A-9212, MAY 21, 1925, 4 COMP. GEN. 969

A-9212: May 21, 1925

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BURIAL EXPENSES OF VETERANS OF ANY WARS THE PAYMENT OF BURIAL EXPENSES OF A VETERAN OF ANY WAR WHICH THE VETERANS' BUREAU IS AUTHORIZED BY THE ACT OF MARCH 4. IS LIMITED TO AMOUNTS ACTUALLY AND NECESSARILY EXPENDED NOT IN EXCESS OF $100. THE EXPENDITURES WHICH MAY BE REIMBURSED AS BURIAL EXPENSES WHEN EXPRESSLY PERMITTED BY REGULATION AND WITHIN THE MAXIMUM AMOUNT ALLOWED BY THE LAW AND REGULATIONS MAY INCLUDE REASONABLE AND NECESSARY MINISTER'S FEE ANY REASONABLE AND NECESSARY PAYMENTS TO WATCHERS AND PALLBEARERS WHEN SUCH SERVICES ARE NOT PERFORMED GRATUITOUSLY. 1925: I HAVE YOUR LETTER OF APRIL 18. SECTION 8105 (2) PROPOSES TO PROVIDE AS FOLLOWS: (2) FOR THE PURPOSE OF THIS SECTION THE AMOUNT TO BE PAID BY THE BUREAU WILL NOT EXCEED THE DIFFERENCE BETWEEN ANY ASSETS LEFT BY THE DECEASED AND THE ACTUAL EXPENSES OF FUNERAL.

A-9212, MAY 21, 1925, 4 COMP. GEN. 969

BURIAL EXPENSES OF VETERANS OF ANY WARS THE PAYMENT OF BURIAL EXPENSES OF A VETERAN OF ANY WAR WHICH THE VETERANS' BUREAU IS AUTHORIZED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1305, TO MAKE WHEN THE DECEASED DID NOT LEAVE SUFFICIENT ASSETS TO MEET THE EXPENSES OF BURIAL, FUNERAL, AND TRANSPORTATION OF THE BODY, IS LIMITED TO AMOUNTS ACTUALLY AND NECESSARILY EXPENDED NOT IN EXCESS OF $100, EXCLUSIVE OF FLAG, AND NOT IN EXCESS OF THE DIFFERENCE BETWEEN $100 MAXIMUM AND THE AGGREGATE OF THE LESSER AMOUNT OF ASSETS, IF ANY, LEFT BY DECEASED AND THE AMOUNTS, IF ANY, ALLOWED FOR BURIAL OF THE DECEASED BY THE SEVERAL STATES OR OTHER POLITICAL SUBDIVISIONS, ORGANIZATION, OR HOMES. IN COMPUTING THE ASSETS LEFT BY A DECEASED VETERAN OF ANY WAR TO DETERMINE THE LIABILITY OF THE VETERANS' BUREAU FOR HIS BURIAL EXPENSES UNDER THE ACT OF MARCH 4, 1925, 43 STAT. 1305, THERE SHOULD NOT BE TAKEN INTO CONSIDERATION ANY ACCRUED PENSION, COMPENSATION, OR INSURANCE; ANY UNPAID BONUS FROM THE UNITED STATES OR ANY STATE OR OTHER POLITICAL SUBDIVISION WHEN NOT PAYABLE TO THE VETERAN'S ESTATE; ANY UNPAID AMOUNT UNDER THE ADJUSTED COMPENSATION ACT WHEN NOT PAYABLE TO THE VETERAN'S ESTATE; AND ANY AND ALL CLAIMS OF LIFE INSURANCE ON THE LIFE OF THE DECEASED PAYABLE TO A DESIGNATED BENEFICIARY UNLESS THE DESIGNATED BENEFICIARY TOOK OUT THE POLICY WITHOUT HAVING AN INSURABLE INTEREST IN THE LIFE OF THE DECEASED. THE EXPENDITURES WHICH MAY BE REIMBURSED AS BURIAL EXPENSES WHEN EXPRESSLY PERMITTED BY REGULATION AND WITHIN THE MAXIMUM AMOUNT ALLOWED BY THE LAW AND REGULATIONS MAY INCLUDE REASONABLE AND NECESSARY MINISTER'S FEE ANY REASONABLE AND NECESSARY PAYMENTS TO WATCHERS AND PALLBEARERS WHEN SUCH SERVICES ARE NOT PERFORMED GRATUITOUSLY.

