A-81528, FEBRUARY 20, 1941, 20 COMP. GEN. 460

A-81528: Feb 20, 1941

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ON ACCOUNT OF A DEPENDENT MOTHER IS REQUIRED TO PROVE HIS MOTHER'S DEPENDENCY. THE FACT THAT SHE IS A WIDOW AND RESIDING WITH THE OFFICER IS NOT. SUFFICIENT TO ESTABLISH THAT SHE IS IN FACT DEPENDENT ON THE OFFICER FOR HER CHIEF SUPPORT. SINCE STATEMENTS IN AFFIDAVITS SUBMITTED IN SUPPORT OF CLAIMS BY OFFICERS FOR INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS ARE EX PARTE REPRESENTATIONS. CONTRADICTIONS ARE NECESSARILY CONSTRUED MOST STRONGLY AGAINST THE PERSON PRESENTING SUCH REPRESENTATIONS. IN THE AUDIT DIVISION NOTICE OF EXCEPTION IT WAS STATED THAT THE VOUCHER AND PAPERS PRESENTED TO THIS OFFICE IN SUPPORT OF THE CLAIM FOR CREDIT DID NOT ESTABLISH THAT THE MOTHER OF CAPTAIN BARRON WAS IN FACT DEPENDENT ON HIM FOR HER CHIEF SUPPORT.

A-81528, FEBRUARY 20, 1941, 20 COMP. GEN. 460

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS - PROOF OF DEPENDENCY AN OFFICER CLAIMING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES, UNDER SECTIONS 5 AND 6 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, ON ACCOUNT OF A DEPENDENT MOTHER IS REQUIRED TO PROVE HIS MOTHER'S DEPENDENCY, AND THE FACT THAT SHE IS A WIDOW AND RESIDING WITH THE OFFICER IS NOT, OF ITSELF, SUFFICIENT TO ESTABLISH THAT SHE IS IN FACT DEPENDENT ON THE OFFICER FOR HER CHIEF SUPPORT. PROCEDURE FOR ESTABLISHING DEPENDENCY, GENERALLY, DISCUSSED. SINCE STATEMENTS IN AFFIDAVITS SUBMITTED IN SUPPORT OF CLAIMS BY OFFICERS FOR INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS ARE EX PARTE REPRESENTATIONS, OMISSIONS, INCONSISTENCIES, AND CONTRADICTIONS ARE NECESSARILY CONSTRUED MOST STRONGLY AGAINST THE PERSON PRESENTING SUCH REPRESENTATIONS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. W. M. DIXON, UNITED STATES ARMY, FEBRUARY 20, 1941:

THERE HAS BEEN CONSIDERED YOUR REQUEST OF JANUARY 15, 1941, FOR RECONSIDERATION OF THE AUDIT ACTION IN WITHHOLDING CREDIT IN YOUR ACCOUNTS FOR PAYMENTS OF ALLOWANCES AS AN OFFICER WITH DEPENDENTS (MOTHER) TO CAPT. ELBERT MACBY BARRON, J.A.G.D., RESERVES, ON VOUCHERS NO. 10554 FOR THE PERIOD JANUARY 2 TO 31, 1940, AND NO. 11416 FOR THE MONTH OF FEBRUARY, 1940. IN THE AUDIT DIVISION NOTICE OF EXCEPTION IT WAS STATED THAT THE VOUCHER AND PAPERS PRESENTED TO THIS OFFICE IN SUPPORT OF THE CLAIM FOR CREDIT DID NOT ESTABLISH THAT THE MOTHER OF CAPTAIN BARRON WAS IN FACT DEPENDENT ON HIM FOR HER CHIEF SUPPORT. BY RESPONSE OF NOVEMBER 20, 1940, YOU FORWARDED ANOTHER AFFIDAVIT OF THE MOTHER, EXECUTED NOVEMBER 12, 1940, IN FURTHER SUPPORT OF THE PAYMENTS, STATING THAT CAPTAIN BARRON HAD ADVISED YOU THAT THE MOTHER IS, AND HAS BEEN ALMOST WHOLLY, DEPENDENT UPON HIM FOR SUPPORT AND MAINTENANCE SINCE 1926, THE YEAR OF THE DEATH OF HIS FATHER. IN YOUR LETTER OF JANUARY 15, 1941, YOU STATE THAT INASMUCH AS PAYMENTS OF INCREASED ALLOWANCES ARE BEING WITHHELD PENDING ACTION IN THE AUDIT, YOU REQUEST ADVICE WHETHER THE ADDITIONAL AFFIDAVIT GAVE SUFFICIENT INFORMATION TO PASS THE ACCOUNTS TO CREDIT.

PARAGRAPH 29 OF WAR DEPARTMENT SPECIAL ORDERS NO. 294, DATED DECEMBER 19, 1939, PLACED THE OFFICER ON ACTIVE DUTY JANUARY 2, 1940, AND DIRECTED HIS RELIEF THEREFROM JUNE 30, 1940.

