B-133448, OCT. 9, 1957

B-133448: Oct 9, 1957

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HE STATES THAT THIS WAS DONE AT THE INSISTENCE OF THE AIR FORCE. IS CURRENTLY ACTIVE. THAT PAYMENTS HAVE BEEN RELEASED IN THE AMOUNT OF $91.30 SINCE THAT DATE. TO CURRENT DATE WERE DUE THE PAYEE. WHICH WAS IN EFFECT AT THE TIME THESE CHECKS WERE NEGOTIATED. THE QUESTION OF THE COMPLIANCE OF AN ENDORSEMENT WITH REGULATIONS OF THE TREASURY DEPARTMENT IS PRIMARILY FOR CONSIDERATION OF THAT DEPARTMENT AND WE WILL NOT OBJECT IF THAT DEPARTMENT WAIVES THAT REQUIREMENT IN THIS INSTANCE. THE RECORD SUBSTANTIATES THE ALLEGATION THAT LEOLA EXECUTED A GENERAL POWER OF ATTORNEY TO WILLIS WHICH INCLUDED AUTHORITY TO NEGOTIATE CHECKS IN HER NAME AND THAT SUCH POWER OF ATTORNEY WAS NEVER SPECIFICALLY REVOKED.

B-133448, OCT. 9, 1957

TO MRS. IVY BAKER PRIEST, TREASURER OF THE UNITED STATES:

BY LETTER OF APRIL 30, 1957, CC-455-MC-LB, THE SPECIAL ASSISTANT TREASURER FORWARDED TO US THE FILE RELATIVE TO SIX AIR FORCE CLASS Q ALLOTMENT CHECKS FOR $91.30 EACH, DRAWN BY C. W. GRIFFIN, SYMBOL 128, TO THE ORDER OF LEOLA W. MARRIMAN, FOR A RULING AS TO THE VALIDITY OF THE PAYEE'S CLAIM FOR THE PROCEEDS OF THE CHECKS AND THE DISPOSITION TO BE MADE OF THE AMOUNT RECOVERED FROM THE ENDORSERS WHO SUSTAINED THE LOSS UPON RECLAMATION.

THE RECORD DISCLOSES THAT PAYEE'S HUSBAND, WILLIS C. MARRIMAN, JR., A/2C, AF 11013516, TOOK OUT THE ALLOTMENT TO HIS WIFE IN AUGUST 1955. HE STATES THAT THIS WAS DONE AT THE INSISTENCE OF THE AIR FORCE; THAT HE DID NOT WANT TO DO SO SINCE HIS WIFE HAD LEFT HIM IN JUNE 1955; THAT HE DID NOT KNOW HER WHEREABOUTS AT THAT TIME AND HENCE HAD THE CHECKS SENT TO HIS ADDRESS. PAYEE'S HUSBAND ACKNOWLEDGES NEGOTIATING AND RECEIVING THE PROCEEDS OF THE SIX CHECKS WHICH COVER THE PERIOD FROM AUGUST 1955 THROUGH JANUARY 1956, INCLUSIVE, AFTER HAVING ENDORSED THEM IN HIS WIFE'S NAME, FOLLOWED BY HIS OWN NAME AND AIR FORCE IDENTIFICATION NUMBER. WILLIS ALLEGES THAT LEOLA EXECUTED AN UNLIMITED POWER OF ATTORNEY TO HIM IN SEPTEMBER 1943, WHICH INCLUDED THE AUTHORITY TO NEGOTIATE HER CHECKS, BUT SUCH POWER OF ATTORNEY COULD NOT BE LOCATED AT THE TIME OF THE INVESTIGATION. LEOLA ACKNOWLEDGES EXECUTING SUCH A POWER OF ATTORNEY AND ADMITS THAT SHE NEVER SPECIFICALLY REVOKED IT, BUT STATES THAT SHE BELIEVED IT TO BE NO LONGER IN FORCE AND EFFECT AFTER HER DIVORCE FROM AND REMARRIAGE TO WILLIS IN 1950. WILLIS FURTHER ALLEGES THAT HE LOCATED LEOLA DURING THE PERIOD COVERED BY THE SIX CHECKS AND SENT HER MONEY SEVERAL TIMES AT HER REQUEST SO THAT SHE COULD JOIN HIM IN FLORIDA, WHERE HE MAINTAINED AN APARTMENT ON THE STRENGTH OF HER PROMISE TO DO SO. LEOLA DOES NOT DENY THIS ALLEGATION. THE DEPARTMENT OF THE AIR FORCE REPORTED UNDER DATE OF JULY 5, 1957, THAT THE ALLOTMENT ESTABLISHED BY WILLIS IN BEHALF OF LEOLA EFFECTIVE AUGUST 1, 1955, IS CURRENTLY ACTIVE; THAT PAYMENTS HAVE BEEN RELEASED IN THE AMOUNT OF $91.30 SINCE THAT DATE; AND THAT ALL SUCH CHECKS RELEASED FOR THE PERIOD AUGUST 1, 1955, TO CURRENT DATE WERE DUE THE PAYEE.