ACTING COMPTROLLER GENERAL GINN TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MAY 21, 1925:

I HAVE YOUR LETTER OF APRIL 18, 1925, FORWARDING FOR CONSIDERATION AND APPROVAL PROPOSED REGULATIONS GOVERNING "BURIAL AND FUNERAL EXPENSES AND TRANSPORTATION OF BODIES OF VETERANS," NECESSITATED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1305, AMENDING THE WORLD WAR VETERANS' ACT.

EACH SECTION HAS BEEN GIVEN CONSIDERATION AND IN THE LIGHT OF CONTENTIONS MADE IN YOUR SUBMISSION RELATIVE TO PAST DECISIONS OF THIS OFFICE.

THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE PROPOSED SECTIONS 8102, 8103, 8104, 8106, AND 8108.

SECTION 8105 (2) PROPOSES TO PROVIDE AS FOLLOWS:

(2) FOR THE PURPOSE OF THIS SECTION THE AMOUNT TO BE PAID BY THE BUREAU WILL NOT EXCEED THE DIFFERENCE BETWEEN ANY ASSETS LEFT BY THE DECEASED AND THE ACTUAL EXPENSES OF FUNERAL, BURIAL, AND TRANSPORTATION OF THE BODY, SUCH DIFFERENCE NOT TO EXCEED $100.00, EXCLUSIVE OF FLAG.

THE DECISIONS OF THIS OFFICE GOVERNING PAST PRACTICE HAVE HELD THAT THE OBLIGATION OF THE GOVERNMENT FOR BURIAL EXPENSES IS ONLY FOR THE DIFFERENCE BETWEEN ANY ASSETS LEFT BY THE DECEASED AND THE SUM OF $100, EXCLUSIVE OF FLAG. 4 COMP. GEN. 501-503. YOU STATE THAT THE EFFECT OF THE QUOTED PROVISION WILL BE AS FOLLOWS:

UNDER THIS PROVISION IT WILL BE POSSIBLE TO PAY ANY AMOUNT UP TO $100.00 IN ANY CASE WHERE THE VETERAN, IN THE JUDGMENT OF THE DIRECTOR, LEAVES INSUFFICIENT ASSETS TO DEFRAY BURIAL AND FUNERAL EXPENSES. THE LANGUAGE OF THE AMENDMENT SURELY INDICATES AN INTENTION ON THE PART OF CONGRESS TO MAKE THE ALLOWANCE PAYABLE IN ANY CASE WHERE THE FACTS SHOW THAT THE ASSETS LEFT BY THE DECEASED ARE INADEQUATE TO DEFRAY FUNERAL AND TRANSPORTATION EXPENSES, LEAVING IT TO THE DIRECTOR TO DETERMINE WHEN THAT CONDITION EXISTS.

THE LANGUAGE OF THE ACT OF MARCH 4, 1925, SUPRA, TO WHICH YOU REFER, PROVIDES:

* * * AND DOES NOT IN THE JUDGMENT OF THE DIRECTOR LEAVE SUFFICIENT ASSETS TO MEET THE EXPENSES OF BURIAL AND FUNERAL AND THE TRANSPORTATION OF THE BODY, THE UNITED STATES VETERANS' BUREAU SHALL PAY * * * A SUM NOT EXCEEDING $100 TO COVER SUCH ITEMS AND TO BE PAID TO SUCH PERSON OR PERSONS AS MAY BE FIXED BY REGULATIONS * * *.

