A-90520, AUGUST 25, 1939, 19 COMP. GEN. 273

A-90520: Aug 25, 1939

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LUNACY PROCEEDINGS - COAST GUARD BOARD INQUIRY STATUS AND NOTICE REQUIREMENTS GENERALLY THE PROCEEDINGS OF A COAST GUARD RETIRING BOARD INQUIRY HELD PRIMARILY FOR THE PURPOSE OF DETERMINING WHETHER A COAST GUARDSMAN'S MENTAL CONDITION WAS SUFFICIENTLY SERIOUS TO INCAPACITATE HIM FOR ACTIVE SERVICE AND TO DETERMINE HIS FUTURE STATUS AS TO RETIRED PAY AND HOSPITALIZATION AT GOVERNMENT EXPENSE OBVIOUSLY WERE NOT "LUNACY PROCEEDINGS" WITHIN THE LEGAL MEANING OF THAT TERM WHICH CONTEMPLATES PROCEEDINGS JUDICIAL IN CHARACTER CONDUCTED BY A COURT OF COMPETENT JURISDICTION WHICH MAKES ITS DECISION UPON EXPERT AND OTHER ADMISSIBLE TESTIMONY OR UPON THE FINDINGS AND RECOMMENDATIONS OF A COMMISSION DE LUNATICO INQUIRENDO APPOINTED BY THE COURT FOR THE PURPOSE OF THE INQUIRY.

A-90520, AUGUST 25, 1939, 19 COMP. GEN. 273

LUNACY PROCEEDINGS - COAST GUARD BOARD INQUIRY STATUS AND NOTICE REQUIREMENTS GENERALLY THE PROCEEDINGS OF A COAST GUARD RETIRING BOARD INQUIRY HELD PRIMARILY FOR THE PURPOSE OF DETERMINING WHETHER A COAST GUARDSMAN'S MENTAL CONDITION WAS SUFFICIENTLY SERIOUS TO INCAPACITATE HIM FOR ACTIVE SERVICE AND TO DETERMINE HIS FUTURE STATUS AS TO RETIRED PAY AND HOSPITALIZATION AT GOVERNMENT EXPENSE OBVIOUSLY WERE NOT "LUNACY PROCEEDINGS" WITHIN THE LEGAL MEANING OF THAT TERM WHICH CONTEMPLATES PROCEEDINGS JUDICIAL IN CHARACTER CONDUCTED BY A COURT OF COMPETENT JURISDICTION WHICH MAKES ITS DECISION UPON EXPERT AND OTHER ADMISSIBLE TESTIMONY OR UPON THE FINDINGS AND RECOMMENDATIONS OF A COMMISSION DE LUNATICO INQUIRENDO APPOINTED BY THE COURT FOR THE PURPOSE OF THE INQUIRY. THE ACTION OF A LOCAL PHILIPPINE COURT PRESUMING TO ADJUDGE INSANE A COAST GUARDSMAN WHO WAS RETIRED AFTER A COAST GUARD RETIRING BOARD INQUIRY AND CONFINED IN ST. ELIZABETHS HOSPITAL FOR THE INSANE, AND TO APPOINT A GUARDIAN OF HIS PERSON AND ESTATE, WITHOUT COMPLIANCE WITH THE NECESSARY REQUISITES OF PERSONAL SERVICE, IS A NULLITY INSOFAR AS RECURRING INSTALLMENTS OF RETIRED PAY DUE THE ALLEGED INCOMPETENT, BUT PAYMENTS OF RETIRED PAY MADE BY A DISBURSING OFFICER TO THE GUARDIAN SO APPOINTED, IN EXACT ACCORDANCE WITH THE ENTRIES AS THEY APPEAR ON THE PAYROLLS, MAY BE PASSED TO CREDIT IN HIS ACCOUNTS, SINCE HE HAD NO KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES CONNECTED WITH THE GUARDIANSHIP PROCEEDINGS, AN APPROPRIATE CHARGE TO BE STATED AGAINST THE CERTIFYING OFFICER INVOLVED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE TREASURY, AUGUST 25, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 30, 1939, AS FOLLOWS:

REFERENCE IS MADE TO GENERAL ACCOUNTING OFFICE NOTICES OF EXCEPTION DATED MAY 11, 1939, ON DISBURSING OFFICE VOUCHERS NO. 90253, JULY, 1937; NO. 266770, AUGUST, 1937; NO. 422749, SEPTEMBER, 1947; AND NO. 596193, OCTOBER, 1937, ALL IN ACCOUNTS OF G.F. ALLEN, CHIEF DISBURSING OFFICER, SYMBOL 101-100. REFERENCE IS ALSO MADE TO CLAIMS FOR BACK PAY IN FAVOR OF PAULA ESCOVIDO, AS GUARDIAN OF DOMINGO ESCOVIDO, OFFICERS' STEWARD, FIRST CLASS (RETIRED), UNITED STATES COAST GUARD, FOR THE PERIOD SEPTEMBER 1, 1932, TO JUNE 30, 1935, INCLUSIVE, IN THE AMOUNT OF $2,186.32, AND THE PERIOD JULY 1, 1935, TO JUNE 30, 1937, IN THE AMOUNT OF $1,663.20.

THE ABOVE EXCEPTIONS ARE APPARENTLY PREDICATED ON THE GROUND THAT THE COURT OF FIRST INSTANCE OF ILOILO, PHILIPPINE ISLANDS, WAS WITHOUT JURISDICTION TO APPOINT A GUARDIAN OF THE PERSON AND PROPERTY OF DOMINGO ESCOVIDO BECAUSE THE INCOMPETENT WAS NOT DOMICILED WITHIN THE PHILIPPINE ISLANDS. IN GENERAL ACCOUNTING OFFICE SETTLEMENT CERTIFICATE ADDRESSED TO PAULA ESCOVIDO UNDER DATE OF MARCH 30, 1938, IT IS STATED THAT: "THE DOMICILE OF THE INCOMPETENT HAVING BEEN AND REMAINING IN THE UNITED STATES, HE IS NOT WITHIN THE JURISDICTION OF THE PHILIPPINE COURT, PERSONAL SERVICE WAS NOT HAD UPON HIM AND UNDER YOUR APPOINTMENT AS GUARDIAN IN SUCH PROCEEDINGS YOU CANNOT GIVE A PROPER ACQUAINTANCE (SIC) TO UNITED STATES FOR THE AMOUNT DUE DOMINGO COVIDO.'

