B-131322, APR. 22, 1957

B-131322: Apr 22, 1957

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THOSE LETTERS WILL BE REGARDED AS REQUESTS FOR A REVIEW OF THE GOVERNMENT'S CLAIM IN THE AMOUNT OF $1. WAS AWARDED A PENSION BY THE VETERANS ADMINISTRATION. THE PENSION PAYMENTS WERE TO BE AT THE RATE OF $60 PER MONTH FOR THE PERIOD COMMENCING MAY 17. BOSSERMAN WERE SUSPENDED BECAUSE THE VETERANS ADMINISTRATION RECEIVED A CLAIM FOR DEATH COMPENSATION FROM GERTRUD BOSSERMAN. A FIELD EXAMINATION WAS CONDUCTED BY REPRESENTATIVES OF THE VETERANS ADMINISTRATION AND EXHAUSTIVE EFFORTS WERE MADE TO ASCERTAIN WHETHER DORSEY B. NO EVIDENCE OF SUCH DISSOLUTION WAS EVER DISCOVERED AND ON AUGUST 15. IT WAS DETERMINED THAT PAYMENTS TO RITA E. THAT AT THE TIME OF HER DEATH SHE WAS KNOWN AS RITA E. UNDER THE TERMS OF THE WILL YOU WERE NAMED EXECUTOR AND MADE THE SOLE DEVISEE AND LEGATEE.

B-131322, APR. 22, 1957

TO MR. DORSEY BOSSERMAN:

THIS REFERS TO YOUR UNDATED LETTER RECEIVED HERE MARCH 1, 1957, AND TO LETTER OF YOUR ATTORNEY, DAVID H. GILL, DATED JANUARY 10, 1957, BOTH OF WHICH CONCERN THE INDEBTEDNESS OF YOUR LATE MOTHER, RITA E. BOSSERMAN, TO THE UNITED STATES. THOSE LETTERS WILL BE REGARDED AS REQUESTS FOR A REVIEW OF THE GOVERNMENT'S CLAIM IN THE AMOUNT OF $1,170.40.

ON NOVEMBER 9, 1948, YOUR MOTHER, RITA E. BOSSERMAN, AS THE UNREMARRIED WIDOW OF DORSEY B. BOSSERMAN, WAS AWARDED A PENSION BY THE VETERANS ADMINISTRATION. THE PENSION PAYMENTS WERE TO BE AT THE RATE OF $60 PER MONTH FOR THE PERIOD COMMENCING MAY 17, 1948, THROUGH AUGUST 31, 1948, AND AT THE RATE OF $75 PER MONTH FROM SEPTEMBER 1, 1948.

ON MAY 31, 1949, PENSION PAYMENTS TO RITA E. BOSSERMAN WERE SUSPENDED BECAUSE THE VETERANS ADMINISTRATION RECEIVED A CLAIM FOR DEATH COMPENSATION FROM GERTRUD BOSSERMAN, A RESIDENT OF KOBLENS, GERMANY, WHEREIN SHE SUBMITTED PROOF OF HER MARRIAGE TO DORSEY B. BOSSERMAN ON DECEMBER 22, 1921. GERTRUD BOSSERMAN ALLEGED THAT DORSEY B. BOSSERMAN HAD COHABITED WITH HER UNTIL MARCH 1922 WHEN HE RETURNED TO THE UNITED STATES AND SHE FURTHER STATED THAT SHE HAD AT NO TIME SECURED A DIVORCE FROM DORSEY B. BOSSERMAN NOR HAD HE TO HER KNOWLEDGE SECURED A DIVORCE FROM HER.

A FIELD EXAMINATION WAS CONDUCTED BY REPRESENTATIVES OF THE VETERANS ADMINISTRATION AND EXHAUSTIVE EFFORTS WERE MADE TO ASCERTAIN WHETHER DORSEY B. BOSSERMAN HAD EVER SECURED A DISSOLUTION OF HIS MARRIAGE TO GERTRUD. NO EVIDENCE OF SUCH DISSOLUTION WAS EVER DISCOVERED AND ON AUGUST 15, 1952, THE VETERANS ADMINISTRATION ISSUED A FINDING TO THE EFFECT THAT GERTRUD BOSSERMAN SHOULD BE ACCEPTED AS THE LEGAL WIDOW OF DORSEY B. BOSSERMAN. CONSEQUENTLY, IT WAS DETERMINED THAT PAYMENTS TO RITA E. BOSSERMAN AS LEGAL WIDOW IN THE AMOUNT OF $1,170.40 CONSTITUTED AN OVERPAYMENT.

THE RECORD DISCLOSES THAT YOUR MOTHER DIED TESTATE JUNE 25, 1953; THAT AT THE TIME OF HER DEATH SHE WAS KNOWN AS RITA E. REINKE, HAVING MARRIED JULIUS REINKE SOME TIME AFTER THE DEATH OF YOUR FATHER. UNDER THE TERMS OF THE WILL YOU WERE NAMED EXECUTOR AND MADE THE SOLE DEVISEE AND LEGATEE.

THE WILL WAS PROBATED IN THE SUPERIOR COURT OF MONTEREY COUNTY, CALIFORNIA, AND ON APRIL 2, 1954, THE COURT ENTERED A DECREE OF DISTRIBUTION. ON OCTOBER 12, 1956, DEMAND WAS MADE UPON YOU FOR REPAYMENT OF THE $1,170.40 ERRONEOUSLY PAID TO YOUR MOTHER BY THE VETERANS ADMINISTRATION.

