A-6022, OCTOBER 30, 1924, 4 COMP. GEN. 417

A-6022: Oct 30, 1924

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ESTATES OF DECEDENTS - ARMY ENLISTED MEN AN AMOUNT IN EXCESS OF $500 DUE THE ESTATE OF A DECEASED ENLISTED MAN OF THE ARMY MAY NOT BE PAID TO AN ANCILLARY ADMINISTRATOR APPOINTED IN THE STATE WHERE THE ENLISTED MAN WAS STATIONED WHEN HE DIED. EVEN THOUGH HE MAY HAVE LEFT A DEBT FOR A LESSER AMOUNT DUE A RESIDENT OF SUCH JURISDICTION. WHEN IT APPEARS THAT THE DOMICILE OF THE DECEASED WAS IN ANOTHER JURISDICTION IN WHICH RESIDES A SISTER. SETTLEMENT WILL BE DEFERRED AWAITING THE APPOINTMENT OF A PRINCIPAL OR DOMICILIARY ADMINISTRATOR IN THE JURISDICTION OF THE DOMICILE OF THE DECEASED. 1924: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF WILLIAM M. LETTERS OF ADMINISTRATION WERE GRANTED TO CLAIMANT HEREIN BY THE CIRCUIT COURT OF FAIRFAX COUNTY.

A-6022, OCTOBER 30, 1924, 4 COMP. GEN. 417

ESTATES OF DECEDENTS - ARMY ENLISTED MEN AN AMOUNT IN EXCESS OF $500 DUE THE ESTATE OF A DECEASED ENLISTED MAN OF THE ARMY MAY NOT BE PAID TO AN ANCILLARY ADMINISTRATOR APPOINTED IN THE STATE WHERE THE ENLISTED MAN WAS STATIONED WHEN HE DIED, EVEN THOUGH HE MAY HAVE LEFT A DEBT FOR A LESSER AMOUNT DUE A RESIDENT OF SUCH JURISDICTION, WHEN IT APPEARS THAT THE DOMICILE OF THE DECEASED WAS IN ANOTHER JURISDICTION IN WHICH RESIDES A SISTER, BUT SETTLEMENT WILL BE DEFERRED AWAITING THE APPOINTMENT OF A PRINCIPAL OR DOMICILIARY ADMINISTRATOR IN THE JURISDICTION OF THE DOMICILE OF THE DECEASED.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 30, 1924:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF WILLIAM M. ELLISON, AN ATTORNEY AT LAW, OF WASHINGTON, D.C., AND WEST FALLS CHURCH, VA., AS ADMINISTRATOR OF THE ESTATE OF GEORGE COLUMBUS, LATE A SERGEANT, HEADQUARTERS COMPANY, THIRTEENTH ENGINEERS, WHO DIED AUGUST 12, 1923, AT FORT HUMPHREYS, VA. IT APPEARS THAT THE SOLDIER LEFT SURVIVING HIM AT LEAST ONE SISTER LIVING IN QUEBEC, PROVINCE OF QUEBEC, CANADA, AND THAT THE AMOUNT DUE THE ESTATE EXCEEDS $500. LETTERS OF ADMINISTRATION WERE GRANTED TO CLAIMANT HEREIN BY THE CIRCUIT COURT OF FAIRFAX COUNTY, VA., "ON ALL AND SINGULAR THE ESTATE OF GEORGE COLUMBUS, WHO WAS LATE OF THIS COUNTY," AND THE ADMINISTRATOR STATES IN HIS APPLICATION FOR THE ARREARS OF PAY, ETC., THAT "LETTERS OF ADMINISTRATION WERE TAKEN OUT IN THE INTEREST OF MAY MCGLUE FOR A DEBT OF ($106.75) ONE HUNDRED SIX AND 75/100 DOLLARS.'