IT IS APPARENTLY YOUR CONTENTION THAT THE MAXIMUM OF $100 MAY BE PAID OVER AND ABOVE WHAT ASSETS MAY BE LEFT BY THE DECEASED IF THERE IS A DIFFERENCE OF $100 BETWEEN THE AMOUNT OF ASSETS LEFT AND THE ACTUAL EXPENDITURE FOR FUNERAL OR BURIAL EXPENSES. THE SUM OF $100 HAS EXPRESSLY BEEN FIXED AS THE MAXIMUM THE GOVERNMENT WILL PAY FOR THE BURIAL OF A PERSON DYING WHILE IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, OR FOR A VETERAN DYING WHILE UNDER THE JURISDICTION OF THE VETERANS' BUREAU, IN WHICH CASES SUFFICIENCY OF ASSETS IS NOT A FACTOR. AUTHORIZE PAYMENT BY THE GOVERNMENT TO THE FULL AMOUNT OF $100 IN CASES WHERE SUFFICIENCY OF ASSETS IS A FACTOR, WOULD TO A GREAT EXTENT DESTROY THE DISTINCTION WHICH CONGRESS HAS SOUGHT TO ESTABLISH BETWEEN THE TWO CLASSES. AN EXAMINATION OF THE HEARINGS ON THE ACT OF MARCH 4, 1925, PARTICULARLY THE STATEMENT OF THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU, DISCLOSES THAT THE AMOUNT OF $100 HAD BEEN DETERMINED TO BE THE REASONABLE COST OF A FUNERAL AND BURIAL TO THE GOVERNMENT. THE DIRECTOR ENDEAVORED BEFORE THE COMMITTEE TO SHOW THE NECESSITY FOR AND TO OBTAIN AN INCREASE OF $125, BUT HIS RECOMMENDATION WAS NOT ADOPTED. THE SAME LIMITATION OF $100 WAS MADE BOTH AS TO PERSONS BURIED BY THE GOVERNMENT AND IN PAYMENT OF CLAIMS FOR REIMBURSEMENT, BUT IN THE LATTER CASE WITH THE STIPULATION AS TO THE SUFFICIENCY OF ASSETS IN THE CLASS OF BENEFICIARIES SPECIFIED IN THE ACT. IN PRACTICALLY ALL STATES FUNERAL EXPENSES ARE PREFERRED CLAIMS AGAINST THE ESTATE OF THE DECEASED, AND IT IS BELIEVED THAT THIS IS WHAT CONGRESS HAD IN MIND WHEN REQUIRING THE ASSETS TO BE SHOWN IN CERTAIN CASES. ACCORDINGLY I AM CONSTRAINED TO HOLD THAT THE SUFFICIENCY OF ASSETS HAD RELATION TO THE LIMITATION OF $100 AND NOT TO THE TOTAL EXPENDITURE FOR THE FUNERAL OR BURIAL EXPENSES. SEE ALSO DECISION OF MAY 14, 1924, A-8265. I HAVE TO ADVISE THEREFORE THAT PARAGRAPH (2) OF SECTION 8105 SHOULD BE ELIMINATED ENTIRELY OR AMENDED TO READ AS FOLLOWS:

(2) FOR THE PURPOSE OF THIS SECTION THE AMOUNT TO BE PAID BY THE BUREAU WILL NOT EXCEED THE DIFFERENCE BETWEEN ANY ASSETS LEFT BY THE DECEASED AND THE SUM OF $100, EXCLUSIVE OF FLAG.

SECTION 8105 (6) PROPOSES TO PROVIDE AS FOLLOWS:

(6) IN DETERMINING THE SUFFICIENCY OF ASSETS FOR BURIAL AND FUNERAL EXPENSES UNDER THE PROVISIONS OF THIS SECTION THE FOLLOWING AMOUNTS WILL NOT BE TAKEN INTO CONSIDERATION:

(A) ACCRUED PENSION, COMPENSATION, AND INSURANCE.