BOTH YOU AND YOUR ATTORNEY QUESTION THE VALIDITY OF THE RULING OF THE VETERANS ADMINISTRATION THAT GERTRUD BOSSERMAN SHOULD BE CONSIDERED THE LEGAL WIDOW OF DORSEY B. BOSSERMAN, AND ALSO THE RIGHT OF THE GOVERNMENT TO PURSUE ITS CLAIM WHEN SUCH CLAIM WAS FILED SUBSEQUENT TO THE TIME LIMIT PROVIDED IN THE CALIFORNIA STATUTE.

ALL FINDINGS MADE BY THE ADMINISTRATOR OF VETERANS AFFAIRS ARE FINAL AND CONCLUSIVE AS TO LAW AND FACT AND ARE NOT SUBJECT TO REVIEW BY OUR OFFICE, OR BY ANY OTHER AGENCY OF THE GOVERNMENT. IN THAT CONNECTION SEE SECTION 11A (2), TITLE 38, U.S.C. WHICH PROVIDES:

"NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, EXCEPT AS PROVIDED IN SECTIONS 445 AND 817 OF THIS TITLE, THE DECISIONS OF THE ADMINISTRATOR OF VETERANS' AFFAIRS ON ANY QUESTION OF LAW OR FACT CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER ANY ACT ADMINISTERED BY THE VETERANS' ADMINISTRATION SHALL BE FINAL AND CONCLUSIVE AND NO OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES SHALL HAVE POWER OR JURISDICTION TO REVIEW ANY SUCH DECISIONS.'

THE ADMINISTRATOR OF VETERANS AFFAIRS HAVING RULED THAT GERTRUD BOSSERMAN WAS THE LEGAL WIDOW OF DORSEY B. BOSSERMAN, SUCH FINDING UNDER THE ABOVE QUOTED SECTION IS FINAL AND CONCLUSIVE. FURTHERMORE, THE COURTS HAVE LONG SINCE HELD THAT FINDINGS OF THE ADMINISTRATOR ARE NOT SUBJECT TO JUDICIAL REVIEW. SEE UNITED STATES V. MROCH, 88 F.2D 888; LYNCH V. UNITED STATES, 292 U.S. 71; IN RE ROSA'S ESTATE, 16 N.Y.S.2D 285. IN THE MROCH CASE (SUPRA) THE COURT HELD THAT NO REVIEW OF THE AWARD OF THE VETERANS ADMINISTRATION COULD BE HAD EVEN IF IT WAS "WHOLLY UNSUPPORTED BY EVIDENCE, WHOLLY DEPENDENT ON A QUESTION OF LAW, OR CLEARLY ARBITRARY OR CAPRICIOUS.'

THE FACT THAT THE CALIFORNIA STATUTE MAY LIMIT THE TIME WITHIN WHICH A CREDITOR MAY FILE A CLAIM AGAINST AN ESTATE IS NO BAR TO THE UNITED STATES ASSERTING ITS CLAIM FOR A REFUND OF THE SUM ERRONEOUSLY PAID TO RITA E. BOSSERMAN. THE UNITED STATES SUPREME COURT IN THE CASE OF UNITED STATES V. SUMMERLIN, ANCILLARY ADMINISTRATRIX, 310 U.S. 414, 416, HELD; "IT IS WELL SETTLED THAT THE UNITED STATES IS NOT BOUND BY STATE STATUTES OF LIMITATION OR SUBJECT TO THE DEFENSE OF LACHES IN ENFORCING ITS RIGHTS.' SEE ALSO UNITED STATES V. ANDERSON, 66 F.SUPP. 870, 871, WHEREIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, SECOND DIVISION, HELD:

"THUS, IT SEEMS CLEAR THAT THE GOVERNMENT'S FAILURE TO FILE ITS CLAIM DURING THE TIME REQUIRED BY THE STATE STATUTES AND COURT ORDER DOES NOT DEFEAT ITS RIGHT TO ENFORCE ITS CLAIM * * * AGAINST THE ADMINISTRATOR OF THE DECEASED. LIKE REASONING SUSTAINS THE CONCLUSION THAT THE GOVERNMENT'S FAILURE TO FILE THE CLAIM PRIOR TO THE FINAL DECREE OF DISTRIBUTION AND DISCHARGE OF THE ADMINISTRATOR IS UNIMPORTANT TO ITS RIGHTS AGAINST THE HEIR.

"THE GOVERNMENT HERE DOES NOT SEEK TO ENFORCE ITS RIGHTS AGAINST THE ESTATE. IT SEEKS TO ENFORCE A TRUST. IT CONTENDS THAT THE HEIR HOLDS AN AMOUNT EQUAL TO THE CLAIM IN TRUST FOR IT. IT IS WELL SETTLED THAT A COURT OF EQUITY MAY ENFORCE AN EXPRESS OR CONSTRUCTIVE TRUST. BECAUSE THIS COURT'S JURISDICTION IS DERIVED FROM THE FEDERAL CONSTITUTION AND STATUTES, NOT STATE LAWS, ITS POWER TO ENTERTAIN THIS CASE UNDER ITS EQUITY FUNCTIONS AND ALSO ITS RIGHT TO EXERCISE THAT JURISDICTION HERE CAN NOT BE DOUBTED. * * *"

SINCE THERE IS NO QUESTION OF THE CONCLUSIVENESS OF THE FINDING OF THE ADMINISTRATOR AND OF THE RIGHT OF THE GOVERNMENT TO PURSUE ITS CLAIM, YOU ARE REQUESTED TO LIQUIDATE YOUR INDEBTEDNESS TO THE UNITED STATES WITHOUT FURTHER DELAY IN ORDER TO AVOID THE NECESSITY OF INSTITUTING FORMAL COLLECTION PROCEEDINGS.

PLEASE MAKE YOUR CHECK OR MONEY ORDER PAYABLE TO THE "UNITED STATES GENERAL ACCOUNTING OFFICE.'