAL. THERE IS A STATEMENT FROM A DOCTOR L. HOWARD ALLEN OF BEDFORD TO THE EFFECT THAT HE HAD KNOWN THIS MAN PERSONALLY FOR THE PAST TWENTY YEARS AND THAT HE HAS KNOWN HIM TO BE A CONSTANT SOURCE OF TROUBLE TO THE LOCAL CIVIL AUTHORITIES, BUT BECAUSE OF HIS MENTAL CONDITION HIS VIOLATIONS OF LAW WERE PERMITTED TO GO UNPUNISHED. THIS PHYSICIAN STATES THAT IN HIS OPINION THE MAN WAS MENTALLY UNFIT TO TRANSACT BUSINESS OF ANY NATURE, OR TO SIGN LEGAL DOCUMENTS OR ANY OTHER PAPERS OR THINGS CONNECTED WITH THE PROPER TRANSACTION OF BUSINESS AND THAT HE HAS GOOD CAUSE TO BELIEVE THAT MCCARTT WAS SO MENTALLY UNFIT FOR A PERIOD OF TWO OR THREE YEARS PRIOR TO HIS CONFINEMENT TO THE INSANE HOSPITAL. STATEMENT FROM JOHN GOLDSBY, JUSTICE OF THE PEACE, TO THE EFFECT THAT HE WAS A HIGH OFFICIAL IN THE LOYAL ORDER OF MOOSE AND MCCARTT MADE APPLICATION TO BECOME A MEMBER OF THAT ORGANIZATION AND THAT HE WAS TURNED DOWN BECAUSE OF WEAKNESS OF HIS MIND. THIS OCCURRED IN 1926. STATEMENT FROM KENNETH S. KEACH, COMMANDER OF THE VETERANS OF FOREIGN WARS POST IN BEDFORD TO THE EFFECT THAT MCCARTT ENDEAVORED TO JOIN THAT POST IN 1927 BUT DUE TO HIS INABILITY TO CARRY ON A COHERENT CONVERSATION HE WAS NOT BELIEVED TO BE OF SOUND MIND. STATEMENT FROM THE SHERIFF OF LAWRENCE COUNTY, IND., THE GIST OF WHICH IS THAT IN THE YEAR 1926 HE FELT FROM THE ACTIONS OF THIS MAN HE WAS A PERSON OF UNSOUND MIND. THERE ARE OTHER STATEMENTS IN THE FILE FROM ANOTHER EX- MAYOR OF THE CITY, JUDGE OF THE CITY COURT, ANOTHER MEMBER OF THE POLICE FORCE, CHIEF OF THE POLICE, AND A MR. JAMES MCGILL, AN EMPLOYER OF MCCARTT. THERE ARE MANY OTHER AFFIDAVITS IN THE FILE TO THE SAME GENERAL EFFECT TO WIT: THAT THIS MAN WAS SHOWING EVIDENCE OF MENTAL UNBALANCE IN THE PERIOD FROM THE YEAR 1926 TO 1929 WHEN HE WAS HOSPITALIZED IN A STATE HOSPITAL AS INSANE.

"IT IS A WELL-KNOWN FACT THAT PATIENTS SUFFERING WITH PARESIS OR TABOPARESIS IN A GREAT MANY CASES EXHIBIT EVIDENCES OF MENTAL ABERRATION AND UNSOUNDNESS OF MIND, EVIDENCED BY LACK OF JUDGMENT AND PECULIAR AND IRRESPONSIBLE BEHAVIOR FOR CONSIDERABLE PERIODS OF TIME BEFORE SOME OVERT ACT BRINGS THEM IN CONFLICT WITH THE COMMUNITY, MAKING IT NECESSARY FOR THE COMMUNITY TO HOSPITALIZE THEM FOR FURTHER CARE. ALL OF THE EVIDENCE IN THE FILE TENDS TO SHOW THAT SUCH WAS THE CASE IN THIS CASE.

