B-120351, AUG 9, 1954

B-120351, AUG 9, 1954

PRECIS-UNAVAILABLE

MRS. DOROTHY MAE HOWELL:

REFERENCE IS MADE TO A LETTER DATED MAY 10, 1954, WRITTEN ON YOUR BEHALF BY LIEUTENANT THOMAS, REGARDING YOUR CLAIM AS EXECUTRIX FOR THE AMOUNT DUE THE ESTATE OF YOUR LATE STEPSON, MARTIN F. HOWELL, JR., FIRST LIEUTENANT, USAF, FOR ARREARS OF PAY AND ALLOWANCES DUE AS OF JANUARY 31, 1954, THE PRESUMPTIVE DATE OF HIS DEATH IN THE MILITARY SERVICE. BY SETTLEMENT DATED MARCH 2, 1954, THE CLAIMS DIVISION OF THIS OFFICE ALLOWED SUCH ARREARS OF PAY AND ALLOWANCES, AMOUNTING TO $12,329.36, TO CHARLOTTE W. BELEW, 2511 PENNSYLVANIA AVENUE, N. W., APARTMENT NO. 2, WASHINGTON, D. C., AS MOTHER OF THE DECEDENT.

IN THE LETTER DATED MAY 10, 1954, IT IS STATED THAT ON JULY 30, 1953, A COPY OF THE DECEDENT'S WILL WAS FORWARDED TO THE DIRECTOR OF MILITARY PERSONNEL, UNITED STATES AIR FORCE; THAT ON FEBRUARY 11, 1954, YOUR CLAIM FOR THE ARREARS OF PAY AND ALLOWANCES WAS FORWARDED TO THE AIR FORCE FINANCE CENTER; THAT SUCH WILL WAS PROBATED ON APRIL 7, 1954; THAT MRS. BELEW DESERTED HER CHILDREN, INCLUDING THE DECEDENT, WHEN THEY WERE VERY YOUNG, DOING NOTHING DURING THE INTERVENING YEARS TO PROVIDE FOR THEIR WELFARE, TRAINING OR EDUCATION, NOR CORRESPONDING WITH THEM; AND THAT YOU REARED THE CHILDREN FROM INFANCY, HAVING THEIR FULL CUSTODY, CONTROL, TRAINING AND EDUCATION. IN VIEW OF THE FOREGOING, IT IS STATED THAT YOU ARE OF THE OPINION THAT ACTION SHOULD BE TAKEN BY THE GOVERNMENT TO RECOUP THE PAYMENT FROM MRS. BELEW.

ON FEBRUARY 8, 1954, THERE WAS RECEIVED IN THE CLAIMS DIVISION AN APPLICATION BY MRS. BELEW FOR THE ARREARS OF PAY AND ALLOWANCES DUE IN THE SETTLEMENT OF HER SON'S ACCOUNT, SUCH CLAIM BEING ASSERTED ON THE BASIS THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW OR DESCENDANT, AND THAT HIS FATHER WAS DEAD. SUBSEQUENTLY THERE WAS RECEIVED FROM THE DEPARTMENT OF THE AIR FORCE A REPORT OF DEATH AND A COPY OF THE DECEDENT'S PAY ACCOUNT.

THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, ALSO APPLICABLE TO MEMBERS OF THE AIR FORCE, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

"HEREAFTER IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE ARMY, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE DECEDENT'S WIDOW, WIDOWER, OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW OR WIDOWER; SECOND, IF DECEDENT LEFT NO WIDOW OR WIDOWER, OR THE WIDOW OR WIDOWER BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES; THIRD, IF NO WIDOW, WIDOWER, OR DESCENDANTS, THEN TO THE FATHER AND MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; ***"

NO DEMAND HAVING BEEN PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, AND THE REPORT OF THE DEATH SHOWING THAT THE DECEDENT WAS SURVIVED BY HIS MOTHER, THE AMOUNT OF $12,329.36, DETERMINED BY THE DEPARTMENT OF THE AIR FORCE, UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1001, TO BE DUE AS ARREARS OF PAY AND ALLOWANCES, WAS CERTIFIED FOR PAYMENT TO THE MOTHER BY THE SAID SETTLEMENT OF MARCH 2, 1954, PURSUANT TO THE ABOVE-QUOTED LAW.