SECTION 5, TREASURY DEPARTMENT CIRCULAR NO. 21, REVISED SEPTEMBER 5, 1946, WHICH WAS IN EFFECT AT THE TIME THESE CHECKS WERE NEGOTIATED, AS WELL AS THE SUBSEQUENT REVISION OF MARCH 13, 1957, NOW IN EFFECT, REQUIRE A SPECIFIC POWER OF ATTORNEY FOR THE NEGOTIATION OF ALLOTMENT CHECKS BY ONE OTHER THAN THE PAYEE EXCEPT THAT THEY MAY BE NEGOTIATED BY A BANK HOLDING A SPECIAL POWER OF ATTORNEY LIMITED TO A PERIOD NOT IN EXCESS OF 12 MONTHS. HOWEVER, THE QUESTION OF THE COMPLIANCE OF AN ENDORSEMENT WITH REGULATIONS OF THE TREASURY DEPARTMENT IS PRIMARILY FOR CONSIDERATION OF THAT DEPARTMENT AND WE WILL NOT OBJECT IF THAT DEPARTMENT WAIVES THAT REQUIREMENT IN THIS INSTANCE. THE RECORD SUBSTANTIATES THE ALLEGATION THAT LEOLA EXECUTED A GENERAL POWER OF ATTORNEY TO WILLIS WHICH INCLUDED AUTHORITY TO NEGOTIATE CHECKS IN HER NAME AND THAT SUCH POWER OF ATTORNEY WAS NEVER SPECIFICALLY REVOKED. NO CLEAR AUTHORITY HAS BEEN FOUND IN SUPPORT OF LEOLA'S CONTENTION THAT THE POWER OF ATTORNEY WAS AUTOMATICALLY REVOKED BY HER DIVORCE FROM WILLIS IN 1950. EVEN IF THE CHANGE IN THE MARITAL STATUS OF THE PARTIES TO THE POWER OF ATTORNEY AT THAT TIME MIGHT BE CONSIDERED AS AUTOMATICALLY REVOKING THE POWER OF ATTORNEY, WHICH APPEARS TO BE THE BASIS OF LEOLA'S CONTENTION, THEIR SUBSEQUENT REMARRIAGE A SHORT TIME LATER MIGHT BE CONSIDERED AS REINSTATING IT. HENCE, EVEN THOUGH THE POWER OF ATTORNEY, BEING LOST, WAS NOT PRESENTED BY WILLIS TO THE PARTIES TO WHOM HE NEGOTIATED THE CHECKS, IT APPEARS THAT HE NEGOTIATED THEM UNDER SOME COLOR OF AUTHORITY TO DO SO. MOREOVER, THE RECORD SHOWS THAT WILLIS SENT UNSTATED SUMS OF MONEY TO LEOLA AND MAINTAINED AN APARTMENT FOR THE PURPOSE OF PROVIDING A HOME FOR HER ON HER RETURN TO HIM. THUS IT APPEARS THAT LEOLA RECEIVED SOME BENEFIT FROM THE PROCEEDS OF THE SIX CHECKS. IN ADDITION, LEOLA APPARENTLY IS STILL MARRIED TO WILLIS IN VIEW OF THE AIR FORCE REPORT THAT SHE IS STILL RECEIVING ALLOTMENT CHECKS BASED UPON HIS SERVICE THEREIN. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT, DESPITE POSSIBLE QUESTIONS AS TO THE VALIDITY OF THE POWER OF ATTORNEY AND THE PROPRIETY OF CASHING FAMILY ALLOWANCE CHECKS UNDER THE AUTHORITY THEREOF, THE NEGOTIATION OF THESE CHECKS BY WILLIS CONSTITUTES A FAMILY MATTER FOR SETTLEMENT BETWEEN HIM AND HIS WIFE AND NOT A MATTER IN WHICH THE GOVERNMENT SHOULD BECOME INVOLVED.

ACCORDINGLY, THE CLAIM OF LEOLA W. MARRIMAN FOR THE PROCEEDS OF THE SIX CHECKS HERE INVOLVED SHOULD BE DISALLOWED AND THE AMOUNTS RECOVERED ON RECLAMATION SHOULD BE RETURNED TO THE ENDORSERS SUSTAINING THE LOSS.