THE AFFIDAVITS SHOW THE MOTHER IS A WIDOW, 78 YEARS OF AGE; THAT SHE RESIDES WITH THE OFFICER AND IS SUPPORTED BY HIM, AND IT APPEARS BOTH THE OFFICER AND YOURSELF BELIEVE THAT TO BE SUFFICIENT TO WARRANT THE PAYMENT. SUCH FACTS, IF THE MOTHER IS OTHERWISE CLEARLY SHOWN TO BE WITHOUT SUBSTANTIAL PROPERTY OR INCOME, HAVE BEEN CONSIDERED SUFFICIENT TO WARRANT PAYMENT, ESPECIALLY IN THE CASE OF A RESERVE OFFICER WHOSE OWN AFFIDAVIT SHOWS THAT IN CIVIL LIFE HE IS IN RECEIPT OF AN INCOME SUFFICIENT TO MAINTAIN HIS MOTHER AND HIMSELF. BUT THE FACT OF BEING A WIDOW AND RESIDING WITH THE CLAIMING OFFICER IS NOT, OF ITSELF, SUFFICIENT TO ESTABLISH THAT THE MOTHER IS IN FACT DEPENDENT ON THE OFFICER FOR HER CHIEF SUPPORT, UNLESS IT CLEARLY APPEARS OTHERWISE THAT SHE IS IN FACT DEPENDENT, AS THE CONDITIONS INDICATED MAY EXIST WHERE A MOTHER IS POSSESSED OF SUBSTANTIAL PROPERTY OR IS IN RECEIPT OF AN ADEQUATE INCOME FOR HER OWN SUPPORT.

THE INCOMPLETENESS OF THE AFFIDAVITS IN THIS CASE SUGGESTS THAT POSSIBLY THERE IS A MISAPPREHENSION ON THE PART OF SOME OFFICERS AS TO WHAT IS REQUIRED BY THE STATUTE--- THAT IN SOME WAY IT IS THE MOTHER'S CLAIM AND THAT HER LACK OF KNOWLEDGE OR FAILURE TO STATE HER SITUATION WITH CLEARNESS PLACES A BURDEN ON THIS OFFICE TO ACT, OR INDEPENDENTLY TO ASCERTAIN THE TRUE CONDITIONS. BEFORE THE AVERMENTS IN THIS CASE ARE DISCUSSED THE REQUIREMENTS OF THE LAW AND ITS INTERPRETATION WILL FIRST BE CONSIDERED.

SECTIONS 5 AND 6 (AS AMENDED) OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 628, U.S.C. 9 AND 10, PROVIDE A SUBSISTENCE ALLOWANCE PAYABLE IN GREATER AMOUNTS TO OFFICERS (EXCEPT SECOND LIEUTENANTS) WITH DEPENDENTS THAN TO OFFICERS WITHOUT DEPENDENTS AND A RENTAL ALLOWANCE PAYABLE IN GREATER AMOUNTS TO OFFICERS WITH DEPENDENTS (EXCEPT SECOND LIEUTENANTS), AND UNDER DIFFERENT CONDITIONS, THAN OFFICERS WITHOUT DEPENDENTS. THE ORIGINAL SECTION 4 OF THE ACT, 37 U.S.C. 8, DEFINES DEPENDENTS AS FOLLOWS:

THAT THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT, SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE MOTHER OF THE OFFICER PROVIDED SHE IS IN FACT DEPENDENT ON HIM FOR HER CHIEF SUPPORT.

THE ACT WAS SUBSEQUENTLY AMENDED AS TO CHILDREN BY THE ACT OF FEBRUARY 21, 1959, 45 STAT. 1254, 37 U.S.C. 8-A AND 21-A, BY DEFINING THE TERM "CHILDREN" AS MEANING LEGITIMATE CHILDREN, STEPCHILDREN OR ADOPTED CHILDREN AND REQUIRING THAT THEY BE "IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.' THE ACT IN THIS RESPECT WAS PRECEDED BY THE ACT OF APRIL 16, 1918, 40 STAT. 530, WHICH AUTHORIZED, DURING THE THEN EXISTING EMERGENCY, THE ASSIGNMENT OF PUBLIC QUARTERS FOR THE DEPENDENTS THEREIN NAMED OR THE PAYMENT OF COMMUTATION OF QUARTERS, HEAT AND LIGHT TO AN OFFICER ON FIELD DUTY OR ON ACTIVE DUTY WITHOUT THE TERRITORIAL JURISDICTION OF THE UNITED STATES, WHO MAINTAINED A PLACE OF ABODE FOR A WIFE, CHILD, OR DEPENDENT PARENT. THE COMPTROLLER OF THE TREASURY IN DECISION OF MAY 14, 1918, 24 COMP. DEC. 681, AUTHORIZED PAYMENT OF THIS ALLOWANCE ON THE OFFICER'S CERTIFICATE ATTACHED TO HIS PAY ACCOUNT SHOWING THE FULL NAME AND POST OFFICE ADDRESS OF EACH PERSON FOR THE MAINTENANCE OF WHOM THE COMMUTATION IS CLAIMED, THE EXACT DEGREE OF RELATIONSHIP OF SUCH PERSON TO THE OFFICER AND, IF A DEPENDENT PARENT, THAT THE OFFICER ACTUALLY AND NECESSARILY CONTRIBUTED REGULARLY MORE THAN ONE-HALF OF THE COST OF A REASONABLE LIVING TO THE PARENT. ABUSES HAVING COME TO ATTENTION UNDER THIS STATUTE (SEE 2 COMP. GEN. 41, WHERE THERE ARE CITED DECISIONS OF APRIL 6, 1922, 8 MS. COMP. GEN. 321, AND JUNE 1, 1922, 10 MS. COMP. GEN. 107), IN THE CONSIDERATION OF THE BILL WHICH BECAME THE ACT OF JUNE 10, 1922, 42 STAT. 625, A COMMITTEE OF OFFICERS FROM THE SIX SERVICES AFFECTED BY THE BILL SUBMITTED EXTENSIVE OBSERVATIONS AS TO ITS EFFECT. SEE HEARINGS BEFORE A SPECIAL COMMITTEE OF THE HOUSE OF REPRESENTATIVES, SIXTY-SECOND CONGRESS, SECOND SESSION, ON H.R. 10972. AT PAGE 26 IT WAS STATED WITH RESPECT TO THE REQUIREMENT OF THE LAST SENTENCE OF SECTION 4 OF THE BILL AS ABOVE QUOTED--- " TO COME WITHIN THE DEFINITION THE MOTHER MUST IN FACT BE DEPENDENT ON THE OFFICER FOR HER CHIEF SUPPORT, AND THIS FACT MUST BE ESTABLISHED.'