(B) BONUS FROM THE UNITED STATES, ANY STATE, OR OTHER POLITICAL SUBDIVISION, WHEN NOT PAYABLE TO THE VETERAN'S ESTATE.

(C) ANY AMOUNT UNDER THE ADJUSTED COMPENSATION ACT, WHEN NOT PAYABLE TO THE VETERAN'S ESTATE.

(D) ANY AMOUNTS ALLOWED BY THE SEVERAL STATES, OR OTHER POLITICAL SUBDIVISIONS OF THE UNITED STATES, FOR BURIAL.

(E) AMOUNTS PROVIDED BY NATIONAL MILITARY HOMES.

(F) AMOUNTS PROVIDED BY THE WAR OR NAVY DEPARTMENTS, INCLUDING THE MARINE CORPS.

(G) ANY AND ALL CLASSES OF INSURANCE PAYABLE TO A DESIGNATED BENEFICIARY.

THE ITEMS UNDER (A) HAVE BEEN EXPRESSLY EXCLUDED FROM CONSIDERATION AS ASSETS BY THE CONTROLLING STATUTE. ASSUMING THAT THE ITEMS UNDER (B) AND (C) RELATE TO AMOUNTS UNPAID AT DATE OF DEATH THEY MAY NOT BE CONSIDERED AS ASSETS OF ESTATE OF DECEASED VETERAN. TO LEAVE NO ROOM FOR DOUBT AS TO WHAT IS INTENDED I SUGGEST THAT THE WORD UNPAID BE INSERTED BEFORE THE WORD BONUS" UNDER (B) AND AFTER THE WORD "ANY" UNDER (C). ITEMS UNDER (D) AND (E) ARE NOT ASSETS OF THE ESTATE, IT IS TRUE, BUT IT MUST BE BORNE IN MIND THAT A CLAIM AGAINST THE UNITED STATES LIES ONLY FOR AMOUNTS ACTUALLY EXPENDED ON BEHALF OF INDIGENT VETERANS, AND NO PAYMENT IS AUTHORIZED MERELY UPON THE SHOWING OF DEATH. IF THE BURIAL HAS BEEN TAKEN CARE OF FREE OF CHARGE BY A STATE OR OTHER POLITICAL SUBDIVISION OF THE UNITED STATES, OR BY A NATIONAL MILITARY HOME, NO CLAIM MAY BE ASSERTED AGAINST THE UNITED STATES BY THE RELATIVES OR PERSONAL REPRESENTATIVES OF THE DECEASED, EXCEPT FOR ACTUAL AND NECESSARY EXPENSES OVER AND ABOVE THE AMOUNTS ALLOWED BY THE STATE, OTHER POLITICAL SUBDIVISION, OR HOME, AND THE AMOUNT OF ASSETS LEFT BY THE DECEASED. THEREFORE THE PROVISION AS TO ITEMS (D) AND (E) SHOULD BE ELIMINATED UNDER PARAGRAPH (6) OF SECTION 8105, AND THERE SHOULD BE INSERTED UNDER PARAGRAPH (3) OF THE SAME SECTION, WHICH INCLUDES THE INFORMATION TO BE FURNISHED IN THE AFFIDAVIT BY RELATIVE OR FRIEND, THE FOLLOWING:

(H) WHETHER OR NOT EXPENSES OF THE BURIAL WERE ENTIRELY OR IN PART PAID BY A STATE OR OTHER POLITICAL SUBDIVISION, OR A NATIONAL MILITARY HOME.