THIS DEPARTMENT IS OF THE OPINION THAT THE PHILIPPINE COURT DID HAVE JURISDICTION IN THE APPOINTMENT OF A GUARDIAN FOR DOMINGO ESCOVIDO. IT IS POINTED OUT THAT REAL PROPERTY BELONGING TO THE INCOMPETENT WAS LOCATED WITHIN THE TERRITORIAL JURISDICTION OF THE COURT, AND SERVICE BY PUBLICATION WAS HAD IN ACCORDANCE WITH THE PHILIPPINE LAW. IT IS A SETTLED RULE THAT A COURT MAY APPOINT A GUARDIAN OF THE PROPERTY OF A NONRESIDENT IF ASSETS ARE LOCATED WITHIN ITS TERRITORIAL JURISDICTION.

THIS DEPARTMENT ALSO IS OF THE OPINION THAT AVAILABLE INFORMATION IS INSUFFICIENT TO ESTABLISH THAT THE INCOMPETENT CHANGED HIS DOMICILE FROM THE PHILIPPINE ISLANDS TO A PARTICULAR STATE IN THE UNITED STATES OR THE DISTRICT OF COLUMBIA. DOMINGO ESCOVIDO LEFT THE PHILIPPINE ISLANDS WITH THE INTENTION OF ENLISTING IN THE U.S. NAVY. HE DID ENLIST IN THE UNITED STATES COAST GUARD ON DECEMBER 27, 1924, AND REMAINED IN THAT SERVICE UNTIL HIS RETIREMENT NOVEMBER 1, 1931. HE WAS COMMITTED TO ST. ELIZABETH'S HOSPITAL, WASHINGTON, D.C., ON JULY 18, 1931, AT THE RECOMMENDATION OF THE PUBLIC HEALTH SERVICE. DOMICILE IS NOT LOST BY A PROLONGED TEMPORARY RESIDENCE ABROAD. THE VENUS, 12 U.S. 253; MITCHELL V. U.S., 88 U.S. 350; PETITION OF OGANESOFF, 20 F. (2ND) 978; HARRIS V. HARRIS, 215 N.W. 661; EX PARTE CUNNINGHAM, 13 Q.B.D. 418.

IT LIKEWISE APPEARS WELL ESTABLISHED THAT THE UNITED STATES MAY SETTLE ITS OBLIGATIONS BY MAKING PAYMENTS TO A LEGAL REPRESENTATIVE APPOINTED BY A COURT OF COMPETENT JURISDICTION WHETHER SUCH JURISDICTION WAS BASED ON DOMICILE OR THE PRESENCE OF ASSETS. SEE WILKINS V. ELLETT, 108 U.S. 256 (1883); VAUGHN V. NORTHUP, 15 XPET. 1 (1841); MORRISON V. BERSHIRE LOAN AND TRUST COMPANY, 118 N.E. 256 ( MASS., 1883); RESTATEMENT OF THE CONFLICT OF LAWS, SECTION 480 (C) AND 482. THE SUPREME COURT IN THE CASE OF VAUGHN V. NORTHUP, SUPRA, IN REFERENCE TO DEBTS OWED BY THE UNITED STATES, SAID AT PAGE 6:

"* * * THE UNITED STATES, IN THEIR SOVEREIGN CAPACITY, HAVE NO PARTICULAR PLACE OF DOMICILE, BUT POSSESS, IN CONTEMPLATION OF LAW, AN UBIQUITY THROUGHOUT THE UNION; AND THE DEBTS DUE BY THEM ARE NOT TO BE TREATED LIKE THE DEBTS OF A PRIVATE DEBTOR, WHICH CONSTITUTE LOCAL ASSETS IN HIS OWN DOMICILE. ON THE CONTRARY, THE ADMINISTRATOR OF A CREDITOR OF THE GOVERNMENT, DULY APPOINTED IN THE STATE WHERE HE WAS DOMICILED AT HIS DEATH, HAS FULL AUTHORITY TO RECEIVE PAYMENT, AND GIVE A FULL DISCHARGE OF THE DEBT DUE TO HIS INTESTATE, IN ANY PLACE WHERE THE GOVERNMENT MAY CHOOSE TO PAY IT; WHETHER IT BE AT THE SEAT OF GOVERNMENT, OR AT ANY OTHER PLACE WHERE THE PUBLIC FUNDS ARE DEPOSITED.'

WHILE THESE LATTER AUTHORITIES RELATE TO THE DISCHARGE OF DEBTS DUE DECEDENTS, IT IS BELIEVED THAT THEIR REASONING IS EQUALLY APPLICABLE TO THE GUARDIANSHIP RELATION INVOLVED HERE.

IN VIEW OF THE FOREGOING, IT IS REQUESTED THAT CREDIT BE EXTENDED FOR PAYMENT OF THE VOUCHERS ENUMERATED ABOVE AND THAT THE CLAIMS DESCRIBED HEREIN BE ALLOWED.