INDEPENDENTLY OF THIS EXPLANATORY STATEMENT THE LANGUAGE OF THE STATUTES SHOWS PLAINLY THE OFFICER MUST ESTABLISH THE FACTS NECESSARY TO SUPPORT HIS CLAIM. IT IS HIS CLAIM, IT IS NOT THE CLAIM OF THE MOTHER, AND HE MUST SUBMIT THE PROOF NECESSARY TO ESTABLISH IT. THIS HAS BEEN CONSISTENTLY REQUIRED NOT ONLY BY THIS OFFICE BUT BY THE COURTS WHEN THE MATTER HAS COME BEFORE THE COURTS, AND UNDER BOTH OF THE ACTS CITED. FOR EXAMPLE, IN THE CASE OF UNITED STATES V. BERNARD H. WOLTER (SEE 4 COMP. GEN. 1047) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, A SUIT BY THE UNITED STATES TO RECOVER PAYMENTS MADE TO WOLTER ON HIS CERTIFICATE THAT HE MAINTAINED AN ABODE FOR HIS MOTHER AND CONTRIBUTED MORE THAN ONE-HALF OF THE COST OF A REASONABLE LIVING FOR HER, BOTH UNDER THE ACT OF APRIL 16, 1918, AND THE ACT OF JUNE 10, 1922, IT WAS SHOWN THAT THE MOTHER WHILE CONFINED IN A STATE INSTITUTION INHERITED SOME $6,000 AND THE COURT INSTRUCTED THE JURY, AS A MATTER OF LAW, THAT THE DEFENDANT'S MOTHER WAS NOT DEPENDENT UPON HIM FOR SUPPORT AND THAT HE WAS NOT LEGALLY ENTITLED TO RECEIVE ANY OF THE ALLOWANCES PAID TO HIM DURING THE PERIOD SUBSEQUENT TO HER INHERITANCE, AND DIRECTED THE JURY TO SO FIND. IN UNITED STATES V. ALLEN IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, IT WAS SHOWN THAT AT THE TIME THE OFFICER CLAIMED AND WAS PAID ON HIS CERTIFICATE THE ALLOWANCES FOR A DEPENDENT MOTHER, HIS FATHER WAS A COLONEL IN THE ARMY DRAWING THE PAY AND ALLOWANCES OF THAT GRADE, AND JUDGMENT WAS ENTERED FOR THE UNITED STATES, WITH INTEREST AT THE RATE OF 6 PERCENT, FOR THE AMOUNTS PROCURED BY THE OFFICER ON HIS CERTIFICATES. IN THE COURT OF CLAIMS PROOF IS REQUIRED IN EACH CASE. FOR EXAMPLE, SEE REYNER V. UNITED STATES, 68 CT.1CLS. 210; AND NORRIS V. UNITED STATES, ID. 719. SEE ALSO 69 CT.1CLS. 65, 423, 472, 632, AND 687, AND CASES REPORTED IN SUBSEQUENT VOLUMES OF THE REPORTS OF THE COURT OF CLAIMS. IN RIEGER V. UNITED STATES, 69 CT.1CLS. 632, IT WAS SAID AT PAGE 637, AFTER QUOTING SECTION 4 OF THE ACT:

AS WAS SAID BY THIS COURT IN FREELAND V. UNITED STATES, 64 C.1CLS. 364:

"IT IS DIFFICULT TO STANDARDIZE THE FACTS WHICH DISCLOSE A CONDITION DESIGNATED IN THE LAW AS ,CHIEF SUPPORT.'"

EACH CASE MUST STAND UPON ITS OWN PARTICULAR FACTS. NO HARD AND FAST RULE CAN BE LAID DOWN ARBITRARILY FIXING THE VALUE OF PROPERTY OWNED, OR THE AMOUNT OF INCOME RECEIVED BY A MOTHER, AS ENTIRELY DETERMINATIVE OF THE QUESTION OF WHETHER SHE IS DEPENDENT WITHIN THE MEANING OF THE STATUTE.