RELATIVE TO ITEM (F) UNDER SECTION 8105 (6), I KNOW OF NO STATUTE WHICH AUTHORIZES THE WAR OR NAVY DEPARTMENTS TO PROVIDE ANY SUM FOR BURIAL EXPENSES OF VETERANS AFTER SEPARATION FROM THE SERVICE. THIS ITEM IS MISLEADING AND SHOULD BE OMITTED, AS IT MIGHT RESULT IN THE FILING OF USELESS CLAIMS IN THE WAR AND NAVY DEPARTMENTS OR IN THIS OFFICE.

IN CONNECTION WITH ITEM (G) UNDER SECTION 8105 (6) WHICH PROPOSES TO EXCLUDE FROM CONSIDERATION AS ASSETS "ANY AND ALL CLASSES OF INSURANCE PAYABLE TO A DESIGNATED BENEFICIARY" REFERENCE IS MADE TO 4 COMP. GEN. 501, 503, WHEREIN IT WAS HELD:

AS TO QUESTION 3, IF THE DESIGNATED BENEFICIARY HAD AN INSURABLE INTEREST IN THE LIFE OF THE DECEASED AND THE STATE LAWS DO NOT MAKE THE PROCEEDS OF THE POLICY SUBJECT TO THE BURIAL EXPENSES, SUCH PROCEEDS COULD NOT BE CONSIDERED ASSETS OF THE DECEASED SUCH AS WOULD BAR PAYMENT OF THE BURIAL EXPENSES BY YOUR BUREAU. HOWEVER, IF THE BENEFICIARY HAD NO INSURABLE INTEREST, ANY PROCEEDS OF THE POLICY IN EXCESS OF THE PREMIUM PAID BY THE BENEFICIARY ARE ASSETS OF THE ESTATE OF THE DECEASED AND MUST BE APPLIED TO HIS BURIAL EXPENSES * * *.

YOU STATE AS FOLLOWS:

IT HAS BEEN DIFFICULT FOR THIS BUREAU TO RECONCILE THIS STATEMENT OF THE LAW AS TO THE NECESSITY OF INSURABLE INTEREST WHERE THE INSURANCE IS TAKEN OUT BY THE PERSON INSURED WITH THE DOCTRINE LAID DOWN IN THE DECISIONS OF THE COURTS. THE LAW SEEMS WELL SETTLED THAT ONE HAS AN UNLIMITED INSURABLE INTEREST IN HIS OWN LIFE, AND THAT HE MAY TAKE OUT INSURANCE THEREON AND MAKE IT PAYABLE TO WHOM HE WILL. IT IS NOT NECESSARY THAT THE PERSON FOR WHOSE BENEFIT IT IS TAKEN OUT SHOULD HAVE AN INSURABLE INTEREST. * * *.

IT WAS NOT THE PURPOSE OR EFFECT OF THE DECISION QUOTED, SUPRA, TO QUESTION THE VALIDITY OF INSURANCE UPON THE GROUND THAT THE BENEFICIARY HAD NO INSURABLE INTEREST IN THE INSURED. THE DECISION HOLDS ONLY THAT THE PROCEEDS OF INSURANCE IN SUCH A CASE, OVER AND ABOVE THE AMOUNT OF PREMIUM PAID, SHOULD BE APPLIED TO PAYMENT OF BURIAL AND FUNERAL EXPENSES. IN VIEW OF THE AMENDMENTS TO THE LAW SINCE SAID DECISION WAS RENDERED, NO OBJECTION WILL BE MADE BY THIS OFFICE TO THE PROPOSED PROVISION IF CHANGED TO READ AS FOLLOWS:

(G) ANY AND ALL CLAIMS OF LIFE INSURANCE ON THE LIFE OF THE DECEASED PAYABLE TO A DESIGNATED BENEFICIARY, UNLESS THE DESIGNATED BENEFICIARY TOOK OUT THE POLICY WITHOUT HAVING AN INSURABLE INTEREST IN THE LIFE OF THE INSURED.