THE CLAIM OF PAULA ESCOVIDO FOR RETIRED PAY DUE DOMINGO ESCOVIDO, OFFICERS' STEWARD, FIRST CLASS, UNITED STATES COAST GUARD, RETIRED, PREDICATED ON HER APPOINTMENT BY THE COURT OF FIRST INSTANCE OF ILOILO, SEVENTH JUDICIAL DISTRICT, PHILIPPINE ISLANDS, AS GUARDIAN OF THE PERSON AND PROPERTY OF THE RETIRED COAST GUARDSMAN WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE, DATED MARCH 30, 1938, FOR THE REASONS STATED YOUR LETTER, APPROXIMATELY 1 YEAR AND 3 MONTHS PRIOR TO THE RECEIPT OF YOUR LETTER AND SO FAR AS THE RECORD DISCLOSES THE CLAIMANT HAS NEVER QUESTIONED THE CORRECTNESS OF THE ACTION TAKEN IN THE SETTLEMENT ON THE LAW AND FACTS INVOLVED BY REQUESTING A REVIEW THEREOF. FOLLOWING THE ACTION TAKEN ON HER CLAIM IT APPEARS THAT AUDIT EXCEPTIONS WERE TAKEN TO THE PAYMENTS OF RETIRED PAY MADE BY THE DISBURSING OFFICER TO PAULA ESCOVIDO IN HER CAPACITY AS GUARDIAN OF DOMINGO ESCOVIDO FOR THE 4 MONTHS' PERIOD JULY 1 TO OCTOBER 31, 1937. YOUR LETTER REQUESTS THAT CREDIT FOR THESE DISBURSEMENTS BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICER. SECURE A PROPER UNDERSTANDING OF THE BASIS FOR DISALLOWING THE PAYMENTS IN THE DISBURSING ACCOUNT REQUIRES A CONSIDERATION, ALSO, OF THE CLAIM.

IT APPEARS THAT DOMINGO ESCOVIDO, PRESUMABLY A NATIVE OF THE PHILIPPINE ISLANDS, ENLISTED IN THE UNITED STATES COAST GUARD DECEMBER 27, 1924, AND WHILE SERVING THEREIN AS AN OFFICERS' STEWARD, FIRST CLASS, WAS ADMITTED TO ST. ELIZABETHS HOSPITAL ON JULY 18, 1931. IT IS REPORTED THAT HE WAS FOUND PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF DEMENTIA PRAECOX INCIDENT TO THE SERVICE AND WAS PLACED ON THE RETIRED LIST NOVEMBER 1, 1931, WITH RETIRED PAY AT THE RATE OF $69.30 PER MONTH FROM THAT DATE. HE INDORSED HIS RETIRED PAY CHECKS BEGINNING WITH THE FIRST CHECK ISSUED AND INCLUDING THAT FOR THE MONTH OF AUGUST 1932, AT WHICH TIME HE HAD APPROXIMATELY $700 TO HIS CREDIT AT ST. ELIZABETHS HOSPITAL FROM WHICH HE WAS ALLOWED TO DRAW ABOUT $10 PER MONTH FOR SPENDING MONEY AND FROM WHICH NECESSARY CLOTHING WAS PURCHASED FOR HIM. BEGINNING WITH THE RETIRED PAY CHECK FOR SEPTEMBER 1932, HE REFUSED TO INDORSE HIS RETIRED PAY CHECKS.

ON MAY 22, 1936, THE UNITED STATES COAST GUARD ADDRESSED A LETTER TO MRS. LOUISA BELARMENO, PONTEVEDRA, OCCIDENTAL NEGROS, PHILIPPINE ISLANDS, MOTHER OF DOMINGO ESCOVIDO, SETTING FORTH THE FACTS OUTLINED ABOVE AND SUGGESTING THAT SHE TAKE NECESSARY STEPS TO HAVE HERSELF OR SOMEONE INTERESTED IN HER SON APPOINTED LEGAL GUARDIAN OF HIS ESTATE. RETIRED PAY HAD ACCRUED FROM SEPTEMBER 1, 1932, TO MAY 31, 1936, AT $69.30 PER MONTH, LESS CERTAIN STATUTORY DEDUCTIONS, AMOUNTING TO $2,948.62. IT APPEARS, HOWEVER, THAT MRS. BELARMENO HAD DIED NOVEMBER 3, 1928.

BY LETTER DATED MARCH 4, 1937, PAULA ESCOVIDO INFORMED THE UNITED STATES COAST GUARD THAT SHE HAD FILED IN THE COURT OF FIRST INSTANCE OF ILOYLO "INCOMPETENCY PROCEEDINGS OF THE PERSON AND PROPERTY OF MY BROTHER DOMINGO ESCOVIDO," AND THAT THE COURT ON MARCH 2, 1937, HAD APPOINTED HER GUARDIAN OF THE PERSON AND PROPERTY OF SAID INCOMPETENT DOMINGO ESCOVIDO. UPON THE STRENGTH OF THAT APPOINTMENT SHE PRESENTED HER CLAIM FOR THE ACCRUED RETIRED PAY AND THE PERSONAL PROPERTY OF DOMINGO ESCOVIDO.

LUNACY PROCEEDINGS, INQUIRING INTO THE MENTAL CONDITION OF ONE SUSPECTED OF OR CHARGED WITH BEING OF UNSOUND MIND ARE JUDICIAL IN CHARACTER AND ORDINARILY ARE CONDUCTED BY A COURT OF COMPETENT JURISDICTION WHICH MAKES ITS DECISION UPON EXPERT AND OTHER ADMISSIBLE TESTIMONY OR UPON THE FINDINGS AND RECOMMENDATION OF A COMMISSION DE LUNATICO INQUIRENDO APPOINTED BY THE COURT FOR THE PURPOSE OF THE INQUIRY.