BY LETTER DATED APRIL 19, 1954, THE CHIEF, CASUALTY BRANCH, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, ADVISED THE CLAIMS DIVISION OF THE EXISTENCE OF A WILL EXECUTED BY THE DECEDENT NAMING YOU AS BENEFICIARY AND EXECUTRIX, AND THAT NO FURTHER ACTION WOULD BE TAKEN BY THAT OFFICE TO RECOUP THE PAYMENT FROM MRS. BELEW. ALSO, THERE WAS TRANSMITTED YOUR CLAIM DATED FEBRUARY 11, 1954, AS STEPMOTHER FOR THE ARREARS OF PAY AND ALLOWANCES. THE LETTER OF APRIL 19, 1954, WAS THE FIRST NOTICE THIS OFFICE HAD OF THE EXISTENCE OF A WILL.

WHILE APPRECIATING YOUR FEELINGS IN THE MATTER, I TRUST YOU WILL UNDERSTAND THAT SINCE THE AMOUNT DUE IN THIS CASE WAS SETTLED IN STRICT COMPLIANCE WITH THE ACT OF FEBRUARY 25, 1946, THE GOVERNMENT'S DEBT TO THE DECEDENT'S ESTATE WAS COMPLETELY DISCHARGED, AND THERE IS FOUND NO LEGAL BASIS TO HOLD THAT THE GOVERNMENT HAS ANY FURTHER OBLIGATION IN THE MATTER. IN KEOWN V. UNITED STATES, 191 F. 2D 438, THE UNITED STATES CIRCUIT COURT OF APPEALS (EIGHTH CIRCUIT), AFFIRMED A JUDGMENT OF THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA (92 F. SUPP. 628) DISMISSING A SUIT BY THE EXECUTRIX OF THE ESTATE OF A DECEASED SOLDIER (ALSO HIS MOTHER AND SOLE TESTAMENTARY BENEFICIARY) AGAINST THE UNITED STATES FOR ARREARS OF PAY DUE AT THE TIME OF HIS DEATH, IT APPEARING THAT THE UNITED STATES PREVIOUSLY HAD MADE PAYMENT TO HIS WIDOW. THE COURT STATED:

"IT WAS THE (TRIAL) COURT'S VIEW THAT THE LANGUAGE OF THE STATUTE GAVE THE GENERAL ACCOUNTING OFFICE THE ABSOLUTE RIGHT AT ANY TIME, AFTER AUDITING AND ARRIVING AT THE AMOUNT DUE ON A DECEDENT'S ACCOUNT, TO MAKE PAYMENT THEREOF TO HIS WIDOW (OR TO THE OTHER MEMBERS OF HIS FAMILY ON THE BASIS OF THE PRECEDENCE SPECIFIED THEREIN), UNLESS, BEFORE SUCH PAYMENT WAS ACTUALLY MADE, THERE HAD BEEN PRESENTED A DEMAND THEREFOR BY 'A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE'; THAT IN THE PRESENT SITUATION NO DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE HAD OR COULD BE CLAIMED TO HAVE EXISTED, WITHIN THE PURVIEW AND PURPOSES OF THE STATUTE INVOLVED, UNTIL AFTER THE WILL HAD BEEN ADMITTED TO PROBATE, THE MOTHER'S NOMINATION IN THE WILL AS EXECUTRIX HAD BEEN APPROVED BY THE COURT, AND SHE HAD MADE THE NECESSARY OFFICIAL QUALIFICATION; THAT THE NOTICE AND REQUEST THERETOFORE SENT TO THE GENERAL ACCOUNTING OFFICE AND RECEIVED BY IT PRIOR TO THE MAKING OF PAYMENT TO THE WIDOW HAD THUS NOT CONSTITUTED A DEMAND BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE; AND THAT THE PAYMENT THEREFOR HAD BEEN ONE WHICH THE STATUTE AUTHORIZED THE GENERAL ACCOUNTING OFFICE TO MAKE AND WHICH ACCORDINGLY OPERATED TO DISCHARGE THE GOVERNMENT'S DEBT.