THE MILITARY HISTORY OF THE SOLDIER IS AS FOLLOWS:

ENROLLED JUNE 13, 1898, AT BUFFALO, N.Y.; MUSTERED INTO SERVICE SAME DATE A PRIVATE, CO. I, 6KTH N.Y.INF.; MUSTERED OUT A PRIVATE NOVEMBER 19, 1898, AT BUFFALO, N.Y., WITH COMPANY. ENLISTED APRIL 5, 1899; DISCHARGED APRIL 4, 1902. REENLISTED MAY 9, 1902; DISCHARGED MAY 8, 1905. REENLISTED MAY 26, 1905; DISCHARGED MAY 25, 1908. REENLISTED MAY 26, 1908; DISCHARGED JULY 17, 1911. AGAIN ENLISTED MAY 17, 1912; DISCHARGED MAY 16, 1915. REENLISTED MAY 17, 1915; DISCHARGED MAY 22, 1919. REENLISTED MAY 23, 1919. HOME ADDRESS, WASHINGTON BARRACKS, WASHINGTON, D.C. DISCHARGED MAY 31, 1922. REENLISTED JUNE 1, 1922. HOME ADDRESS, 34 ROYLAN ST., QUEBEC, CANADA. DIED AUGUST 12, 1923, AT FORT HUMPHREYS, VA., A SERGEANT, HEADQUARTERS COMPANY, 13TH ENGINEERS. DEATH OCCURRED IN LINE OF DUTY. EMERGENCY ADDRESS, ELLA COLUMBUS (SISTER), 34 ROYLAN ST., QUEBEC, CANADA.

IT THUS APPEARS THAT EXCEPT FOR THE PERIODS NOVEMBER 20, 1898, TO APRIL 4, 1899, AND JULY 18, 1911, TO MAY 16, 1912, THE SOLDIER WAS CONTINUOUSLY IN THE SERVICE FROM JUNE 13, 1898, TO THE DATE OF HIS DEATH. HE ENTERED THE SERVICE AT BUFFALO, N.Y., AND ALTHOUGH GIVING HIS HOME ADDRESS IN 1919 AS WASHINGTON BARRACKS (AN ARMY POST), HE GAVE AS HIS HOME ADDRESS ON HIS LAST DISCHARGE QUEBEC, CANADA, AND THE ADDRESS OF THE RELATIVE TO BE NOTIFIED IN CASE OF NECESSITY AS THAT OF A SISTER LIVING IN QUEBEC. THAT THE SOLDIER EVER CLAIMED FORT HUMPHREYS OR ANY OTHER PLACE IN VIRGINIA AS HIS HOME OR DOMICILE IS NOT SUGGESTED. SOLDIERS, IT HAS BEEN SAID, HAVE A QUASI INCAPACITY TO ACQUIRE A NEW DOMICILE. IN 19 CORPUS JURIS, 418, THE FOLLOWING STATEMENT OF THE LAW HAS BEEN FORMULATED ON THE CASES THERE COLLECTED:

THE DOMICILE OF A SOLDIER OR SAILOR IN THE MILITARY OR NAVAL SERVICE OF HIS COUNTRY GENERALLY REMAINS UNCHANGED, DOMICILE BEING NEITHER GAINED NOR LOST BY BEING TEMPORARILY STATIONED IN THE LINE OF DUTY AT A PARTICULAR PLACE, EVEN FOR A PERIOD OF YEARS. A NEW DOMICILE MAY, HOWEVER, BE ACQUIRED IF BOTH THE FACT AND THE INTENT CONCUR. * * *

HOWEVER, EXCEPT FOR THE SUGGESTION CONTAINED IN THE LETTERS OF ADMINISTRATION THAT THE SOLDIER ,WAS LATE OF" FAIRFAX COUNTY, VA., THERE IS NO ALLEGATION THAT HE WAS DOMICILED THERE. WHEREVER THE SOLDIER'S DOMICILE WAS, IT SEEMS CERTAIN IT WAS NOT FAIRFAX COUNTY, VA. THE ADMINISTRATOR, AND CLAIMANT HEREIN, AT BEST IS, THEREFORE, AN ANCILLARY ADMINISTRATOR, WHOSE POWERS EXTEND ONLY TO THE ASSETS WITHIN THE JURISDICTION OF HIS APPOINTMENT. IT HAS BEEN SAID:

AN ANCILLARY ADMINISTRATION IS PROPER WHENEVER A PERSON DIES LEAVING IN A STATE OR COUNTRY OTHER THAN THAT OF HIS LAST DOMICILE PROPERTY TO BE ADMINISTERED, OR WHICH IS IN DANGER OF BEING WASTED OR LOST, OR DEBTS OWING TO HIM WHICH MUST BE COLLECTED BY SUIT, OR WHERE THERE ARE PROVISIONS OF HIS WILL TO BE CARRIED OUT WITH RESPECT TO PROPERTY IN SUCH JURISDICTION. * * * THE CHIEF OBJECT, HOWEVER, OF AN ANCILLARY ADMINISTRATION IS TO COLLECT AND PRESERVE LOCAL ASSETS FOR THE BENEFIT OF LOCAL CREDITORS. 18 CYC. 1223.

MONEYS DUE FROM THE UNITED STATES HAVE NO SITUS. VAUGHN V. NORTHRUP, 15 PETERS, 1; WYMAN V. HALSTEAD, 109 U.S. 654; UNITED STATES V. BORCHERLING, 185 U.S. 223; 25 COMP. DEC. 656.

IN WYMAN V. HALSTEAD, SUPRA, IT WAS SAID:

* * * BUT THE UNITED STATES, IN THEIR SOVEREIGN CAPACITY, HAVING NO DOMICIL IN ANY ONE PART OF THE UNION RATHER THAN IN ANY OTHER, DO NOT, BY ESTABLISHING AT THE NATIONAL CAPITAL A TREASURY FOR THE TRANSACTION OF THE PRINCIPAL BUSINESS OF THE FINANCIAL DEPARTMENT OF THE GOVERNMENT AND MAKING THEIR MONEY OBLIGATIONS PAYABLE THERE, CONFINE THEIR PRESENCE OR THEIR POWERS TO THIS SPOT. THE UNITED STATES HAVING, IN THE PHRASE OF MR. JUSTICE STORY,"AN UBIQUITY THROUGHOUT THE UNION" MAY IN THEIR DISCRETION, EXERCISED THROUGH THE APPROPRIATE OFFICERS, PAY A DEBT DUE TO THE ESTATE OF A DECEASED PERSON EITHER TO THE ADMINISTRATOR APPOINTED IN THE STATE OF HIS DOMICIL OR TO AN ANCILLARY ADMINISTRATOR DULY APPOINTED IN THE DISTRICT OF COLUMBIA, AND THE EXERCISE OF THEIR DISCRETION IN THIS REGARD CAN NOT BE CONTROLLED BY WRIT OF MANDAMUS.

IT APPEARS THAT THE SOLDIER WAS NOT DOMICILED IN THE JURISDICTION IN WHICH THE LETTERS OF ADMINISTRATION WERE ISSUED AND THAT A PRINCIPAL OR DOMICILIARY ADMINISTRATION MUST BE HAD IN ANY EVENT. PAYMENT OF THE AMOUNT DUE THE ESTATE OF THE SOLDIER FROM THE UNITED STATES MUST AWAIT THE APPOINTMENT OF SUCH PRINCIPAL OR DOMICILIARY ADMINISTRATOR.

IT IS PROPER TO REMARK THAT THE 112TH ARTICLE OF WAR, 41 STAT. 809, MAKES PROVISION FOR THE PAYMENT OF LOCAL CREDITORS OF A SOLDIER DYING IN THE SERVICE BY AUTHORIZING THE SUMMARY COURT UPON THE DIRECTION OF THE COMMANDING OFFICER,"TO PAY THE UNDISPUTED LOCAL CREDITORS OF DECEDENT IN SO FAR AS ANY MONEY BELONGING TO THE DECEASED WHICH MAY COME INTO SAID SUMMARY COURT'S POSSESSION UNDER THIS ARTICLE WILL PERMIT, * * *.'

THE CLAIM OF THE ANCILLARY ADMINISTRATOR WILL ACCORDINGLY BE DISALLOWED AS NOT PROPER FOR PAYMENT UNDER HIS APPOINTMENT. SEE ALSO 20 COMP. DEC. 740; 23 ID. 95.