WHILE THE RECORDS OF THE PROCEEDINGS AND FINDINGS OF THE COAST GUARD RETIRING BOARD PRESUMABLY FOUND THE COAST GUARDSMAN INCAPACITATED FOR ACTIVE SERVICE AS AN INCIDENT OF THE SERVICE, AS A CONSEQUENCE OF WHICH HE WAS PLACED UPON THE RETIRED LIST OF THE COAST GUARD, TITLE 14, U.S. CODE, SECTIONS 168 ET SEQ., IT APPEARS OBVIOUS THAT THE INQUIRY OF THE RETIRING BOARD WAS PRIMARILY FOR THE PURPOSE OF DETERMINING WHETHER SUCH MENTAL CONDITION WAS SUFFICIENTLY SERIOUS TO INCAPACITATE HIM FROM ACTIVE SERVICE AND WHETHER IT WAS THE RESULT OF HIS OWN VICIOUS HABITS OR WAS AN INCIDENT OF THE SERVICE, THE DETERMINATION OF WHICH WOULD AFFECT HIS FUTURE STATUS AS TO RETIRED PAY AND HOSPITALIZATION AT GOVERNMENT EXPENSE. TITLE 24, U.S. CODE, SECTION 191. THE PROCEEDINGS OF THE BOARD OBVIOUSLY WERE NOT "LUNACY PROCEEDINGS" WITHIN THE LEGAL MEANING OF THAT TERM AND WERE NOT A COMPETENT SUBSTITUTE THEREFOR FOR ANY PURPOSE OTHER THAN THOSE SPECIFIED IN THE STATUTES AND THE FINDINGS WERE NOTHING MORE THAN AN ADMINISTRATIVE DETERMINATION OF THE MAN'S INABILITY TO CONTINUE IN THE SERVICE, WHETHER HE WAS TO BE DROPPED, OR PLACED ON THE RETIRED LIST WITH PAY.

THE ORDER OF THE COURT OF FIRST INSTANCE, SEVENTH JUDICIAL DISTRICT, ILOILO, PHILIPPINE ISLANDS, CERTIFIED COPIES ON TRANSLATIONS OF WHICH APPEAR WITH THE PAPERS, WAS ENTERED ON MARCH 2, 1937, AND WAS WORDED AS FOLLOWS:

THIS MATTER IS BEFORE THIS COURT UPON THE PETITION FILED BY PAULA ESCOVIDO PRAYING THAT SHE BE APPOINTED GUARDIAN OF THE PERSON AND PROPERTY OF HER BROTHER DOMINGO ESCOVIDO, ALLEGED IN SAID PETITION TO BE A PERSON OF UNSOUND MIND.

THE SAID PETITION WAS SET FOR HEARING BEFORE THIS COURT ON THE 19TH DAY OF FEBRUARY 1937, AT EIGHT O-CLOCK A.M., AND DUE NOTICE THEREOF WAS PUBLISHED BY ORDER OF THE COURT IN THE NEWSPAPER ,1EL TIEMPO," A DAILY PUBLICATION EDITED AND PUBLISHED IN THE CITY OF ILOILO, PROVINCE OF ILOILO, P.I., AND OF GREAT CIRCULATION IN THE PHILIPPINE ISLANDS, ONCE A WEEK FOR THREE CONSECUTIVE WEEKS PRIOR TO THE DATE SET FOR THE HEARING OF THE SAID PETITION.

THE CASE COMING ON TO BE HEARD AT THE TIME AND PLACE SET FOR THE HEARING OF THE PETITION, THE PETITIONER APPEARED IN PERSON AND BY COUNSEL. NOBODY APPEARED TO OPPOSE THE PETITION.

THE EVIDENCE SUBMITTED BY THE PETITIONER HAS ESTABLISHED, TO THE SATISFACTION OF THIS COURT, THE FOLLOWING FACTS: (A) THAT DOMINGO ESCOVIDO, BROTHER OF THE PETITIONER, LEFT THE ISLANDS SEVERAL YEARS AGO AND ENLISTED HIMSELF IN THE U.S. NAVY; (B) THAT SINCE JULY 18, 1931, DOMINGO ESCOVIDO HAS BEEN CONFINED AND HAS BEEN UNDER TREATMENT IN SAINT ELIZABETHS HOSPITAL, WASHINGTON, D.C., SUFFERING FROM "DEMENTIA PRAECOX," ACCORDING TO THE CERTIFICATE ANNEX "B" ISSUED BY DRS. META F. HALDEMAN AND MANSON B. PETTIT, PHYSICIANS ON THE STAFF OF SAINT ELIZABETHS HOSPITAL; (C) THAT THE SAID DOMINGO ESCOVIDO, BEING OF UNSOUND MIND, IS NOT COMPETENT TO CARE FOR EITHER HIS PERSON OR PROPERTY; (D) THAT BY REASON OF HIS BEING FOUND PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, THE SAID DOMINGO ESCOVIDO WAS RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST OF THE U.S. COAST GUARD WHERE HE WAS SERVING, EFFECTIVE NOVEMBER 1, 1931, WITH RETIRED PAY AT THE RATE OF $69.30 PER MONTH; (E) THAT THE RETIRED PAY DUE DOMINGO ESCOVIDO FOR THE PERIOD FROM SEPTEMBER 1, 1932, TO MAY 31, 1936, ACCORDING TO A LETTER, ANNEX "C," RECEIVED FROM W. H. WEBB, CHIEF, AUDIT AND PAYROLL SECTION, DIVISION OF FINANCE, U.S. COAST GUARD, AMOUNTS TO FIVE THOUSAND EIGHT HUNDRED NINETY-SEVEN PESOS AND TWENTY-FOUR CENTAVOS (P5,897.24) OR $2,948.62; (F) THAT BESIDES THIS AMOUNT, THE SAID DOMINGO ESCOVIDO IS ENTITLED TO HIS RETIRED PAY ACCRUED SINCE MAY 31, 1936, UNTIL THE PRESENT TIME; (G) THAT THE SAID DOMINGO ESCOVIDO HAS ALSO REAL PROPERTIES IN THE MUNICIPALITY OF PONTEVEDRA, PROVIDENCE OF NEGROS OCCIDENTAL, PHILIPPINE ISLANDS, BESIDES SOME PERSONAL BELONGINGS DEPOSITED AT THE SAINT ELIZABETHS HOSPITAL, WASHINGTON, D.C.; (H) THAT THE SAID DOMINGO ESCOVIDO IS DEFINITELY IN NEED OF FURTHER TREATMENT IN A MENTAL HOSPITAL, ACCORDING TO THE LETTER OF DR. H. C. WOLLEY, FIRST ASSISTANT PHYSICIAN OF SAINT ELIZABETHS HOSPITAL, DATED AUGUST 13, 1936, AND MARKED ANNEX "G; " (I) THAT THE PETITIONER IS THE ONLY NEAREST RELATIVE OF THE SAID DOMINGO ESCOVIDO, INASMUCH AS DOMINGO ESCOVIDO'S MOTHER, BY THE NAME OF LUISA BELARMENO, DIED NOVEMBER 3, 1928, AS MAY BE SEEN FROM THE CERTIFICATE OF DEATH, ATTACHED TO THE RECORD AND MARKED ANNEX "A; " AND (J) THAT THE PETITIONER IS QUALIFIED TO DISCHARGE THE DUTIES OF GUARDIAN OF THE PERSON AND THE PROPERTY OF THE SAID DOMINGO ESCOVIDO.

