B-121642, FEB 10, 1955

B-121642: Feb 10, 1955

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COUNSELLORS AT LAW: REFERENCE IS MADE TO LETTER OF OCTOBER 15. REGARDING YOUR CLAIM AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF WILLIAM TIMOTHY HALTON. ON THE BASIS THAT THE AIR FORCE FINANCE CENTER WAS AWARE OF THE DECEDENT'S WILL WHEN THE PAYMENT TO THE LEGAL GUARDIAN WAS MADE. IT APPEARS THAT THE WILL WAS ADMITTED TO PROBATE AND THAT YOU QUALIFIED AS EXECTRIX ON MAY 10. WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. SUCH REPORT WAS ACCOMPANIED BY AN OFFICIAL REPORT OF DEATH. IT ALSO SHOWED THAT HE WAS DIVORCED. A CERTIFIED COPY OF THE LETTERS OF GUARDIANSHIP WERE RECEIVED IN THE CLAIMS DIVISION ON APRIL 30. TO THE GUARDIAN WAS RELEASED TO THE AIR FORCE FOR ISSUANCE OF THE CHECK.

B-121642, FEB 10, 1955

PRECIS-UNAVAILABLE

MARY GLADYS HALTON, C/O PELLETREAU & PELLETREAU; COUNSELLORS AT LAW:

REFERENCE IS MADE TO LETTER OF OCTOBER 15, 1954, WRITTEN IN YOUR BEHALF BY MR. ROBERT H. PELLETREAU, REGARDING YOUR CLAIM AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF WILLIAM TIMOTHY HALTON, LATE COLONEL, UNITED STATES AIR FORCE, FOR THE PAY AND ALLOWANCES DUE THE DECEDENT AS OF DECEMBER 31, 1953, THE DATE OF RECEIPT OF EVIDENCE OF HIS DEATH IN THE SERVICE. APPEARS THAT $9,445.20 OF THE AMOUNT DUE HAS BEEN PAID TO ELIZABETH F. HARTWELL AS LEGAL GUARDIAN OF THE PERSON AND ESTATE OF ELIZABETH FRANSWORTH HALTON, MINOR CHILD OF THE LATE OFFICER, AND THE REMAINING BALANCE OF $250 HAS BEEN PAID TO YOU AS EXECUTRIX.

IN THE LETTER OF OCTOBER 15, 1954, MR. PELLETREAU RELATES SOME OF THE CIRCUMSTANCES OF THIS CASE; AND, ON THE BASIS THAT THE AIR FORCE FINANCE CENTER WAS AWARE OF THE DECEDENT'S WILL WHEN THE PAYMENT TO THE LEGAL GUARDIAN WAS MADE, WHICH PAYMENT HE SAYS HAS RESULTED IN A GRAVE INJUSTICE, HE REQUESTS A FULL REVIEW OF THE MATTER. IT APPEARS THAT THE WILL WAS ADMITTED TO PROBATE AND THAT YOU QUALIFIED AS EXECTRIX ON MAY 10, 1954.

THE ACT OF JUNE 30, 1906, AS AMENDED BY SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, ALSO APPLICABLE TO 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; FIFTH, IF THERE BE NO WIDOW, WIDOWER, CHILD, FATHER OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES ***."

UNDER DATE OF JANUARY 21, 1954, THE SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FORWARDED TO OUR CLAIMS DIVISION AN ADMINISTRATIVE REPORT OF THE PAY AND ALLOWANCE ACCOUNT OF COLONEL WILLIAM TIMOTHY HALTON, SERVICE NO. 8 510A, WHICH SHOWED A BALANCE OF $9,445.20 TO BE DUE AS OF THE DATE OF TERMINATION OF HIS CASUALTY STATUS UNDER THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED. SUCH REPORT WAS ACCOMPANIED BY AN OFFICIAL REPORT OF DEATH, SHOWING THAT HIS CASUALTY STATUS HAD TERMINATED DECEMBER 31, 1953. IT ALSO SHOWED THAT HE WAS DIVORCED, THAT HE HAD NAMED HIS FATHER, MR. EDWARD T. HALTON, CONNETQUOT ROAD, BAYPORT, LONG ISLAND, NEW YORK, AS HIS NEXT OF KIN, AND THAT HE HAD NAMED "ELIZABETH FARNSWORTH HALTON, DAUGHTER, C/O MRS. DONALD HARTWELL, 180 CYPRESS STREET, PROVIDENCE, RHODE ISLAND," AS PRIMARY BENEFICIARY TO RECEIVE THE SIX MONTHS' DEATH GRATUITY.

IN VIEW OF THE PROVISIONS OF THE ABOVE-QUOTED STATUTE AND THERE BEING NO WIDOW OR ANYTHING ELSE OF RECORD TO SUGGEST THAT SETTLEMENT OF THE AMOUNT REPORTED TO BE DUE SHOULD NOT BE MADE TO THE MINOR DAUGHTER, THE CLAIMS DIVISION IN A LETTER DATED FEBRUARY 2, 1954, ADVISED MRS. DONALD HARTWELL OF THE RECEIPT OF THOSE REPORTS AND REQUESTED THE LEGAL GUARDIAN OF THE MINOR TO EXECUTE AND RETURN AN ENCLOSED CLAIM FORM 14 TOGETHER WITH A CERTIFIED COPY OF THE LETTERS OF GUARDIANSHIP. THE EXECUTED FORM 14, CLAIMING THE AMOUNT DUE ON BEHALF OF THE MINOR, AND A CERTIFIED COPY OF THE LETTERS OF GUARDIANSHIP WERE RECEIVED IN THE CLAIMS DIVISION ON APRIL 30, 1954, AND ON MAY 7, 1954, PRIOR TO THE DATE OF YOUR APPOINTMENT AS EXECUTRIX, A SETTLEMENT AUTHORIZING PAYMENT OF THE AMOUNT OF $9,445.20, TO THE GUARDIAN WAS RELEASED TO THE AIR FORCE FOR ISSUANCE OF THE CHECK.

WHILE APPRECIATING YOUR FEELINGS IN THE MATTER, I TRUST YOU WILL UNDERSTAND THAT 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 APPEARED THAT THE UNITED STATES HAD PREVIOUSLY 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 THEREFORE 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 SLIPUP 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."

THE CASE OF SCAMMAN V. SCAMMAN, 90 N.E. 2D 617, INVOLVED 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. IN THAT CASE 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 LEGAL GUARDIAN WAS A LEGAL PAYMENT AND, HENCE, THAT THERE WOULD BE NO LEGAL BASIS FOR THE GOVERNMENT TO RECOUP SUCH PAYMENT FROM HER. WHETHER YOU, AS EXECUTRIX, SHOULD PROCEED BY SUIT OR OTHERWISE AGAINST THE PAYEE IS A QUESTION UPON WHICH WE MAY NOT PROPERLY ADVISE YOU.