UNDER SECTION 8107 (1) IT IS PROPOSED TO MAKE PAYMENT OF CLAIMS FOR BURIAL EXPENSES, FIRST, TO THE PERSON OR FIRM PERFORMING THE SERVICE, AND, SECOND, TO THE REPRESENTATIVE OR RELATIVE OF THE DECEASED IF THE PERSON OR FIRM PERFORMING THE SERVICE HAS BEEN PAID. THIS WOULD APPEAR TO BE PROPER WHERE THE BURIAL, ETC., WAS ARRANGED DIRECTLY BETWEEN THE BUREAU AUTHORITIES AND THE PERSON OR FIRM PERFORMING THE SERVICE, AND MIGHT ALSO BE AUTHORIZED IN ALL CASES UNDER THE STATUTES, BUT I BELIEVE THAT GOVERNMENT'S INTEREST WOULD BE MORE CLOSELY SAFEGUARDED IN THE REIMBURSEMENT CASES WHERE THE SUFFICIENCY OF ASSETS IS A FACTOR BY REQUIRING THE PERSON OR FIRM PERFORMING THE SERVICE FIRST TO DEMAND PAYMENT FROM RELATIVES OR THE PERSONAL REPRESENTATIVE OF THE DECEASED, WHO ARE ABLE TO SHOW MORE ACCURATELY WHAT ASSETS HAVE BEEN LEFT, WHICH IS A REQUISITE TO ANY OBLIGATION OF THE GOVERNMENT. THIS SECTION SHOULD BE AMENDED ACCORDINGLY.

UNDER SECTION 8107 (2) ARE LISTED THE ITEMS AND ARTICLES CONSIDERED AS REASONABLE EXPENSES OF PREPARATION, BURIAL, AND FUNERAL. AMONG THESE ITEMS APPEAR "MINISTER'S FEE," "WATCHERS," AND "PALLBEARERS.' ORDINARILY THESE ITEMS DO NOT INVOLVE AN EXPENSE AND THE GOVERNMENT SHOULD BE PUT TO NO GREATER EXPENSE THAN AN INDIVIDUAL IN THIS REGARD, AND NO PAYMENT FOR THESE ITEMS SHOULD BE ALLOWED UNLESS IT IS DEFINITELY SHOWN AS A NECESSARY EXPENSE AS DISTINGUISHED FROM A GRATUITY, AND PARTICULARLY AS TO WATCHERS AND PALLBEARERS; THAT IS, THE SERVICE WAS NOT OTHERWISE OBTAINABLE, IN WHICH EVENT THE RECEIPTS OF THE MINISTER, WATCHERS, OR PALLBEARERS, AS THE CASE MAY BE, SHOULD BE PRESENTED. IF RETAINED IN THE REGULATIONS, THE WORD "NECESSARY" SHOULD BE INSERTED BEFORE THE THREE ITEMS IN QUESTION AND, FOR THE PURPOSE OF UNIFORMITY, A LIMIT AS TO THE AMOUNT FOR EACH SHOULD BE PRESCRIBED. 3 COMP. GEN. 723. THIS PARAGRAPH CONCLUDES WITH "* * * AND SUCH OTHER REASONABLE BURIAL AND FUNERAL EXPENSES AS MAY BE APPROVED BY THE OFFICER TO WHOM AUTHORITY IS DELEGATED BY THE DIRECTOR, NOT TO EXCEED THE MAXIMUM ALLOWED BY LAW.' THE BASIS FOR PAYMENT OF ITEMS UNDER THIS PROVISION MUST BE THE REASONABLENESS OF THE BURIAL AND FUNERAL EXPENSES, AND NOT NECESSARILY THE AUTHORIZATION OF THE BUREAU OFFICER.

IN PARAGRAPH (3) OF SECTION 8107 IT IS NOTED THAT SECTION 4078, REVISED STATUTES, IS STATED AS AUTHORIZING BURIAL OF VETERANS IN A NATIONAL CEMETERY. THE CORRECT CITATION IS SECTION 4878, REVISED STATUTES.