WE THINK THE WORDS "CHIEF SUPPORT" USED IN THE STATUTE SHOULD BE THEIR ORDINARY AND WELL-KNOWN MEANING. " CHIEF" SUPPORT MEANS "MAIN" SUPPORT OR "PRINCIPAL" SUPPORT. WE THINK A MOTHER IS DEPENDENT FOR HER "CHIEF SUPPORT" IF SOME ONE ELSE IS REQUIRED TO FURNISH MOST, OR THE GREATER PART, OF THE FUNDS NECESSARY FOR HER REASONABLE SUPPORT.

IN EACH OF THE CASES OF SUITS FOR THESE ALLOWANCES BY AN OFFICER CLAIMING HIS MOTHER IS IN FACT DEPENDENT ON HIM, IT WILL BE FOUND BY EXAMINATION OF ANY OF THE VOLUMES OF THE COURT OF CLAIMS REPORTS, THAT THE COURT REQUIRES EVIDENCE TO SUPPORT THE OFFICER'S CLAIM, AND THE COURT HAS FOUND SEVERAL CASES IN WHICH THE CLAIMED DEPENDENCY DID NOT EXIST EITHER AS THEN CLAIMED OR FOR PAST PERIODS WHERE THE GOVERNMENT FILED A COUNTERCLAIM. SEE FOR EXAMPLE, THE FOLLOWING: REYNER V. UNITED STATES, 68 CT.1CLS. 210; GRIFFIN V. UNITED STATES, 74 CT.1CLS. 292; OLDIN V. UNITED STATES, 74 CT.1CLS. 633; GEER V. UNITED STATES, 76 CT.1CLS. 259; HOWARD V. UNITED STATES, 78 CT.1CLS. 265; WHITING V. UNITED STATES, 80 CT.1CLS. 662; MARTIN V. UNITED STATES, 81 CT.1CLS. 622; MCINTYRE V. UNITED STATES, 83 CT.1CLS. 701. NOT ONLY HAS THIS OFFICE AND THE COURTS--- WHERE THE MATTER HAS BEEN PRESENTED TO THE COURTS--- REQUIRED EVIDENCE OF THE FACT OF DEPENDENCY, BUT THE CONGRESS HAS SHOWN CLEARLY THAT THE OFFICER MUST ESTABLISH HIS RIGHT TO THE ADDITIONAL ALLOWANCES BY THE SUBMISSION OF EVIDENCE ENTITLING HIM THERETO. IN THE ACT OF MAY 26, 1926, 44 STAT. 654, VALIDATING PAYMENTS ON THIS ACCOUNT MADE IN GOOD FAITH BY DISBURSING OFFICERS PRIOR TO JULY 1, 1923, UNDER THE ACTS OF APRIL 16, 1918, AND JUNE 10, 1922, THE CONGRESS AUTHORIZED REFUNDMENT TO PAYEES OF COLLECTIONS MADE IN A PROVISO OF THAT ACT, THE PROVISO CONCLUDING:

* * * BUT THIS PROVISO SHALL NOT BE APPLICABLE WHERE THE PAYEE HAS ADMITTED THERE WAS NO DEPENDENCY ON HIM, OR WHERE HE HAS REFUSED TO FURNISH EVIDENCE OF THE DEPENDENCY, OR WHERE THE PAYEE HAS VOLUNTARILY REFUNDED THE PAYMENTS IN WHOLE OR IN PART, OR HAS SUBMITTED NO CLAIM FOR THE ALLOWANCES IN THE NATURE OF A PROTEST AGAINST OFFSET OF HIS PAY AS REFUND OF THE PAYMENTS.

SO, THE SUBMISSION BY THE OFFICER OF ADEQUATE EVIDENCE TO ESTABLISH HIS CLAIM IS NECESSARY AND HAS BEEN REQUIRED UNIFORMLY FOR OVER 18 YEARS; AND THE REQUIREMENT THAT SUCH EVIDENCE BE SUBMITTED HAS BEEN GENERALLY RECOGNIZED WITHOUT QUESTION. THIS OFFICE HAS PRESCRIBED IN STANDARD FORM 1037 A FORM OF AFFIDAVIT CONTAINING QUESTIONS ON THE ESSENTIAL FEATURES OF THE MOTHER'S SITUATION, WHICH THE MOTHER IS REQUIRED TO EXECUTE; BUT THE SUBMISSION OF SUCH AFFIDAVIT IS THE OFFICER'S EVIDENCE TO ESTABLISH HIS CLAIM, AND HE IS REQUIRED ON HIS VOUCHER TO CERTIFY THAT THE SITUATION SHOWN IN THE AFFIDAVIT OF HIS MOTHER--- IDENTIFIED BY DATE--- WHICH HE SUBMITS TO SUPPORT HIS CLAIM "IS TRUE AND CORRECT AND SO REMAINS AT THIS TIME.'