"FROM ALL OF THE EVIDENCE AT THE PRESENT TIME IN THIS FILE, IT IS THE OPINION OF THE MEDICAL AND HOSPITAL SERVICE THAT JOHN R. MCCARTT DURING THE YEAR 1927 WAS SUFFERING WITH AND WAS SHOWING EVIDENCE OF GENERAL PARALYSIS OF THE INSANE OR PARESIS, CHARACTERIZED BY MANY IRRATIONAL ACTS AND EVIDENCE OF MENTAL ABERRATION. FROM THE STANDPOINT OF THE COURTS IT HAS BEEN OFTEN DECIDED THAT A MAN SUFFERING WITH PARESIS DOES NOT HAVE TESTAMENTARY CAPACITY. ACCORDINGLY, IT IS THE OPINION OF THE MEDICAL AND HOSPITAL SERVICE THAT JOHN R. MCCARTT DID NOT HAVE TESTAMENTARY CAPACITY BECAUSE OF HIS MENTAL CONDITION IN THE YEAR 1927 AND FROM THAT PERIOD ON UNTIL HIS DEATH.' IN VIEW OF THE CONCLUSION THAT THIS VETERAN'S MENTALITY IN 1927 WAS SUCH THAT HE DID NOT THEN HAVE A CLEAR UNDERSTANDING OF WHAT HE WAS DOING OR OF THE NORMAL CONSEQUENCES OF HIS ACTIONS, I DESIRE TO HOLD THAT ON THE DATE OF THE DESIGNATION OF THE WIFE AS BENEFICIARY THE VETERAN DID NOT HAVE TESTAMENTARY CAPACITY, THEREBY IN EFFECT RENDERING HER DESIGNATION INVALID AND CLEARING THE WAY FOR THE PAYMENT OF THE BENEFITS IN QUESTION TO THE VETERANS' ESTATE, HE HAVING DIED AUGUST 28, 1933, WHICH PAYMENT WILL REDOUND TO THE BENEFIT OF HIS MINOR CHILDREN, AS TO WHOSE PRESENT NEED THERE IS NO DOUBT.

I WOULD ALSO ASK ATTENTION TO THE FACT THAT IN MANY CASES OF THIS GENERAL TYPE THE VETERANS' ADMINISTRATION AT THE TIME OF THE RECEIPT OF THE CHANGE OF BENEFICIARY LATER DISPUTED, HAS LITTLE OR NO EVIDENCE BEFORE IT AS TO THE VETERAN'S MENTAL CONDITION. IN THE ABSENCE OF SUCH EVIDENCE, ASSUMING THE REGULARITY OF THE CHANGE AS TO FORMAL REQUIREMENTS, THERE WOULD BE NO REASON FOR QUESTIONING ITS VALIDITY. THEN, AFTER THE VETERAN'S DEATH, WHEN NOTICE IS GIVEN OF THE INTENTION TO PAY THE BENEFITS UNDER THE CHANGE, IT FREQUENTLY HAPPENS THAT THE PARTIES ADVERSELY AFFECTED THEREBY RAISE FOR THE FIRST TIME THE NONEXISTENCE OF TESTAMENTARY CAPACITY, AND IN SUPPORT OF THEIR CLAIM FOR THE RECOGNITION OF THE ORIGINAL BENEFICIARY FILE POST-MORTEM EVIDENCE, LAY, MEDICAL, OR BOTH, AS TO THE VETERAN'S MENTAL STATE AT THE TIME OF THE DISPUTED CHANGE. IT IS IN CONNECTION WITH CASES OF THIS LATTER TYPE AS WELL AS IN THOSE MORE PARTICULARLY FALLING WITHIN THE FACTS OF THE MCCARTT CASE NOW SUBMITTED THAT I WOULD REQUEST YOUR FURTHER CONSIDERATION OF THIS QUESTION AND WOULD ALSO SUGGEST THE ADVISABILITY OF A POSSIBLE LIMITATION OF YOUR COCKRELL DECISION IN THE LIGHT OF THE PRESENT PROBLEMS.

YOUR COMMENT IN THE LIGHT OF YOUR DECISION CITED AT THE BEGINNING OF THIS SUBMISSION IS REQUESTED.

THIS OFFICE HAS EXAMINED THE COMPLETE FILE IN THE CASE. THE EVIDENCE STATED IN YOUR LETTER APPEARED TO BE ONLY THAT PRESENTED IN SUPPORT OF THE CLAIM OF THE PARENTS OF THE VETERAN, WHO ARE ALSO THE ADOPTED PARENTS AND GUARDIANS OF THE VETERAN'S CHILDREN, AND NOTHING APPEARED IN SUPPORT OF THE CLAIM OF THE FORMER WIFE OF THE VETERAN, THE DESIGNATED BENEFICIARY.

