A-9906, JULY 28, 1925, 5 COMP. GEN. 64

A-9906: Jul 28, 1925

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THE AMOUNT PROPERLY DUE UNDER THE CERTIFICATE IS PAYABLE TO THE ESTATE OF THE DESIGNATED BENEFICIARY. 1925: I HAVE YOUR LETTER OF MAY 28. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED TO H. TO WHOM WAS ISSUED AN ADJUSTED SERVICE CERTIFICATE UNDER THE PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT OF MAY 19. WHO WAS A VETERAN OF THE WORLD WAR. THERE WAS ISSUED TO SAID VETERAN ADJUSTED SERVICE CERTIFICATE NO. 1202275. THE MATERIAL PART OF WHICH READS AS FOLLOWS: "IT IS HEREBY CERTIFIED THAT PURSUANT TO THE WORLD WAR ADJUSTED COMPENSATION ACT AND IN CONFORMITY WITH THE LAWS OF THE UNITED STATES. WHOSE ADDRESS IS ROCKINGHAM. EXCEPT THAT IF SUCH BENEFICIARY DIES BEFORE THE VETERAN AND NO NEW BENEFICIARY IS NAMED.

A-9906, JULY 28, 1925, 5 COMP. GEN. 64

VETERANS' BUREAU - ADJUSTED SERVICE CERTIFICATE - ESTATE OF DESIGNATED BENEFICIARY WHERE THE DESIGNATED BENEFICIARY OF A VETERAN TO WHOM AN ADJUSTED SERVICE CERTIFICATE HAS BEEN ISSUED UNDER THE PROVISIONS OF SECTION 501 OF THE WORLD WAR ADJUSTED COMPENSATION ACT OF MAY 19, 1924, 43 STAT. 125, DIES SUBSEQUENT TO THE VETERAN, BUT PRIOR TO RECEIVING PAYMENT UNDER THE CERTIFICATE, THE AMOUNT PROPERLY DUE UNDER THE CERTIFICATE IS PAYABLE TO THE ESTATE OF THE DESIGNATED BENEFICIARY.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JULY 28, 1925:

I HAVE YOUR LETTER OF MAY 28, 1925, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED TO H. S. LEDBETTER, JR., ADMINISTRATOR OF THE ESTATE OF H. S. LEDBETTER, SR., BENEFICIARY DESIGNATED BY ROBERT S. LEDBETTER, DECEASED VETERAN, TO WHOM WAS ISSUED AN ADJUSTED SERVICE CERTIFICATE UNDER THE PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT OF MAY 19, 1924, 43 STAT. 121, 125.

YOU STATE THE FACTS AS FOLLOWS:

ROBERT S. LEDBETTER, WHO WAS A VETERAN OF THE WORLD WAR, IN NOVEMBER, 1924, APPLIED FOR THE BENEFITS ARISING UNDER THE WORLD WAR ADJUSTED COMPENSATION ACT. IN HIS APPLICATION HE DESIGNATED AS HIS BENEFICIARY HIS FATHER, HAL STEELE LEDBETTER. UNDER DATE OF JANUARY 1, 1925, THERE WAS ISSUED TO SAID VETERAN ADJUSTED SERVICE CERTIFICATE NO. 1202275, THE MATERIAL PART OF WHICH READS AS FOLLOWS:

"IT IS HEREBY CERTIFIED THAT PURSUANT TO THE WORLD WAR ADJUSTED COMPENSATION ACT AND IN CONFORMITY WITH THE LAWS OF THE UNITED STATES, THE AMOUNT HEREIN NAMED, TWELVE HUNDRED SIXTY-THREE DOLLARS, $1,263.00, LESS ANY INDEBTEDNESS INCLUDING INTEREST, LAWFULLY INCURRED AND DUE HEREON, SHALL BECOME DUE AND PAYABLE ON THE FIRST DAY OF JANUARY, 1945, TO ROBERT S. LEDBETTER, A-2527561, WHOSE ADDRESS IS ROCKINGHAM, N.C., HEREIN REFERRED TO AS THE VETERAN, OR, UPON THE DEATH OF THE VETERAN PRIOR TO THE DUE DATE ABOVE NAMED, THE AMOUNT HEREINABOVE STATED SHALL BECOME DUE AND PAYABLE TO THE BENEFICIARY NAMED BY THE VETERAN, EXCEPT THAT IF SUCH BENEFICIARY DIES BEFORE THE VETERAN AND NO NEW BENEFICIARY IS NAMED, OR IF THE BENEFICIARY IN THE FIRST INSTANCE HAS NOT BEEN NAMED, THEN THE AMOUNT AS STATED WILL BECOME DUE AND PAYABLE TO THE ESTATE OF THE VETERAN.'