CAPTAIN BARRON FIRST CLAIMED ALLOWANCES AS AN OFFICER WITH DEPENDENTS (MOTHER) AS A FIRST LIEUTENANT, QUARTERMASTER CORPS RESERVE, FOR A PERIOD OF ACTIVE DUTY OCTOBER 11 TO COTBOER 24, 1936, WHEN ASSIGNED TO ACTIVE DUTY UNDER PARAGRAPH 8 OF WAR DEPARTMENT SPECIAL ORDERS NO. 222, DATED SEPTEMBER 18, 1936, HIS CLAIM HAVING BEEN SUBMITTED TO THIS OFFICE BY MAJ. S. R. BEARD, FINANCE DEPARTMENT, UNITED STATES ARMY. IN THAT CLAIM HE DID NOT COMPLETE PARAGRAPH 4 OF THE VOUCHER TO STATE HIS CONTRIBUTIONS TO HIS MOTHER NOR TO CERTIFY TO THE CORRECTNESS OF HER AFFIDAVIT THEREWITH SUBMITTED. IN HIS AFFIDAVIT OF OCTOBER 21, 1936--- IN A FORM REQUIRED OF RESERVE OFFICERS ON ACTIVE DUTY WHO CLAIM ALLOWANCES AS AN OFFICER WITH DEPENDENTS (MOTHER/--- HE DID NOT REPLY TO QUESTION 11 AS TO HIS SALARY IN CIVIL LIFE, AND IN REPLY TO QUESTION 12 AS TO HIS TOTAL INCOME DURING THE PRECEDING CALENDAR YEAR HE STATED: " IMPOSSIBLE TO GIVE THIS WITHOUT OFFICE RECORDS WERE AVAILABLE AND WITHOUT CONSIDERABLE CALCULATION.' HIS MOTHER'S AFFIDAVIT EXECUTED OCTOBER 16, 1936, IN RESPONSE TO QUESTION 7 AS TO THE EMPLOYMENT OF HER HUSBAND SINCE JANUARY 1, 1918, ANSWERED "DECEASED," ALTHOUGH IT WAS OTHERWISE SHOWN ON THE FORM THAT THE HUSBAND DIED JULY 8, 1926. IN ANSWER TO QUESTION 9 THE MOTHER SHOWED SHE HAD A ONE-HALF INTEREST IN THE HOME OWNED JOINTLY WITH HER SON, ELBERT M. BARRON, ACQUIRED IN 1904, HAVING A VALUE OF $2,000 AT THE TIME OF ACQUISITION, AND AN UNDIVIDED ONE-HALF INTEREST IN LAND OWNED JOINTLY WITH HER SON ACQUIRED IN 1919 AND HAVING A VALUE AT THE DATE OF ACQUISITION OF $3,000. IN RESPONSE TO QUESTION 10 AS TO THE TAXES PAID BY THE MOTHER OR HER HUSBAND SINCE JANUARY 1, 1918, THE MOTHER STATED SHE HAD PAID NONE BUT: ALL TAXES ON THE ABOVE PROPERTY AND TAXES OF EVERY CHARACTER HAVE BEEN PAID SINCE THE DEATH OF MY HUSBAND, JOHN M. BARRON, ON JULY OF 1926, BY MY ONLY CHILD, ELBERT M. BARRON, THE OFFICER HEREIN REFERRED TO.

IT SHOULD HAVE BEEN OBVIOUS TO A LAWYER--- THE CLAIMANT IN THIS CASE IS COMMISSIONED IN THE JUDGE ADVOCATE GENERAL'S DEPARTMENT--- THAT THE PURPOSE OF THIS QUESTION WAS TO CHECK ON THE VALUE OF THE PROPERTY LISTED UNDER OTHER QUESTIONS ON THE FORM. HOWEVER, NO INFORMATION WAS GIVEN WHICH WOULD PERMIT A CHECK ON THE VALUE OF THE REAL PROPERTY OWNED AS STATED IN OTHER PORTIONS OF THE AFFIDAVIT FORM. IN REPLY TO QUESTION 11 WHICH REQUIRES, IN THE CASE OF A DECEASED HUSBAND, THAT HIS OCCUPATION, PROFESSION, OR TRADE FOLLOWED IMMEDIATELY PRIOR TO DEATH BE SHOWN, THE MOTHER STATED AS HER DECEASED HUSBAND "/3) PROFESSION, FARMER; " AND IN RESPONSE TO THAT PORTION OF THE QUESTION REQUIRING THE NAMES OF THE PERSONS TO WHOM THE ESTATE, INCLUDING LIFE INSURANCE, WAS DISTRIBUTED, GIVING THE VALUE AND CHARACTER OF PROPERTY GOING TO EACH, THE MOTHER STATED:

* * * (5) RILLA BARRON, HIS SURVIVING WIDOW, AND SON, ELBERT M. BARRON, ONLY SURVIVING CHILD OF SAID MARRIAGE. ALL PROPERTY HAS BEEN HELD JOINTLY WITHOUT ANY DIVISION THEREOF BY THE TWO SAID HEIRS AND IS AS HEREINABOVE SET FORTH. VALUE AT PRESENT LESS THAN $15,000.00 AND NO NET INCOME HAS BEEN DERIVED FROM IT IN MANY YEARS.

IN RESPONSE TO QUESTION 12 AS TO THE NAMES AND ADDRESSES OF HER CHILDREN, THEIR AGES, OCCUPATION, MARITAL CONDITION AND GROSS INCOME DURING THE PRECEDING 12 MONTHS, THE MOTHER SHOWED ONLY THE CLAIMING OFFICER AND AS TO HIS INCOME STATED "UNKNOWN TO AFFIANT.'

