B-157528, SEP. 23, 1965

B-157528, SEP. 23, 1965

TO MR. ANTHONY NOVAK, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF STATE:

YOUR LETTER OF AUGUST 18, 1965, TO WHICH YOU ATTACHED A VOUCHER IN THE AMOUNT OF $113.39, REPRESENTING ANNUITY FOR THE PERIOD JUNE 1 TO 17, 1965, ON WHICH LATTER DATE THE ANNUITANT, MRS. ETHEL R. LOOP, DIED, ASKS WHETHER UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IN FAVOR OF MARY LOOP SLEEPER, EXECUTRIX AND SOLE BENEFICIARY.

YOU SAY THAT THE ANNUITY WAS GRANTED BY THE SECRETARY OF STATE, PURSUANT TO SECTION 5, PUB.L. 84-503, 22 U.S.C. 1079D, READING AS FOLLOWS:

"IN ANY CASE WHERE A PARTICIPANT UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM DIED BEFORE AUGUST 29, 1954, LEAVING A WIDOW WHO IS NOT ENTITLED TO RECEIVE AN ANNUITY UNDER THE SYSTEM AND WHO IS NOT RECEIVING BENEFITS AS A WIDOW UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, THE SECRETARY OF STATE IS AUTHORIZED AND DIRECTED TO GRANT SUCH WIDOW AN ANNUITY OF $2400 PER ANNUM.'

YOU POINT OUT THAT PARAGRAPH 673.2-5, FOREIGN AFFAIRS MANUAL, VOLUME 3, PROVIDES THAT SUCH ANNUITIES ARE PAYABLE FROM THE FIRST DAY OF THE MONTH IN WHICH THE APPLICATION FOR THE ANNUITY IS RECEIVED IN THE DEPARTMENT, BUT MAKES NO PROVISION FOR THE TERMINATION THEREOF.

WE NOTE YOUR STATEMENT THAT SINCE THE ENACTMENT OF THE ABOVE-QUOTED PROVISION IN 1956 A TOTAL OF FIVE WIDOWS GRANTED ANNUITIES THEREUNDER HAVE DIED AND IN EACH CASE SUCH ANNUITIES WERE ADMINISTRATIVELY TERMINATED AT THE END OF THE MONTH IMMEDIATELY PRIOR TO THE DATE OF DEATH.

YOU INVITE ATTENTION TO 22 U.S.C. 1076 (B) WHICH PROVIDES, AMONG OTHER THINGS, THAT SURVIVOR ANNUITIES TERMINATE "UPON THE DEATH OF SUCH SURVIVING WIFE OR HUSBAND," AND THAT THEREUNDER SUCH ANNUITIES ARE PAID FOR THE PARTIAL MONTH IN WHICH DEATH OCCURS.

FOR FUTURE GUIDANCE IN THE PAYMENT OF ANNUITIES GRANTED PURSUANT TO SECTION 5 OF PUB.L. 84-503, YOU REQUEST ANSWERS TO THE FOLLOWING QUESTIONS:

"1. IS THE WIDOW'S ESTATE ENTITLED TO THE PARTIAL MONTH'S ANNUITY FOR THE MONTH IN WHICH DEATH OCCURS IN THE SAME MANNER AS A SURVIVOR ANNUITY PAID PURSUANT TO THE PROVISIONS OF SECTION 821/B) OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED.$

"2. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE, COULD THE DEPARTMENT OF STATE PAY THE PRACTICAL ANNUITY IN THOSE CASES WHERE THERE IS AN INDICATED FINANCIAL HARDSHIP RESULTING FROM LONG ILLNESS AND HEAVY MEDICAL EXPENSES IMMEDIATELY PRIOR TO THE DEATH OF SUCH WIDOW?

IN THE LEGISLATIVE HISTORY COVERING THE PROPOSED LEGISLATION TO EXTEND BENEFITS TO WIDOWS NOT THEN ELIGIBLE H.REPT. NO. 1869, 84TH CONG., 2D SESS; PAGE 3, CONTAINS THE FOLLOWING STATEMENT CONCERNING SECTION 5, PUB.L. 84-503, 22 U.S.C. 1079D, AS AMENDED, QUOTED ABOVE:

" * * * THE CONFEREES DELETED ANY REFERENCE TO LOANS OR GRANTS TO ASSIST THEM AND SUBSTITUTED A PROVISION FOR AN ANNUITY. * * * "

IT IS EVIDENT FROM THE LANGUAGE OF 22 U.S.C. 1079D SET OUT ABOVE AND THE ABOVE-QUOTED STATEMENT THAT AN "ANNUITY" WAS CONTEMPLATED RATHER THAN A "GRATUITY" OR GRANT.' IN THE CASE OF ANDERSON V. UNITED STATES, 205 FED.2D 326, CONCERNING A COMPARABLE SITUATION, IT WAS DETERMINED THAT THE ACT GRANTING ANNUITIES TO WIDOWS WHO HAD RESIDED WITH THEIR HUSBANDS FOR AT LEAST ONE YEAR DURING THE CONSTRUCTION OF THE PANAMA CANAL, LONG AFTER THAT EVENT HAD TRANSPIRED, CREATED A STATUTORY RIGHT IN THE ANNUITANT UPON PROPER APPLICATION THEREFOR WHICH RIGHT PASSED TO HER ESTATE UPON DEATH AND COULD BE ENFORCED BY THE EXECUTOR. COMPARE 24 COMP. GEN. 61; B- 156170, MARCH 17, 1965; HEIRS OF EMERSON V. HALL, 13PET. 409, CONCERNING "GRATUITIES" WHICH LAPSE AT DEATH AND DO NOT BECOME A PART OF THE DECEDENT'S ESTATE.

IN THE ABSENCE OF LANGUAGE IN THE LAW (SS U.S.C. 1079D) CONCERNING THE TERMINATION DATE OF SUCH ANNUITY, WE SEE NO REASON WHY THE DATE OF DEATH SHOULD NOT GOVERN. THIS WOULD CONFORM WITH THE PRACTICE UNDER 22 U.S.C. 1076/B) CONCERNING SURVIVOR ANNUITIES. THEREFORE, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE MAKING IT UNNECESSARY TO ANSWER QUESTION 2.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.