"WE CANNOT SAY THAT THIS READING AND APPLICATION OF THE STATUTE WERE ERRONEOUS. ***

"THE STATUTE THEREFORE CONSTITUTED A POLICY AND A SCHEME FOR MAKING SETTLEMENT OF THE GOVERNMENT'S INDEBTEDNESS FOR ARREARS OF PAY IN SITUATIONS OF DEATH IN ENLISTED MILITARY SERVICE. IN ESTABLISHING THIS STATUTORY SETTLEMENT POLICY AND SCHEME, CONGRESS, AS IT HAD A RIGHT TO DO, DID NOT SEE FIT TO REQUIRE A WAIT OR A DEPENDENCE OF ANY NATURE ON STATE PROCEEDINGS. NO LAPSE OF TIME WAS PRESCRIBED BEFORE PAYMENT WAS ENTITLED TO BE MADE, AND NO OTHER RESTRICTION WAS IMPOSED UPON THE GENERAL ACCOUNTING OFFICE IN THE MAKING OF SUCH A SETTLEMENT ON THE BASIS OF THE PRECEDENCE SET OUT IN THE STATUTE.

"IT IS TRUE THAT THE RECORD SHOWS THAT AS A MATTER OF POLICY AND PRACTICE THE GENERAL ACCOUNTING OFFICE HAS ORDINARILY WITHHELD PAYMENT TO FAMILY MEMBERS, WHERE NOTICE OF THE PENDENCY OF PROBATE OR ADMINISTRATION PROCEEDINGS HAS BEEN GIVEN IT. IN THIS RESPECT THE SLIP UP IN THE OFFICE AS TO THE RECEIPT OF THE NOTICE MAY SYMPATHETICALLY BE VIEWED AS HAVING BEEN PERHAPS UNFORTUNATE IN THE PRESENT SITUATION. BUT IT MUST BE REMEMBERED THAT THIS VIEWPOINT IS SIMPLY ONE OF HUMAN AND NOT OF LEGAL CONSIDERATION. THE GENERAL ACCOUNTING OFFICE CAN NOT BE SAID TO HAVE BEEN LEGALLY REQUIRED TO FOLLOW SUCH A POLICY AND PRACTICE, AND PRESUMABLY IT WOULD NOT DO SO IN A SITUATION OF ACUTE FINANCIAL DISTRESS. IN ANY EVENT, WE THINK THAT THE TRIAL COURT WAS ENTITLED TO HOLD THAT UNDER THE STATUTE THE GENERAL ACCOUNTING OFFICE WAS NOT WITHOUT AUTHORITY TO MAKE THE PAYMENT WHICH IT DID, AND THAT THE LIABILITY OF THE UNITED STATES FOR THE DECEDENT'S ARREARS OF PAY WAS THEREFORE LEGALLY DISCHARGED."

YOU MAY BE FURTHER ADVISED THAT IN THE CASE OF SCAMMAN V. SCAMMAN, 90 N. E. 2D 617, INVOLVING A SUIT BY THE EXECUTRIX OF THE ESTATE OF A DECEASED SOLDIER AGAINST HIS WIDOW FOR ARREARS OF PAY PREVIOUSLY PAID TO THE WIDOW BY THE UNITED STATES, THE COURT STATED:

"*** IN THE CASE AT BAR THE DECEDENT ENLISTED AND EARNED HIS MONEY AND IT WAS DUE THE EXECUTOR OR ADMINISTRATOR, HAD ONE BEEN APPOINTED AND HAD DEMAND BEEN MADE AT THE TIME HE WAS DECLARED LEGALLY DEAD. HE WAS DECLARED LEGALLY DEAD JANUARY 21, 1946, AND THE LAW WAS PASSED FEBRUARY 25, 1946; THE EXECUTOR WAS APPOINTED MARCH 19, 1946, AND DEFENDANT DEMANDED AND RECEIVED PAYMENT MAY 28, 1946, AFTER THE EXECUTRIX WAS APPOINTED, AND IT APPEARS BEFORE A DEMAND WAS MADE. A DEMAND ON THE ACCOUNTING OFFICER AFTER THE PAYMENT WAS MADE WOULD BE A FUTILE THING.