IT WILL BE OBSERVED THE VALUE OF THE PROPERTY IN THE ESTATE WAS SHOWN "AT PRESENT" THAT IS, 1936, AS LESS THAN $15,000. IF THAT WAS THE REASONABLE VALUE OF THE PROPERTY IN 1926, WHEN THE HUSBAND DIED, IT SHOULD HAVE BEEN SO STATED. IN ANSWER TO QUESTION 20, THE MOTHER SHOWED SHE HAD A ONE-HALF INTEREST IN THE HOME AND THE SAME INTEREST IN 320 ACRES OF LAND IN HALE COUNTY, TEX., HAVING A COMBINED VALUE OF $5,000 WITH AN ENCUMBRANCE OF $2,000 ON THE LAND IN HALE COUNTY, APPARENTLY THE VALUE SHOWN BEING OF HER INTEREST ONLY. IN ANSWER TO QUESTION 21 THE MOTHER SHOWED THE VALUE OF TANGIBLE PERSONAL PROPERTY THEN OWNED BY AFFIANT AS $5,000, AND IN ANSWER TO QUESTION 22 THE VALUE OF ALL INTANGIBLE PERSONAL PROPERTY "BANK DEPOSITS, INVESTMENTS, ETC; " THEN OWNED BY AFFIANT " NONE.' BY LETTER ON NOVEMBER 18, 1936, MAJOR BEARD THE DISBURSING OFFICER) WAS INFORMED THE PRESENTATION MADE DID NOT ESTABLISH THAT THE OFFICER WAS IN FACT THE CHIEF SUPPORT OF HIS MOTHER. FROM WHAT HAS BEEN HERETOFORE STATED, IT IS APPARENT THERE WAS NO CLEAR SHOWING AS TO THE PROPERTY OWNED BY THE MOTHER NOR THE INCOME OF THE OFFICER IN CIVIL LIFE, HIS OWN ANSWERS AND THE ANSWERS OF THE MOTHER IN THE AFFIDAVIT--- PROBABLY PREPARED BY HIM--- TENDING TO SHOW A PURPOSE TO AVOID GIVING THE ESSENTIAL INFORMATION REQUIRED TO ESTABLISH HIS CLAIM.

PRESUMABLY THE OFFICER WAS INFORMED BY MAJOR BEARD THAT HIS CLAIM FOR THE INCREASED ALLOWANCES HAD NOT BEEN ESTABLISHED, BUT NOTWITHSTANDING THAT FACT, WHEN HE WAS CALLED TO ACTIVE DUTY EFFECTIVE JANUARY 2, 1940, HE PRESENTED TO YOU HIS OWN AND HIS MOTHER'S AFFIDAVITS BOTH EXECUTED JANUARY 11, 1940, AND ON THAT BASIS YOU PAID HIM THE INCREASED ALLOWANCES FOR THE MONTHS OF JANUARY AND FEBRUARY 1940. IN HIS OWN AFFIDAVIT IN CONNECTION WITH THESE VOUCHERS IN RESPONSE TO QUESTION 11, THE OFFICER STATES HIS SALARY AS A CAPTAIN, J.A.G.D., RESERVE, ON ACTIVE DUTY, A MATTER THAT IS WELL KNOWN TO THIS OFFICE AND NOT REQUIRED TO BE GIVEN BY THE CLAIMING OFFICER, WHEREAS WHAT WAS DESIRED, AS SHOULD BE OBVIOUS, WAS HIS SALARY IN CIVIL LIFE; AS TO HIS TOTAL INCOME DURING THE PRECEDING CALENDAR YEAR, THAT IS, 1939, HE STATED " APPROXIMATELY $5,000.00.' DEFINITE INFORMATION, NOT APPROXIMATIONS, ARE CALLED FOR IN THE FORMS OF AFFIDAVIT. IN THE ANSWER TO QUESTION 7 OF THE MOTHER'S AFFIDAVIT, CONTRARY TO THE IMPLICATIONS CONTAINED IN THE MOTHER'S ANSWER TO QUESTIONS 7 AND 11 OF THE AFFIDAVIT OF OCTOBER 16, 1936, SHE SHOWED HER HUSBAND WAS EMPLOYED, FROM JANUARY 1, 1918, TO THE TIME OF HIS DEATH, AS MANAGER OF THE PLANTERS GIN CORPORATION OF VAN ALSTYNE, TEX., AT A SALARY OF $150 PER MONTH. IN ANSWER TO QUESTION 8, WHICH REQUIRES THE GROSS INCOME OF THE AFFIANT FOR 5 CALENDAR YEARS PRECEDING THE DATE OF THE AFFIDAVIT, THERE IS TYPED ABOVE THE BLANKS THE STATEMENT " NECESSARILY THIS IS GIVEN FROM INCOME TAX RETURNS OF MY SON FOR THE CALENDAR YEARS MENTIONED," AND IN PARENTHESIS UNDER DETAILS OF AFFIANT'S GROSS INCOME FROM BUSINESS, OCCUPATION, OFFICER SON, AND ALL OTHER SOURCES, INCLUDING GIFTS, IT IS STATED ") I KNOW NOTHING CONCERNING THE INCOME OF MY SON EXCEPT WHAT HE TELLS ME.)" IN THE " TOTAL" COLUMNS UNDER THE PORTION OF THE QUESTION DESIGNED TO SECURE A STATEMENT OF THE HUSBAND'S GROSS INCOME, TOTALS ARE INSERTED FOR 1935, $2,934.28; 1936, $3,891.27; 1937, $4,494; 1938, $4,777.68; AND FOR 39,"WILL APPROXIMATE $5,000.00 (TAX NOT YET FINALLY COMPUTED FOR 1939, AND CANNOT BE AT THIS ME).' THIS QUESTION DOES NOT ASK FOR THE GROSS INCOME OF THE SON, IT ASKS FOR THE GROSS INCOME OF THE AFFIANT, THE MOTHER. THAT INFORMATION WAS NOT GIVEN. IN ANSWER TO QUESTION 9, THE MOTHER SHOWS SHE ACQUIRED IN 1926, UPON THE DEATH OF HER HUSBAND, A ONE-HALF INTEREST IN THE RESIDENCE AT VAN ALSTYNE, TEX., OF A VALUE OF ABOUT $5,000. THE LAND IN HALE COUNTY, TEX., IS NOT MENTIONED AND THE MOTHER ANSWERS " YES" TO THE FOLLOWING PORTION OF QUESTION 9:

DOES THE ABOVE INCLUDE ALL STOCKS, BONDS, MORTGAGES, OR OTHER INTANGIBLE PROPERTY OF WHICH YOU AND HUSBAND, EACH OR BOTH, WERE THE LEGAL OR BENEFICIAL OWNERS OR IN WHICH EITHER OF YOU HAD OR HAVE A BENEFICIAL INTEREST?

APPARENTLY THE THEN VALUE OF THE PROPERTY WAS GIVEN, NOT ITS VALUE AT DATE OF ACQUISITION BY THE HUSBAND.

IN ANSWER TO QUESTION 10 AS TO TAXES PAID, THE MOTHER AGAIN STATES THAT THESE HAVE BEEN PAID BY HER SON BUT THAT THEY "CONSIST SOLELY OF LOCAL, STATE AND COUNTY PROPERTY TAXES AND AGGREGATE ABOUT FORTY DOLLARS PER YEAR.' IN ANSWER TO QUESTION 11, THE MOTHER STATES THE HUSBAND'S OCCUPATION IMMEDIATELY PRIOR TO DEATH WAS MANAGER OF THE PLANTERS GIN CORPORATION OF VAN ALSTYNE, AND THAT:

* * * ALL OF HIS PROPERTY CONSISTING OF THE REALTY MENTIONED ABOVE (RESIDENCE ONLY, 320 ACRES IN HALE COUNTY NOT MENTIONED) AND ABOUT ONE THOUSAND DOLLARS IN LIFE INSURANCE PASSED TO ME AND MY ONLY CHILD, ELBERT M. BARRON, TOGETHER WITH OTHER PERSONAL PROPERTY DESCRIBED HEREIN.

UNDER QUESTION 12 THE MOTHER STATES THE GROSS INCOME OF HER SON AS "ABOUT $5,000.00 PER ANNUM.' UNDER QUESTION 20, THE MOTHER SHOWS THE ONLY PROPERTY OWNED BY HER IS THE UNDIVIDED ONE-HALF INTEREST IN THE HOUSE IN VAN ALSTYNE, ESTIMATED TO HAVE A TOTAL VALUE OF $2,000. IN ANSWER TO QUESTION 21, AS TO TANGIBLE PERSONAL PROPERTY OWNED BY AFFIANT, SHE SHOWS "ABOUT $1,000.00 ONE-HALF INTEREST IN $2,000 IN PROMISSORY NOTES HELD JOINTLY WITH MY SON WHICH BEAR 6 PERCENT INTEREST PER ANNUM," AND IN ANSWER TO QUESTION 22 AS TO THE VALUE OF ALL INTANGIBLE PERSONAL PROPERTY, BANK DEPOSITS, INVESTMENTS, ETC., NOW OWNED BY THE AFFIANT, THE MOTHER ANSWERS " ABOUT $900.00 IN CASH, FURNITURE, STOCKS, ETC.' IN ANSWER TO QUESTION 23, AS TO HER NET INCOME, THE MOTHER STATES: " OF COURSE I WILL RECEIVE ABOUT $60.00 PER ANNUM IN INTEREST FROM MY INTEREST ON THE NOTES REFERRED TO ABOVE, IN CASE THE INTEREST IS PAID.'

IT WILL BE OBSERVED THAT THERE WAS A DEPARTURE IN THIS AFFIDAVIT FROM THE STATEMENTS MADE IN THE AFFIDAVIT OF OCTOBER 16, 1936; THAT, APPARENTLY, UNDER PARAGRAPH 9 THE HALE COUNTY LAND WAS OMITTED AND THERE WAS OMITTED, ALSO, ANY REFERENCE TO THE NOTES OR TO THE STOCKS (QUESTION 22); AND THAT THE TANGIBLE PERSONAL PROPERTY OF $5,000 IN THE AFFIDAVIT OF OCTOBER 16, 1936, WAS NOT MENTIONED BUT INTANGIBLE PERSONAL PROPERTY WAS INCLUDED UNDER THAT QUESTION.