ROBERT S. LEDBETTER DIED ON THE TWENTY-THIRD DAY OF JANUARY, 1925. HIS FATHER, THE BENEFICIARY, SURVIVED. BEING IN FAILING HEALTH TO SUCH AN EXTENT THAT HE COULD NOT EVEN BE NOTIFIED OF THE DEATH OF HIS SON, HE DIED ON MARCH 12, 1925. H. S. LEDBETTER, JR., HAS BEEN APPOINTED, AND HAS QUALIFIED, AS THE ADMINISTRATOR OF H. S. LEDBETTER, SR., THE NOMINATED BENEFICIARY OF SAID VETERAN, AND HAS MADE CLAIM FOR THE BENEFITS ARISING UNDER SAID CERTIFICATE * * *.

TITLE II OF THE WORLD WAR ADJUSTED COMPENSATION ACT OF MAY 19, 1924, 43 STAT. 122, PROVIDES FOR "ADJUSTED SERVICE CREDIT" BASED ON THE LENGTH OF MILITARY OR NAVAL SERVICE OF THE VETERAN, ETC. TITLE III, SECTION 301, GRANTS TWO DISTINCT BENEFITS TO THE VETERANS, VIZ:

(1) TO RECEIVE "ADJUSTED SERVICE PAY" AS PROVIDED IN TITLE IV, IF THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT IS $50 OR LESS;

(2) TO RECEIVE AN "ADJUSTED SERVICE CERTIFICATE" AS PROVIDED IN TITLE V IF THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT IS MORE THAN $50.

IN THIS CASE THE AMOUNT OF THE ADJUSTED SERVICE CREDIT CERTIFIED BY THE SECRETARY OF WAR AS DUE ROBERT S. LEDBETTER WAS MORE THAN $50, SO THAT BENEFIT (2) ONLY IS HERE INVOLVED. TITLE V, SECTION 501, PROVIDES AS FOLLOWS:

THE DIRECTOR, UPON CERTIFICATION FROM THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, AS PROVIDED IN SECTION 303, IS HEREBY DIRECTED TO ISSUE WITHOUT COST TO THE VETERAN DESIGNATED THEREIN A NONPARTICIPATING ADJUSTED SERVICE CERTIFICATE (HEREINAFTER IN THIS TITLE REFERRED TO AS "CERTIFICATE") OF A FACE VALUE EQUAL TO THE AMOUNT IN DOLLARS OF 20-YEAR ENDOWMENT INSURANCE THAT THE AMOUNT OF HIS ADJUSTED SERVICE CREDIT INCREASED BY 25 PERCENTUM WOULD PURCHASE, AT HIS AGE ON HIS BIRTHDAY NEAREST THE DATE OF THE CERTIFICATE, IF APPLIED AS A NET SINGLE PREMIUM, CALCULATED IN ACCORDANCE WITH ACCEPTED ACTUARIAL PRINCIPLES AND BASED UPON THE AMERICAN EXPERIENCE TABLE OF MORTALITY AND INTEREST AT 4 PERCENTUM PER ANNUM, COMPOUNDED ANNUALLY. THE CERTIFICATE SHALL BE DATED,AND ALL RIGHTS CONFERRED UNDER THE PROVISIONS OF THIS TITLE SHALL TAKE EFFECT, AS OF THE 1ST DAY OF THE MONTH IN WHICH THE APPLICATION IS FILED, BUT IN NO CASE BEFORE JANUARY 1, 1925. THE VETERAN SHALL NAME THE BENEFICIARY OF THE CERTIFICATE AND MAY FROM TIME TO TIME, WITH THE APPROVAL OF THE DIRECTOR, CHANGE SUCH BENEFICIARY. THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE (EXCEPT AS PROVIDED IN SUBDIVISIONS (C), (D), (E), AND (F) OF SECTION 502) SHALL BE PAYABLE OUT OF THE FUND CREATED BY SECTION 505 (1) TO THE VETERAN TWENTY YEARS AFTER THE DATE OF THE CERTIFICATE, OR (2) UPON THE DEATH OF THE VETERAN PRIOR TO THE EXPIRATION OF SUCH TWENTY-YEAR PERIOD, TO THE BENEFICIARY NAMED; EXCEPT THAT IF SUCH BENEFICIARY DIES BEFORE THE VETERAN AND NO NEW BENEFICIARY IS NAMED, OR IF THE BENEFICIARY IN THE FIRST INSTANCE HAS NOT YET BEEN NAMED, THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE SHALL BE PAID TO THE ESTATE OF THE VETERAN. IF THE VETERAN DIES AFTER MAKING APPLICATION UNDER SECTION 302, BUT BEFORE JANUARY 1, 1925, THEN THE AMOUNT OF THE FACE VALUE OF THE CERTIFICATE SHALL BE PAID IN THE SAME MANNER AS IF HIS DEATH HAD OCCURRED AFTER JANUARY 1, 1925.