"THE PETITION SETS FORTH PLAINTIFF SEEKS TO RECOVER FROM DEFENDANT MONEY WHICH THE DEFENDANT HAS COLLECTED WHICH REALLY BELONGED TO THE PLAINTIFF AS EXECUTRIX. THE ACCOUNTING OFFICER HAD A RIGHT TO PAY EITHER ONE OF THEM, BUT DOES THAT GIVE THE ONE NOT ENTITLED TO THE FUND THE RIGHT TO RETAIN FOR HER OWN USE THE AMOUNT OF MONEY WHICH, BY THE VERY ACT ITSELF IS A PART OF THE ESTATE?

"FOLLOWING HOLMES V. ADAMS, SUPREME JUDICIAL COURT OF MAINE, DECISION DEC. 27TH, 1912. 'THE STATUTES IN FORCE AT THE TIME OF ONE'S DEATH GOVERN THE DISPOSITION OF HIS ESTATE.' THIS WAS REPORTED IN 110 ME. 167, 85 A. 492.

"THE ACT OF CONGRESS UNDER CONSIDERATION IN THE INSTANT CASE POSSESSES THE CHARACTERISTICS OF THE FAMILIAR 'FACILITY OF PAYMENT' CLAUSE FOUND IN MANY LIFE INSURANCE POLICIES.

"THE CASES AGREE THAT THE PURPOSE OF SUCH A CLAUSE IS TO PROTECT THE INSURER AND FACILITATE THE MANNER OF PAYMENT OF PROCEEDS BY THE INSURER, NOT TO DETERMINE THE RIGHT TO PROCEEDS AS BETWEEN CONFLICTING CLAIMS. THE CASE OF SMITH V. MASSIE, INC., 93 IND. APP. 582, 179 N. E. 20 AND LUTOSTANSKI V. LUTOSTANSKI, 120 CONN. 471, 181 A. 533, ARE CASES HOLDING THAT WHERE AN INSURER ACTING UNDER THE FACILITY OF PAYMENT CLAUSE MAKES PAYMENT TO A RELATIVE, THE RELATIVE BECOMES A TRUSTEE ACCOUNTABLE TO THE ESTATE OF THE INSURED. IT WOULD SEEM THAT THE SAME REASONING WOULD APPLY TO 10 U.S.C. A. SEC. 868. THE LEGISLATIVE HISTORY INDICATES THE PURPOSE OF THE ACT WAS MERELY TO FACILITATE PAYMENT AND PROTECT THE PAYING AUTHORITIES, AND NOT TO DETERMINE THE RIGHT TO PAY ALLOWANCES AS BETWEEN ADVERSE CLAIMANTS.

"YOU WILL NOTE THAT THE STATUTE PROVIDES 'WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICER MAY' AND SO FORTH. CERTAINLY THE STATUTE IN NO WAY IMPLIES THAT ALLOWANCES DUE A DECEASED VETERAN ARE NOT PART OF HIS ESTATE.

"THEREFORE, THE COURT IS OF THE OPINION THAT THE MONEY PAID BY THE ACCOUNTING OFFICER TO DEFENDANT, MARY E. SCAMMAN, THE WIDOW OF GEORGE E. SCAMMAN, DECEASED, WAS MONEY DUE TO THE DECEASED SOLDIER UNDER HIS CONTRACTUAL RIGHTS WITH THE GOVERNMENT AND WAS NOT A GRATUITY, AND UPON HIS DEATH WAS PART OF HIS ESTATE AND SHOULD BE A FUND OF THE ADMINISTRATOR OR EXECUTOR."

IN VIEW OF THE CLEAR PROVISIONS OF THE LAW AND THE DECISIONS OF THE COURTS, IT MUST BE CONCLUDED THAT THE PAYMENT TO THE DECEDENT'S MOTHER WAS A LEGAL PAYMENT AND, HENCE, THAT THERE WOULD BE NO LEGAL BASIS FOR THE GOVERNMENT TO RECOUP SUCH PAYMENT FROM HER.