IN VIEW OF THE FOREGOING, IT IS HEREBY ORDERED THAT THE SAID PAULA ESCOVIDO BE AND SHE IS HEREBY APPOINTED GUARDIAN OF THE PERSON AND PROPERTY OF THE SAID INCOMPETENT DOMINGO ESCOVIDO, WITH THE POWERS AND DUTIES INHERENT IN THAT OFFICE; AND THAT UPON THE EXECUTION OF A BOND IN THE SUM OF FIVE HUNDRED PESOS (P500.00) WITH TWO SUFFICIENT SURETIES, APPROVED BY THE COURT, AND UPON TAKING AND FILING HER OATH OF OFFICE, LETTERS OF GUARDIANSHIP, UNDER THE SEAL OF THE COURT, BE ISSUED AND DELIVERED TO SAID PAULA ESCOVIDO. IT IS PLAIN FROM THE FOREGOING THAT DOMINGO ESCOVIDO WAS NOT WITHIN THE JURISDICTION OF THAT COURT HAVING BEEN CONFINED AT ST. ELIZABETHS HOSPITAL, IN THE DISTRICT OF COLUMBIA; THAT HIS PERSONAL PROPERTY, BEING ALSO AT ST. ELIZABETHS HOSPITAL WAS NOT WITHIN THE JURISDICTION OF THE COURT; THAT ALTHOUGH SUCH FACTS WERE KNOWN TO THE APPLICANT FOR GUARDIANSHIP AND PRESUMABLY WERE BROUGHT TO THE ATTENTION OF THE COURT THE ONLY "NOTICE" OF THE PROCEEDINGS GIVEN OR ATTEMPTED TO BE GIVEN TO ESCOVIDO SO FAR AS THE RECORD DISCLOSES WAS A PUBLICATION ONCE A WEEK FOR 3 WEEKS IN A NEWSPAPER PUBLISHED IN THE PHILIPPINE ISLANDS.

THE ADJUDICATION WAS MADE WHEN ESCOVIDO WAS NOT PRESENT, WITHOUT NOTICE TO HIM, WHEN HE WAS NOT WITHIN THE JURISDICTION OF THE COURT, AND WITHOUT HIS BEING REPRESENTED IN THE PROCEEDINGS IN ANY WAY.

LUNACY AND PROCEEDINGS FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON ARE PROCEEDINGS IN PERSONAM AND ALTHOUGH IT HAS BEEN HELD THAT JURISDICTION MAY BE OBTAINED OF ONE ALLEGED TO BE OF UNSOUND MIND WHO IS WITHIN THE JURISDICTION OF THE COURT AT THE TIME THE WRIT IS APPLIED FOR AND ISSUED WITHOUT SUCH PERSON BEING A RESIDENT OF THE STATE OR HAVING PROPERTY WITHIN THE STATE, ORDINARILY RESIDENCE WITHIN THE STATE IS NECESSARY FOR THE APPOINTMENT OF A GUARDIAN OVER THE PERSON, EVEN THOUGH SUCH PERSON MAY HAVE PROPERTY WITHIN THE JURISDICTION. IT HAS BEEN HELD THAT HE MUST BE ACTUALLY WITHIN THE JURISDICTION, THAT HE BE AN ACTUAL RESIDENT, THAT HE HAVE ACTUAL DOMICILE WITHIN THE JURISDICTION, AND THAT MERE LEGAL RESIDENCE, MERE DOMICILE, OR MERE LEGAL OR CONSTRUCTIVE DOMICILE IS INSUFFICIENT. SEE 32 C.J. 629, 630 AND NUMEROUS DECISIONS CITED. ONE OF THE LEADING CASES IS THAT OF RAHER V. RAHER, 150 IOWA 511, 35 L.R.A.N.S. 292. IN THAT CASE, SPECIAL PROCEEDINGS, IN WHICH A CITIZEN OF IOWA WAS ADJUDGED TO BE OF UNSOUND MIND AND A GUARDIAN WAS APPOINTED FOR HIS PROPERTY, WERE INSTITUTED IN THE DISTRICT COURT OF IOWA COUNTY, IOWA, AND PERSONAL SERVICE WAS MADE UPON THE ALLEGED INSANE PERSON WHILE HE WAS TEMPORARILY ABSENT FROM THE STATE. UPON A PETITION IN EQUITY TO SET ASIDE THE PROCEEDINGS, THE SUPREME COURT OF IOWA, IN REVERSING A JUDGMENT FOR THE DEFENDANT IN THE LOWER COURT, REVIEWED THE DECISIONS AT LENGTH, NOT ONLY WITH REFERENCE TO PERSONAL SERVICE WITHOUT THE JURISDICTION BUT, ALSO, WITH REFERENCE TO SERVICE BY PUBLICATION. THE COURT HELD THAT A PROCEEDING TO SECURE THE APPOINTMENT OF A GUARDIAN FOR ONE WHO IS OF UNSOUND MIND IS IN PERSONAM AND THAT PERSONAL SERVICE, AS DISTINCT FROM SERVICE BY PUBLICATION IS ESSENTIAL TO GIVE THE COURT JURISDICTION ALTHOUGH THE COURT WENT FURTHER AND DETERMINED THAT EVEN PERSONAL SERVICE ON THE SUSPECTED INCOMPETENT WITHOUT THE CONFINES OF THE STATE WAS NOT SUFFICIENT TO CONFER JURISDICTION OF HIS PERSON FOR THE PURPOSE OF LUNACY PROCEEDINGS. THE COURT QUOTED FROM THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN PENNOYER V. NEFF, 95 U.S. 714, IN WHICH IT WAS SAID:

* * * IF, WITHOUT PERSONAL SERVICE, JUDGMENTS IN PERSONAM OBTAINED EX PARTE AGAINST NONRESIDENTS AND ABSENT PARTIES, UPON MERE PUBLICATION OF PROCESS, WHICH, IN THE GREAT MAJORITY OF CASES, WOULD NEVER BE SEEN BY THE PARTIES INTERESTED, COULD BE UPHELD AND ENFORCED, THEY WOULD BE THE CONSTANT INSTRUMENTS OF FRAUD AND OPPRESSION. * * *

THE ORDER OF THE LOCAL PHILIPPINE COURT RECITES THAT THE PETITION OF PAULA ESCOVIDO FOR APPOINTMENT AS GUARDIAN OF THE PERSON AND PROPERTY OF DOMINGO ESCOVIDO WAS BASED UPON THE LATTER'S INCOMPETENCY AS A PERSON OF UNSOUND MIND AND, WHILE THE CONCLUSION OF THE COURT DOES NOT SPECIFICALLY SO STATE, THE NECESSARY EFFECT OF THE ORDER WAS TANTAMOUNT TO A DECLARATION THAT ESCOVIDO WAS A PERSON OF UNSOUND MIND THUS AFFECTING BOTH HIS PERSONAL AND PROPERTY RIGHTS.

PARTICULARLY APPROPRIATE FOR CITING IN CONNECTION WITH THE EX PARTE PROCEEDINGS HELD IN THE PHILIPPINE ISLANDS IS THE RECENT CASE OF BARRY V. HALL, 98 F./2D) 222, 230, DECIDED APRIL 11, 1938, BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA WHEREIN WAS QUOTED WITH APPROVAL FROM IN RE WELLMAN, 3 KAN. APP. 100, 45 P. 726, AS FOLLOWS:

INDEPENDENTLY OF STATUTES, EVERY PERSON IS ENTITLED TO HIS DAY IN COURT, AND TO THE RIGHT TO BE HEARD BEFORE HE IS CONDEMNED. NO MERE EX PARTE PROCEEDING CAN AFFECT EITHER PERSONAL OR PROPERTY RIGHTS. WERE THE LEGISLATURE TO ATTEMPT TO ENACT A LAW AUTHORIZING JUDICIAL PROCEEDINGS, THE OBJECT OF WHICH WAS TO AFFECT THE PERSON OR PROPERTY OF A CITIZEN, WITHOUT NOTICE OR OPPORTUNITY TO BE HEARD, SUCH LEGISLATION WOULD BE REJECTED AND REPUDIATED IN ADVANCE AS AN INTOLERABLE OUTRAGE UPON THE RIGHTS OF THE CITIZEN. IT WOULD NOT ONLY BE A SERIOUS INFRINGEMENT OF NATURAL RIGHTS, BUT WOULD BE A FLAGRANT VIOLATION OF THE CONSTITUTIONAL GUARANTY THAT NO PERSON SHALL BE DEPRIVED OF HIS LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW.

NOTICE AND OPPORTUNITY TO BE HEARD LIE AT THE FOUNDATION OF ALL JUDICIAL PROCEDURE. THEY ARE FUNDAMENTAL PRINCIPLES OF JUSTICE WHICH CAN NOT BE IGNORED. WITHOUT THEM NO CITIZEN WOULD BE SAFE FROM THE MACHINATIONS OF SECRET TRIBUNALS, AND THE MOST SANE MEMBER OF THE COMMUNITY MIGHT BE ADJUDGED INSANE AND LANDED IN A MADHOUSE. IT WILL NOT DO TO SAY THAT IT IS USELESS TO SERVE NOTICE UPON AN INSANE PERSON; THAT IT WOULD AVAIL NOTHING BECAUSE OF HIS INABILITY TO TAKE ADVANTAGE OF IT. HIS SANITY IS THE VERY THING TO BE TRIED. AT THE THRESHOLD OF THE INQUIRY THE COURT IS SUPPOSED TO HAVE NO KNOWLEDGE OF THE MENTAL CONDITION, BUT THE PRESUMPTION OF THE LAW IS IN FAVOR OF SANITY. INSANITY, LIKE CRIME, DOES NOT EXIST IN LAW UNTIL IT IS ESTABLISHED BY EVIDENCE IN A PROPER PROCEEDING. A TRIAL WITHOUT NOTICE--- A MERE EX PARTE PROCEEDING--- HAS NO PROPER PLACE IN A COURT OF JUSTICE. IT IS A NULLITY, AND VOID AS AFFECTING THOSE NOT PARTIES TO IT.

WHILE THAT CASE WAS ONE INVOLVING COMMITMENT AS DISTINCT FROM PROCEEDINGS FOR GUARDIANSHIP OF INCOMPETENTS, THE COURT RECOGNIZED THAT PROPERTY RIGHTS OF THE ALLEGED INCOMPETENT NECESSARILY WERE ALSO AFFECTED.