THE STATUTE EXPRESSLY PROVIDES WHAT DISPOSITION IS TO BE MADE OF THE AMOUNT OF THE CERTIFICATE WHEN NO BENEFICIARY HAS BEEN NAMED OR WHEN THE DESIGNATED BENEFICIARY DIES FIRST. IN EITHER SUCH EVENT PAYMENT IS REQUIRED TO BE MADE TO THE ESTATE OF THE VETERAN. NO SPECIFIC PROVISION IS MADE IN THE STATUTE TO COVER A SITUATION SUCH AS HERE PRESENTED.

THE STATUTE GIVES THE VETERAN THE RIGHT TO DESIGNATE AND CHANGE THE BENEFICIARY WITH THE CONSENT OF THE DIRECTOR. THE DEATH OF THE VETERAN TERMINATES THE EXERCISE OF SUCH RIGHT, AND THE BENEFICIARY IS FIXED.

THE PRINCIPAL OF THE CERTIFICATE REPRESENTS AN AMOUNT BASED ON 20 YEAR ENDOWMENT LIFE INSURANCE. COMPARABLE TO SUCH INSURANCE I AM JUSTIFIED IN CONCLUDING THAT THE BENEFICIARY BEING FIXED THE RIGHTS UNDER THE CERTIFICATE ARE VESTED IN SUCH BENEFICIARY UNLESS THE STATUTE REQUIRES OTHERWISE.

THERE APPEARS NOTHING IN THE STATUTE FROM WHICH AN INTENT MAY BE IMPLIED NOT TO PAY THE AMOUNT OF A CERTIFICATE IN THE EVENT OF THE DEATH OF THE DESIGNATED BENEFICIARY BEFORE PAYMENT IS ACCOMPLISHED (SEE SEC. 1406 OF THE ACT OF FEBRUARY 24, 1919, 40 STAT. 1151). ON THE CONTRARY, THE PROVISIONS NEGATIVING PAYMENT TO THE ESTATE OF A BENEFICIARY WHO WHO PREDECEASES THE VETERAN OR OF A DEPENDENT WHO DIES BEFORE RECEIVING ALL INSTALLMENTS, COUPLED WITH THE PROVISION FOR PAYMENT ,TO THE BENEFICIARY NAMED" UPON THE DEATH OF THE VETERAN, INVOKES APPLICATION OF THE LEGAL MAXIM EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, OR, RATHER, EXPRESSIUM FACIT CESSARE TACITUM--- WHAT IS EXPRESSED MAKES WHAT IS SILENT TO CEASE.

YOU ARE ADVISED THAT PAYMENT IN THIS CASE IS AUTHORIZED OF THE AMOUNT OF THE CERTIFICATE, LESS ANY AUTHORIZED INDEBTEDNESS, TO H. S. LEDBETTER, JR., THE ADMINISTRATOR OF THE ESTATE OF H. S. LEDBETTER, SR., DECEASED, THE DESIGNATED BENEFICIARY OF ROBERT S. LEDBETTER, DECEASED.