A-67519, NOVEMBER 23, 1935, 15 COMP. GEN. 441

A-67519: Nov 23, 1935

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PAYMENTS UNDER PRODUCTION ADJUSTMENT CONTRACT - AGRICULTURAL ADJUSTMENT ADMINISTRATION THE DESIGNATION IN A SUGAR-BEET PRODUCTION ADJUSTMENT CONTRACT OF A THIRD PARTY AS PAYEE IN THE EVENT OF THE DEATH OF THE PRODUCER AND CONTRACTOR IS IN THE NATURE OF A TESTAMENTARY DISPOSITION OF THE PROCEEDS OF THE CONTRACT. AT THE DEATH OF THE CONTRACTOR PAYMENT WAS FOR MAKING TO THE PROPER REPRESENTATIVE OF THE ESTATE OF THE DECEASED. WAS MADE SPECIAL ADMINISTRATOR OF THE ESTATE. A GOVERNMENT CHECK FOR $187.00 WAS MADE PAYABLE TO MR. PORTER STATES THAT HE KNEW THERE WAS A CONTRACT BETWEEN MR. WAS APPOINTED SPECIAL ADMINISTRATOR. PAYMENTS WHICH HAVE ACCRUED AT THE TIME OF SUCH CONTINGENCY SHALL BE PAID AS THEREIN PROVIDED.

A-67519, NOVEMBER 23, 1935, 15 COMP. GEN. 441

PAYMENTS UNDER PRODUCTION ADJUSTMENT CONTRACT - AGRICULTURAL ADJUSTMENT ADMINISTRATION THE DESIGNATION IN A SUGAR-BEET PRODUCTION ADJUSTMENT CONTRACT OF A THIRD PARTY AS PAYEE IN THE EVENT OF THE DEATH OF THE PRODUCER AND CONTRACTOR IS IN THE NATURE OF A TESTAMENTARY DISPOSITION OF THE PROCEEDS OF THE CONTRACT. AT THE DEATH OF THE CONTRACTOR PAYMENT WAS FOR MAKING TO THE PROPER REPRESENTATIVE OF THE ESTATE OF THE DECEASED, THERE BEING NO OBLIGATION UPON THE UNITED STATES TO MAKE PAYMENT TO SAID THIRD PARTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, NOVEMBER 23, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 8, 1935, AS FOLLOWS:

ON DECEMBER 27, 1934, JOHN S. MCCLURE EXECUTED SUGAR BEET PRODUCTION ADJUSTMENT CONTRACT NO. 2731. UNDER PART III, ARTICLE 23 (A), OF THE CONTRACT, HE DESIGNATED CORA B. GILBERT, 562 WHITE AVENUE, GRAND JUNCTION,COLO., AS PAYEE IN THE EVENT OF HIS DEATH. MR. MCCLURE DIED MARCH 30, 1935, AT MORRILL, NEBR. GEORGE PORTER, MR. MCCLURE'S BROTHER IN -LAW, WAS MADE SPECIAL ADMINISTRATOR OF THE ESTATE. ON APRIL 12, 1935, A GOVERNMENT CHECK FOR $187.00 WAS MADE PAYABLE TO MR. MCCLURE AND FORWARDED TO THE COUNTY AGENT. THE COUNTY AGENT APPARENTLY MAILED A NOTICE TO MR. MCCLURE OF THE RECEIPT OF THE CHECK. MR. PORTER, AS ADMINISTRATOR OF MR. MCCLURE'S ESTATE, PRESENTED HIS CREDENTIALS, RECEIVED THE CHECK, AND ENDORSED IT OVER TO THE ESTATE. MR. PORTER STATES THAT HE KNEW THERE WAS A CONTRACT BETWEEN MR. MCCLURE AND THE SECRETARY, BUT DID NOT KNOW ITS TERMS. SHORTLY THEREAFTER, HIS ADMINISTRATORSHIP TERMINATED, AND T. S. BAKER, AN ATTORNEY AT HARRISON, NEBR., WAS APPOINTED SPECIAL ADMINISTRATOR.

CORA B. GILBERT BASES HER CLAIM FOR PAYMENT ON PARAGRAPH 23 OF THE CONTRACT. THIS PARAGRAPH PROVIDES THAT,"ALL PAYMENTS UNDER THIS CONTRACT SHALL BE MADE TO THE PRODUCER EXCEPT AS PROVIDED UNDER THIS SECTION AND SECTIONS 24 AND 25. IN THE EVENT OF THE CONTINGENCIES LISTED BELOW IN PARAGRAPHS (A), (B), AND (C) OF THIS SECTION, PAYMENTS WHICH HAVE ACCRUED AT THE TIME OF SUCH CONTINGENCY SHALL BE PAID AS THEREIN PROVIDED. PAYMENT WILL BE DEEMED TO HAVE ACCRUED IF AT THE TIME OF THE HAPPENING OF SUCH CONTINGENCY THE PRODUCER HAS PERFORMED THE CONDITIONS PRECEDENT, EXCEPT REQUIREMENTS OF PROOF, TO SUCH PAYMENT.' MRS. GILBERT WAS DESIGNATED TO RECEIVE THE PAYMENTS IN THE EVENT OF THE PRODUCER'S DEATH.

IT APPEARS THAT MRS. GILBERT WAS NOT IN ANY WAY AT FAULT, AND HAS NOT SHARED IN THE PROCEEDS OF THE CHECK. THE MISTAKE SEEMS TO HAVE BEEN MADE BY THE COUNTY AGENT IN TURNING OVER THE CHECK TO MR. MCCLURE'S ADMINISTRATOR.

WE RESPECTFULLY ASK FOR A RULING FROM YOUR OFFICE AS TO WHETHER A CHECK MAY BE ISSUED TO CORA B. GILBERT, AND WHETHER SUCH CHECK CAN BE ISSUED BEFORE THE RECOVERY OF THE PAYMENTS ERRONEOUSLY MADE.

THE CONTRACT IN QUESTION WAS NOT BETWEEN THE UNITED STATES AND CORA B. GILBERT, BUT BETWEEN THE UNITED STATES AND JOHN S. MCCLURE, AND THE FACT THAT HE NAMED HER IN THE CONTRACT AS THE PERSON TO RECEIVE THE PAYMENTS IN EVENT OF HIS DEATH DOES NOT CREATE A CONTRACTUAL RELATIONSHIP BETWEEN THE UNITED STATES AND MRS. GILBERT. IT WAS IN THE NATURE OF A TESTAMENTARY DISPOSITION OF THE PROCEEDS OF THE CONTRACT IN EVENT OF DEATH AND PAYMENT WAS FOR MAKING TO THE PROPER REPRESENTATIVE OF THE ESTATE OF THE DECEASED CONTRACTOR. WHATEVER CLAIM MRS. GILBERT MAY HAVE BY VIRTUE OF THE TERMS OF THE CONTRACT BETWEEN THE UNITED STATES AND JOHN S. MCCLURE, NOW DECEASED, IS AGAINST HIS ADMINISTRATOR AND NOT AGAINST THE UNITED STATES.

ACCORDINGLY, THE QUESTION STATED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER OF NOVEMBER 8, 1935, IS ANSWERED IN THE NEGATIVE.