DIRECTLY APPLICABLE TO THE FACTS IN THE INSTANT CASE ARE THOSE CONSIDERED IN THE CASE OF MARTIN V. WHITE DECIDED BY THE UNITED STATES CIRCUIT COURT OF APPEALS, FOR THE NINTH CIRCUIT, 76 C.C.A. 671, 146 F. 461. THE ACTION IN THAT CASE WAS EJECTMENT BY ONE BADGER, ALLEGED GUARDIAN OF WHITE, TO RECOVER POSSESSION OF PROPERTY SITUATED IN FAIRBANKS, ALASKA. IT APPEARS THAT ONE LONG, A FRIEND AND ACQUAINTANCE OF WHITE, PRESENTED A PETITION TO THE COMMISSIONER AND EX OFFICIO JUDGE OF THE FAIRBANKS PRECINCT SETTING FORTH THAT WHITE THE OWNER OF PROPERTY THEREIN SITUATED HAD BEEN INSANE WHEN HE LEFT FAIRBANKS AND WAS IN THAT CONDITION OF MIND AT THE TIME OF FILING THE PETITION; THE PETITION FURTHER STATED THAT MARTIN HAD TAKEN POSSESSION OF THE PROPERTY OF WHITE AND PRAYED ,THE COURT TO ORDER A HEARING AFTER SUCH NOTICE AS MAY BE DEEMED SUFFICIENT, AND AFTER SUCH HEARING THAT THE COURT APPOINT SOME SUITABLE PERSON AS GUARDIAN OF THE SAID ANDREW WHITE, IF IT FINDS THAT HE BE INDEED INSANE, TO THE END THAT HIS PROPERTY MAY BE LOOKED AFTER AND HIS INTERESTS CONSERVED.' THE REPORTED FACTS ALSO SHOWED AS FOLLOWS:

ON READING THE PETITION, THE COMMISSIONER, ON APRIL 28, 1905, "ORDERED THAT MAY 9, 1905, AT 10 O-CLOCK A.M. BE FIXED AS THE TIME, AND THE COURTHOUSE IN FAIRBANKS, AS THE PLACE, FOR THE HEARING OF SAID PETITION, AND THE SAID PETITIONER IS ORDERED TO GIVE PUBLIC NOTICE OF THE TIME AND PLACE THEREOF BY A NOTICE PUBLISHED IN THE FAIRBANKS SEMIWEEKLY NEWS ONCE IN ITS ISSUE OF APRIL 29, 1905, AND BY POSTING A SIMILAR NOTICE IN THREE PUBLIC PLACES IN THE TOWN OF FAIRBANKS.' ON MAY 9, 1905, UPON PROOF THAT SUCH NOTICE HAD BEEN PUBLISHED AND POSTED AS DIRECTED BY SAID ORDER, IT WAS "ORDERED, ADJUDGED, AND DECREED THAT H. M. BADGER BE, AND HE IS HEREBY, APPOINTED GUARDIAN OF THE PERSON AND PROPERTY OF THE SAID ANDREW WHITE TO THE EXTENT AS TO PROPERTY THAT THE SAID ANDREW WHITE MAY OWN PROPERTY IN THE FAIRBANKS RECORDING DISTRICT," AND BE REQUIRED TO GIVE BONDS.

THE LOWER COURT IN HOLDING IN FAVOR OF THE GUARDIAN OF WHITE PROCEEDED INTER ALIA ON THE GROUND THAT THE STATUTES HAD BEEN COMPLIED WITH IN ALL ESSENTIAL PARTICULARS AND THAT THE JUDGMENT OF THE COMMISSIONER ADJUDGING WHITE TO BE OF UNSOUND MIND AND APPOINTING BADGER AS HIS GUARDIAN WAS CONCLUSIVE AND, THEREFORE, NOT SUBJECT TO COLLATERAL ATTACK. THE APPELLATE COURT, HOWEVER, IN REVERSING THE JUDGMENT OF THE LOWER COURT STATED:

WITHOUT STOPPING TO CRITICIZE THE PECULIAR STATEMENTS SET FORTH IN THE PETITION OF LONG, AND CONCEDING, FOR THE PURPOSE OF THIS OPINION THAT, DEFECTIVE AS IT IS IN ALMOST EVERY ESSENTIAL PARTICULAR, IT WAS SUFFICIENT TO AUTHORIZE THE COMMISSIONER TO PROCEED ACCORDING TO LAW TO GIVE NOTICE TO WHITE OF THE PENDENCY OF THE PROCEEDINGS, AND OF THE TIME AND PLACE WHEN A HEARING WOULD BE HAD THEREON, WAS ANY SUCH NOTICE GIVEN$ THE SUGGESTION IS MADE ON BEHALF OF THE DEFENDANT IN ERROR THAT SECTION 896 DOES NOT PROVIDE WHAT STEPS SHALL BE TAKEN TO SERVE THE NOTICE ON THE PERSON SUPPOSED OR BELIEVED BY THE PETITIONER TO BE INSANE. THE STATUTE MUST RECEIVE A SENSIBLE CONSTRUCTION. THE STATUTE SAYS THAT "THE COMMISSIONER SHALL CAUSE NOTICE TO BE GIVEN TO THE SUPPOSED INSANE PERSON OF THE TIME AND PLACE APPOINTED FOR HEARING THE CASE.' IF WHITE, THE ALLEGED INSANE OR INCOMPETENT PERSON, RESIDED IN FAIRBANKS PRECINCT, DOES NOT THIS LANGUAGE MEAN THAT THE NOTICE SHOULD BE PERSONALLY SERVED UPON THE INDIVIDUAL TO BE AFFECTED THEREBY? THE LANGUAGE OF SECTION 896 IS NOT SUSCEPTIBLE OF ANY OTHER CONSTRUCTION. THERE WAS NO NOTICE GIVEN TO WHITE IN COMPLIANCE WITH THE PROVISIONS OF THE STATUTE UNDER WHICH THE COMMISSIONER ACTED. THE "PUBLIC NOTICE" OF THE TIME AND PLACE OF THE HEARING IN A NEWSPAPER, OR BY POSTING A SIMILAR NOTICE IN THREE PUBLIC PLACES IN THE TOWN OF FAIRBANKS, WAS NOT SUCH A NOTICE AS THE STATUTE REQUIRES. WHITE DID NOT APPEAR AT THE HEARING. THE PROCEEDINGS THEN HAD WERE EX PARTE, WITHOUT AUTHORITY OF LAW, AND VOID * * * (HERE FOLLOWS CITATIONS OF NUMEROUS AUTHORITIES BY BOTH FEDERAL AND STATE COURTS INCLUDING THAT OF SMITH V. BURLINGAME, 4 MASON, 121 FED. CAS. NO. 13,017).