THE FILE SHOWS THAT THE VETERAN, JOHN R. MCCARTT, EXECUTED AN APPLICATION FOR ADJUSTED COMPENSATION ON AUGUST 19, 1927, AND DESIGNATED THEREIN HIS WIFE, FANNIE MCCARTT, AS BENEFICIARY OF HIS ADJUSTED SERVICE CERTIFICATE. THE APPLICATION WAS FILED ON AUGUST 22, 1927, AND IN DUE COURSE THE VETERAN WAS ISSUED AN ADJUSTED SERVICE CERTIFICATE WITH A FACE VALUE OF $1,323, ON WHICH LOANS TOTALING 50 PERCENTUM OF THE FACE VALUE OF THE CERTIFICATE WERE PROCURED, ONE BY THE VETERAN HIMSELF ON AUGUST 8, 1930, AND THE OTHER FOR $494.81 BY THE VETERAN'S GUARDIAN ON AUGUST 19, 1931. THE VETERAN DIED ON AUGUST 28, 1933, LEAVING HIM SURVIVING TWO CHILDREN, LOIS FRANCES AND FLORA ROSE MCCARTT. CLAIM FOR THE BALANCE DUE ON THE CERTIFICATE WAS FILED BY THE VETERAN'S DIVORCED WIFE, FANNIE MCCARTT, AS THE DESIGNATED BENEFICIARY. THE VETERAN'S FATHER, HENRY W. MCCARTT, PROTESTED PAYMENT OF THE ADJUSTED SERVICE CERTIFICATE TO THE VETERAN'S FORMER WIFE, FANNIE MCCARTT, ON THE GROUND THAT THE VETERAN LACKED TESTAMENTARY CAPACITY TO NAME A BENEFICIARY IN AUGUST 1927 WHEN HE APPLIED FOR ADJUSTED COMPENSATION. THE SUBMISSION STATES IN SUBSTANCE THE EVIDENCE SUBMITTED BY THE VETERAN'S FATHER TO ESTABLISH HIS CONTENTION. THE DESIGNATED BENEFICIARY HAS SUBMITTED A NUMBER OF AFFIDAVITS BY VARIOUS PERSONS WHO KNEW THE VETERAN, SOME OF WHOM WERE HIS FELLOW WORKMEN DURING THE YEARS 1926, 1927, 1928, AND PART OF 1929, WHICH AFFIDAVITS SHOW THAT THE VETERAN WAS A STONE PLANERMAN BY TRADE; THAT HE WORKED AT HIS TRADE REGULARLY DURING THE PERIOD 1926, 1927, 1928, AND PART OF 1929; THAT HE EARNED $1 PER HOUR DURING HIS EMPLOYMENT; THAT IN 1927 HE BUILT A STONE HOUSE IN BEDFORD, IND., LAYING THE STONE IN THE WALLS HIMSELF. THE FILE FURTHER INDICATES THAT THE VETERAN WAS LIVING WITH HIS WIFE, FANNIE MCCARTT, AND CHILDREN, AT THE TIME HE EXECUTED THE APPLICATION IN WHICH SHE WAS NAMED AS BENEFICIARY AT WHICH TIME HIS YOUNGEST CHILD WAS ABOUT 1 MONTH OLD, AND THAT HE AND HIS WIFE CONTINUED TO LIVE TOGETHER UNTIL SOME TIME IN 1929, WHEN THE VETERAN DEEDED THE STONE HOUSE REFERRED TO ABOVE TO HIS MOTHER, WHICH ACTION LED TO THE SEPARATION BETWEEN HIM AND HIS WIFE AND LATER THEIR DIVORCE. ALSO, THERE ARE AFFIDAVITS OF THE FAMILY PHYSICIANS THAT THE VETERAN WAS OF SOUND MIND IN 1927 AND 1928. APPEARS THAT THE VETERAN HAD A BAD BREAK IN HIS MENTAL CONDITION DURING THE LATTER PART OF 1929, AND WAS INCARCERATED IN A HOSPITAL FOR THE INSANE; THAT THE VETERAN'S FATHER, HENRY W. MCCARTT, WAS APPOINTED AS THE VETERAN'S GUARDIAN ON FEBRUARY 11, 1930, AND ON NOVEMBER 19, 1930, HE, AS GUARDIAN, EXECUTED A CHANGE OF BENEFICIARY, FORM 6912, IN FAVOR OF THE VETERAN'S CHILDREN. INASMUCH AS SECTION 501 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, 43 STAT. 125, PROVIDES THAT THE VETERAN SHALL NAME THE BENEFICIARY OF THE ADJUSTED SERVICE CERTIFICATE, THIS REQUEST FOR CHANGE OF BENEFICIARY OF THE CERTIFICATE WAS DISAPPROVED BY THE VETERANS' ADMINISTRATION.