WITH YOUR REPLY OF NOVEMBER 20, 1940, YOU SUBMITTED ANOTHER AFFIDAVIT OF THE MOTHER EXECUTED NOVEMBER 12, 1940. THE SAME ANSWER WAS MADE TO QUESTION 8 IN THIS AFFIDAVIT AS IN THE ONE OF JANUARY 11, 1940. THE SAME INCONSISTENCIES AND INCOMPLETENESSES ARE CONTAINED IN THE ANSWER TO QUESTION 9, THE SAME LACK OF INFORMATION AS TO THE TAXES PAID IS CONTAINED IN ANSWER TO QUESTION 10, IN QUESTION 12 THE SAME APPROXIMATION IS MADE AS TO THE SALARY OF HER SON, AND IN ANSWER TO QUESTION 21 THE VALUE OF TANGIBLE PERSONAL PROPERTY THEN OWNED BY THE AFFIANT IS SHOWN AS "ABOUT $1,000 (APPARENTLY--- AS IT IS IN A COLUMN ABOVE THE QUESTION) MY ONE-HALF INTEREST" (THE ANSWER THUS CONTINUES) "AND (B) SON JOINTLY $2,000.00.' IS RATHER DIFFICULT TO DETERMINE JUST WHAT THE ANSWER IS AND IT IS POSSIBLE THE REAL PROPERTY--- OTHERWISE DESCRIBED IN THE AFFIDAVIT AND OF THE CLAIMED VALUE OF $2,000 -- WAS INTENDED UNDER THIS HEADING. THE ANSWER TO QUESTION 22 REQUIRES A STATEMENT OF THE VALUE OF INTANGIBLE PERSONAL PROPERTY (BANK DEPOSITS, INVESTMENTS, ETC.) THEN OWNED BY THE AFFIANT AND IS ANSWERED "$900.00 INCLUDING ONE-HALF INTEREST IN $1,157.61 IN PROMISSORY NOTES HELD JOINTLY WITH MY SON.'

IT WILL BE OBSERVED THE INFORMATION AS TO PROPERTY AND INCOME OF THE MOTHER CANNOT BE DETERMINED FROM THE VARIOUS ANSWERS MADE. IT IS AN EX PARTE REPRESENTATION, AND OMISSIONS, INCONSISTENCIES AND CONTRADICTIONS ARE NECESSARILY CONSTRUED MOST STRONGLY AGAINST THE PERSON PRESENTING SUCH REPRESENTATIONS FOR THE ALLOWANCE OF A CLAIM. THE OFFICER BEING A LAWYER IN CIVIL LIFE, IT MAY BE PRESUMED HE PREPARED THE AFFIDAVITS FOR HIS MOTHER. THESE AFFIDAVITS WERE TO SUPPORT HIS CLAIM, BUT, AS TO SOME MATERIAL MATTERS, IT APPEARS THE MOTHER KNOWS NOTHING. IT HAS BEEN HERETOFORE POINTED OUT THAT THE ABSENCE OF INFORMATION WILL NOT WARRANT A DETERMINATION FAVORABLE TO THE CLAIMANT. THE AFFIDAVIT FORM CONTAINS SIMPLE QUESTIONS, TECHNICAL LANGUAGE BEING USED ONLY WITH RESPECT TO THE OWNERSHIP OF PROPERTY AND THAT LANGUAGE HAS BEEN NECESSARY TO DISTINGUISH FORMS OF PROPERTY. IT IS POSSIBLE THAT ALLOWANCE MAY BE MADE FOR INACCURACIES IN ANSWER TO SUCH QUESTIONS IN SOME CASES WHERE LAYMEN ARE FORMULATING ANSWERS THERETO, BUT NO SUCH CONSIDERATION MAY BE SHOWN IN THAT RESPECT WHERE THE OFFICER CLAIMING IS A LAWYER AND HE HAS PRESENTED THE AFFIDAVITS OF HIS MOTHER TO ESTABLISH HIS CLAIM.

THE EXCEPTIONS HERETOFORE TAKEN TO THE PAYMENTS BY YOU IN THIS CASE NECESSARILY MUST BE ADHERED TO, BUT NOTWITHSTANDING THE FAILURE TO SUPPLY THE ESSENTIAL INFORMATION AS TO THE PROPERTY AND INCOME OF THE OFFICER'S MOTHER AS HERETOFORE FURNISHED BY THE OFFICER, IF HE WILL NOW FURNISH AN AFFIDAVIT OF HIS MOTHER ON WHICH THESE MATTERS ARE CLEARLY AND DEFINITELY STATED, WITH SUCH EXPLANATION AS HE MAY CARE TO SUBMIT FOR SUCH PAST CONTRADICTIONS AND INACCURACIES AS HAVE BEEN CALLED TO ATTENTION, THE MATTER WILL BE FURTHER CONSIDERED. HOWEVER, THE OFFICER SHOULD UNDERSTAND THAT THE MATTER WILL BE DETERMINED ON AN EX PARTE PRESENTATION BY HIM AND THAT THE UTMOST GOOD FAITH IS REQUIRED BY HIM IN MAKING SUCH A PRESENTATION.