IN THE LATTER CASE IT WAS STATED BY JUSTICE STOREY IN PART AS FOLLOWS:

* * * THE COURTS OF PROBATE HAVE NO RIGHT TO PUT A PERSON UNDER GUARDIANSHIP, AS UNFIT TO MANAGE HER AFFAIRS, WITHOUT NOTICE TO THE PARTY, AND AN ADJUDICATION ON THE FACTS; AND UNTIL SUCH ADJUDICATION, NO LETTERS OF GUARDIANSHIP CAN LEGALLY BE ISSUED. * * *

IN VIEW OF THE DECIDED CASES ON THE PRECISE POINT INVOLVED IT DOES NOT APPEAR TO BE OPEN FOR SERIOUS QUESTION THAT THE ACTION TAKEN BY THE LOCAL PHILIPPINE COURT PRESUMING TO ADJUDGE DOMINGO ESCOVIDO OF UNSOUND MIND AND TO APPOINT A GUARDIAN OF HIS PERSON AND ESTATE, WITHOUT COMPLIANCE WITH THE NECESSARY REQUISITES OF PERSONAL SERVICE, IS A NULLITY INSOFAR AS REQUIRING THE UNITED STATES TO PAY TO SUCH GUARDIAN THE ACCUMULATED AND RECURRING INSTALLMENTS OF RETIRED PAY DUE THE ALLEGED INCOMPETENT AS A RETIRED MEMBER OF THE UNITED STATES COAST GUARD.

THERE HAVE NOT BEEN OVERLOOKED THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, INCLUDING THE CASE OF VAUGHN V. NORTHUP 15 PETERS 1, CITED IN YOUR LETTER, TO THE EFFECT THAT DEBTS DUE BY THE UNITED STATES HAVE NO PARTICULAR SITUS AND THAT THE ADMINISTRATOR OF A CREDITOR OF THE GOVERNMENT, DULY APPOINTED IN THE STATE WHERE HE WAS DOMICILED AT THE TIME OF HIS DEATH, HAS FULL AUTHORITY TO RECEIVE PAYMENT AND GIVE A FULL DISCHARGE OF THE DEBT DUE TO HIS INTESTATE, IN ANY PLACE WHERE THE GOVERNMENT MAY CHOOSE TO PAY IT, WHETHER IT BE AT THE SEAT OF GOVERNMENT, OR AT ANY OTHER PLACE WHERE THE PUBLIC FUNDS ARE DEPOSITED. IF THE INSTANT MATTER INVOLVED THE CLAIM OF AN ADMINISTRATOR OF A DECEASED CREDITOR OF THE UNITED STATES, DULY QUALIFIED IN THE PROPER FORUM OF THE CREDITOR'S DOMICILE AT THE TIME OF HIS DEATH, FOR PAYMENT OF MONEYS DUE TO THE ESTATE OF A DECEDENT, A DIFFERENT QUESTION WOULD BE PRESENTED. BUT SUCH IS NOT THE CASE. THERE IS HERE AN UNDERTAKING BY A COURT TO DETERMINE THE INCOMPETENCE OF AND TO APPOINT A GUARDIAN FOR THE PERSON AND PROPERTY OF A LIVING PERSON, WHEN IT IS APPARENT UPON THE FACE OF THE RECORD THAT THE COURT DID NOT HAVE JURISDICTION OF EITHER THE PERSON OR PERSONAL PROPERTY OF THE SUBJECT. THERE WOULD APPEAR TO BE NO DOUBT THAT THE PROCEEDINGS WERE VOID; THAT THE GUARDIAN IS NOT "DULY QUALIFIED; " THAT THE PROCEEDINGS WERE WITHOUT FORCE TO BIND DOMINGO ESCOVIDO EITHER IN HIS PERSON OR PROPERTY IN ANY WAY, MARTIN V. WHITE, SUPRA, AND THAT PAYMENTS TO HER WOULD NOT AFFORD THE GOVERNMENT A GOOD ACQUITTANCE AGAINST THE ALLEGED INCOMPETENT IF SANE, AGAINST A DULY APPOINTED GUARDIAN, OR AGAINST HIS PERSONAL REPRESENTATIVE UPON HIS DEATH. THE SETTLEMENT OF MARCH 30, 1938, DISALLOWING THE CLAIM OF THE GUARDIAN MUST BE AND IS SUSTAINED.

WITH REFERENCE TO THE AUDIT ACTION IN THE ACCOUNTS OF THE DISBURSING OFFICER, IT IS NOTED FROM AN EXAMINATION THEREOF THAT NO COPIES OF THE LETTERS OF APPOINTMENT OF GUARDIAN ACCOMPANIED THE PAY ROLLS, THE CHECKS FOR RETIRED PAY HAVING BEEN DRAWN TO THE ORDER OF " PAULA ESCOVIDO GUARDIAN OF DOMINGO ESCOVIDO OF STD. C. RET.' IN EXACT ACCORDANCE WITH THE ENTRIES AS THEY APPEAR ON THE PAY ROLLS. SINCE THE DISBURSING OFFICER HAD NO KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES CONNECTED WITH THE GUARDIANSHIP PROCEEDINGS, CREDIT FOR THESE PAYMENTS WILL BE ALLOWED IN HIS ACCOUNTS. SEE 4 COMP. GEN. 991. HOWEVER, AN APPROPRIATE CHARGE WILL BE STATED AGAINST THE CERTIFYING OFFICER.