THIS OFFICE DID NOT INTEND TO HOLD IN THE DECISION OF JULY 24, 1931, 11 COMP. GEN. 33, QUOTED IN YOUR LETTER, THAT THE VETERANS' ADMINISTRATION HAD NO AUTHORITY IN ANY CASE TO MAKE A POST-MORTEM DETERMINATION AS TO THE MENTAL OR TESTAMENTARY CAPACITY OF A VETERAN WHEN DESIGNATING A BENEFICIARY FOR HIS ADJUSTED SERVICE CERTIFICATES. IN THAT CASE THERE HAD BEEN A DECREE OF COURT OF COMPETENCY IMMEDIATELY PRIOR TO THE CHANGE OF BENEFICIARY, AND THE VETERANS' ADMINISTRATION SOUGHT TO SET ASIDE THE COURT DECREE BY A MEDICAL FINDING OF INCOMPETENCY AFTER THE DEATH OF THE VETERAN. DETERMINATION OF THE DESIGNATED BENEFICIARY OR OTHER PERSON ENTITLED TO A VETERAN'S ADJUSTED SERVICE CERTIFICATE UNDER THE TERMS OF THE WORLD WAR ADJUSTED COMPENSATION ACT HAS BEEN VESTED BY LAW IN THE VETERANS' ADMINISTRATION. THE DESIGNATION OF THE BENEFICIARY HAS PROPERLY BEEN COMPARED TO THE DESIGNATION OF A BENEFICIARY FOR LIFE INSURANCE OR UNDER A WILL. SIMILAR TO THE AUTHORITY VESTED IN THE COURTS TO DETERMINE THE TESTAMENTARY CAPACITY OF THE INSURED OR OF A TESTATOR, THE LAW INTENDS THAT THE ADMINISTRATOR OF VETERANS' AFFAIRS HAS AUTHORITY TO DETERMINE THE TESTAMENTARY CAPACITY OF A VETERAN WHEN HE DESIGNATED A BENEFICIARY. HENCE, THE ADMINISTRATOR MAY, AND IT IS HIS DUTY TO, MAKE A FINDING IN ALL CASES IN WHICH PAYMENT OF AN ADJUSTED SERVICE CERTIFICATE TO A DESIGNATED BENEFICIARY IS CONTESTED ON THE GROUND THAT THE VETERAN WAS NOT COMPETENT TO NAME A BENEFICIARY AT THE TIME A PURPORTED DESIGNATION OR CHANGE OF DESIGNATION WAS MADE. SUCH ACTION MAY NOT BE ARBITRARY OR CAPRICIOUS, AND MUST BE BASED ON EVIDENCE OTHER THAN THAT BEFORE THE VETERANS' ADMINISTRATION WHEN THE DESIGNATION OR CHANGE OF BENEFICIARY WAS ORIGINALLY APPROVED. THE COMPARATIVE EQUITIES IN FAVOR OF THE CONTESTING CLAIMANTS ARE NOT CONTROLLING IN DETERMINING THE TESTAMENTARY CAPACITY OF A VETERAN WHEN DESIGNATING A BENEFICIARY FOR HIS ADJUSTED SERVICE CERTIFICATE. IN OTHER WORDS, THIS OFFICE MUST BE SATISFIED THAT THE FACTS REASONABLY SUPPORT THE ADMINISTRATIVE FINDING IN ALL SUCH CASES.

IN THIS CASE THE VETERAN DESIGNATED AS BENEFICIARY HIS WIFE, THE MOTHER OF HIS CHILDREN, AT A TIME WHEN ALL OF THEM WERE LIVING TOGETHER, THE FAMILY THEN BEING SUPPORTED BY THE VETERAN, AND THERE IS NO EVIDENCE OF RECORD OF ANY ESTRANGEMENT AT THE TIME. SUCH DESIGNATION WAS MOST CERTAINLY THE ACT OF A NORMAL PERSON. NOTWITHSTANDING THERE MAY HAVE BEEN EVIDENCE SHOWING IRREGULAR BEHAVIOR IN OTHER RESPECTS, THE EVIDENCE PRESENTED MAY NOT REASONABLY BE ACCEPTED AFTER THE DEATH OF THE VETERAN TO SHOW THAT THE DESIGNATION OF HIS WIFE UNDER SUCH CIRCUMSTANCES WAS OTHER THAN LEGAL AND PROPER.

WHILE IT IS TO BE REGRETTED THAT THE PRESENT EQUITIES, DUE TO CONDITIONS WHICH HAVE ARISEN SINCE THE DESIGNATION OF A BENEFICIARY, SO FORCIBLY STRESSED IN THE RECORD, APPEAR TO BE IN FAVOR OF THE VETERAN'S CHILDREN AND THEIR GUARDIANS, THAT FACTOR SHOULD NOT BE PERMITTED TO INFLUENCE THE FINDING AS TO THE MENTAL OR TESTAMENTARY CAPACITY OF THE VETERAN IN 1927 WHEN HE DESIGNATED HIS WIFE AS BENEFICIARY.

ACCORDINGLY, IT IS THE VIEW OF THIS OFFICE THAT ON THE BASIS OF THE FACTS OF RECORD AWARD OF THE AMOUNT OF THE ADJUSTED SERVICE CERTIFICATE, LESS UNPAID LOANS AND INTERESTS, MAY LAWFULLY BE MADE ONLY IN FAVOR OF THE BENEFICIARY DESIGNATED BY THE VETERAN.